How Trump’s legal woes could affect a future presidency

Apr 12, 2024

Ella Lee, The Hill

ERIE, PENNSYLVANIA – JULY 29: Former U.S. President Donald Trump leaves after speaking to supporters during a political rally while campaigning for the GOP nomination in the 2024 election at Erie Insurance Arena on July 29, 2023 in Erie, Pennsylvania. (Photo by Jeff Swensen/Getty Images)

Until Donald Trump, a former president had never faced criminal charges — but neither has an elected one.

Trump was arraigned in Washington federal court Thursday on charges linked to his efforts to overturn the results of the 2020 presidential election. It was his third arraignment this year, after he was indicted in a New York hush money probe and a federal investigation into his alleged mishandling of classified records. Altogether, Trump faces 78 criminal charges — with a fourth indictment in Georgia likely on the way.

But the former president is still pummeling competition in the 2024 GOP presidential primary. Trump’s closest competitor, Florida Gov. Ron DeSantis, is more than 30 percentage points behind in the polls, according to RealClearPolitics’s average. Other Republican candidates have not polled higher than 6 percent.

Trump could also prove a fierce competitor to President Biden if the pair go head-to-head again in 2024. A hypothetical match-up found the two candidates deadlocked, according to a New York Times/Siena College poll released earlier this week.

As the former president’s legal troubles mount — and as the 2024 race heats up — questions about his would-be presidency in the event of reelection are swirling.

“We faced a bigger constitutional crisis when the country had a Civil War,” said Alan Rozenshtein, a law professor at the University of Minnesota. “Other than that, I think this is the worst thing we’ve faced.”

Here’s what we know about how Trump’s legal woes could affect a future presidency.

None of the charges Trump faces would bar him from running for president or assuming that role.

“There’s no question that he can be president while indicted,” Rozenshtein said. “Indicted just means that there’s a criminal process going on against you; it doesn’t mean that you’ve been found guilty.”

There are three constitutional requirements to run for president: being a natural-born citizen, a U.S. resident for at least 14 years and at least 35 years old. American voters decide the rest. Whether a candidate has been accused or convicted of a crime has no bearing on their ability to run for president or to ascend to the nation’s highest office.

Some civil rights organizations have posited Trump violated the 14th Amendment for his role in the Jan. 6, 2021, Capitol attack, and that such a violation would prevent him from holding office.

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion,” a clause in the amendment reads.

But it’s not clear whether the events of Jan. 6 rise to the level of “insurrection or rebellion against” the United States, or if the clause bans people from being president, because it’s not explicitly mentioned.

Those questions would have to be answered in the courts before Trump could be stopped from holding office.

If Trump is reelected before the cases against him are resolved, efforts to delay them until after his presidency would likely succeed, according to Barbara McQuade, a former U.S. attorney and current law professor at the University of Michigan.

The Justice Department’s Office of Legal Counsel (OLC) argued in an October 2000 opinion detailing a sitting president’s exposure to criminal prosecution that a criminal case would be too distracting for the nation’s leader, and therefore, not in the country’s best interests.

“For the same reason that the sitting president cannot be indicted, I think that he could not be required to defend himself in a criminal case while serving as president,” she said.

If Trump were convicted and given the highest prison sentence available on each charge he faces, he would face hundreds of years in prison. But that outcome is unlikely because the reality of Trump’s situation is much more complicated.

None of the crimes Trump faces carries a mandatory minimum sentence, and judges rarely hand down the maximum sentence to first-time offenders. Both state and federal judges are given broad discretion in sentencing.

Plus, given his status and Secret Service protection, the logistics of jailing Trump would be “very complicated,” McQuade said.

“If he is sentenced, I think it is most likely that he will be sent to home confinement,” she said.

However, even if Trump were jailed, there is nothing legally that would prevent him from serving as president.

In that case, McQuade said she thinks Trump would be released. Rozenshtein said he “can’t imagine any judge” who wouldn’t — at the very least — pause Trump’s incarceration until his presidency concluded.

Trump is the first former president to face criminal charges, but he’s not the only presidential candidate to be indicted — or convicted — of crimes.

Socialist and labor leader Eugene V. Debs ran for president five times — the fifth of which, in 1920, he ran from prison after being convicted of sedition for protesting World War I, according to a biography in Middle Tennessee State University’s “First Amendment Encyclopedia.” He campaigned as “Convict No. 9653” and earned about 3.4 percent of the popular vote.

Former Texas Gov. Rick Perry also ran for president while under indictment, and conspiracist Lyndon LaRouche and “Tiger King” star Joe Exotic launched presidential bids after convictions.

Rozenshtein said the question of whether a president could pardon themselves is “hotly debated among scholars,” but it’s unclear who, if anyone, would have any say to challenge such action.

An August 1974 opinion by the OLC contended that a president cannot pardon themselves under the “fundamental rule that no one may be a judge in his own case.”

However, the DOJ office also argued that if the 25th Amendment was invoked — temporarily designating a vice president the acting president — the acting president could pardon the elected president. After the fact, the elected president could resume the duties of his office, the office argued.

Still, that theory has never been tested in court, McQuade noted. Rozenshtein said that any such theories are speculative until they are tested.

“This is a class of questions that has no answer until some authoritative institution — specifically the Supreme Court — gives us an answer,” he said.

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