Former President Donald Trump was indicted by the Manhattan district attorney on Thursday for his role in paying alleged hush money to a porn star. The move raised a number of legal questions as Trump vies for the 2024 Republican presidential nomination; one of them being—do criminal charges disqualify Trump from being elected president?
The short answer is that even if Trump is convicted, the charges against him won’t disqualify him from the presidency, legal experts tell TIME.
“There is no constitutional bar on a felon running for office,” says Richard Hasen, an election law professor at UCLA Law School. “And given that the U.S. Constitution sets presidential qualifications, it is not clear that states could add to them, such as by barring felons from running for office.”
Under the constitution, all natural born citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president. There is no legal impediment to Trump continuing his presidential campaign while facing criminal charges—even if he were jailed, legal experts say.
In a statement released Thursday evening, Trump denied wrongdoing and characterized the probe by Manhattan District Attorney Alvin Bragg as part of a “witch hunt” against him. Earlier this month, Trump told reporters at the annual Conservative Political Action Conference that he would “absolutely” stay in the race for president even if he were to be criminally indicted. “I wouldn’t even think about leaving,” he said. “Probably, it’ll enhance my numbers.”
Trump’s campaign and his lawyer Joe Tacopina did not respond to requests for comment Thursday evening.
“It’s simultaneously embarrassing, but also makes him something of a martyr,” says Saikrishna Prakash, a distinguished constitutional law professor at the University of Virginia Law School. Legal experts and political pundits on Thursday evening were rushing to join the conversation about how the indictment might impact Trump’s presidential chances. Some said it could help Trump, thrusting him into the national spotlight as he aims to be the dominant figure of his party. Alan Dershowitz, a Harvard law professor, said on Newsmax that a mugshot of Trump could serve as a campaign poster for his campaign. “He will be mugshot and fingerprinted. There’s really no way around that,” he said.
And while Trump is the first former president to be charged with a crime, he’s far from the first presidential candidate to run despite criminal charges. At least two candidates with criminal convictions have even run for president in the past, albeit unsuccessfully. Hasen, of UCLA Law, noted that in 1920 a candidate named Eugene Debs ran for president while in a federal prison in Atlanta as the nominee of the Socialist Party. Debs was convicted of violating the Espionage Act over an anti-war speech, and won more than 3% of the vote nationally. Another convicted presidential candidate, Lyndon LaRouche, ran for president in every election between 1976 and 2004. LaRouche, a fringe candidate who embraced conspiracy theories, was convicted of tax and mail fraud in 1988 and ran his 1992 campaign from prison.
But while it might be legally possible for Trump to run for president even if he is convicted, a number of practical hurdles could make campaigning more difficult. For example, if he were to be sentenced to jail, Prakash says, that would inhibit his ability to conduct a campaign—but it wouldn’t necessarily inhibit his ability to win. The New York judge assigned to Trump’s case could have the ultimate decision on whether the former president can campaign while under indictment, though it seems unlikely that prosecutors would seek to detain the former president or restrict his campaign travel while the case is pending. In most white-collar crime cases like the one Trump faces, the defendant is immediately released following charges.
“I cannot imagine that Trump would be convicted, and sent to jail, before the 2024 election season is over,” Hasen says.
The legalities become more murky if Trump were to win the presidency while facing impending charges or a conviction. “The Office of Legal Counsel has said you can’t indict or prosecute or punish a sitting president,” Prakash says. “They’ve never had to discuss, to my knowledge, what happens if someone becomes president after being prosecuted or while in jail.”
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