Donald Trump is the first former president to be charged with a crime after leaving office. But it doesn’t prevent him from continuing his campaign to return to the White House as president in 2024.
Even a guilty verdict in either of the cases pending against him would not disqualify Trump’s bid for office, according to Anna G. Cominsky, a professor at New York Law School, or keep him from serving if he were elected.
“There are actually not that many constitutional requirements to run for president,” Cominsky said. “There is not an explicit prohibition in the Constitution in respects to having a pending indictment or even being convicted.”
Trump announced on social media Thursday night that he’s been charged by the Justice Department in connection with the discovery that hundreds of classified documents were taken to Mar-a-Lago, his private golf club and residence in South Florida, after he left the White House in 2021. He called the federal case a hoax and professed his innocence.
Separately, the former president is charged in Manhattan with nearly three dozen felony counts related to payments that were intended to silence an adult-film actress during his 2016 presidential campaign. Trump has pleaded not guilty in that case and a trial is scheduled to begin in late March, a few weeks after Super Tuesday.
The Constitution includes three requirements to run for president: A candidate must be at least 35 years old, have been born in the United States or a territory and have resided in the United States for at least 14 years, according to Caroline Fredrickson, a law professor at Georgetown Law School.
Beyond that, there are few restrictions to holding the presidency — or any lower elected office. Among the exceptions: “Engaging in insurrection or rebellion,” a provision that was codified in the 14th Amendment in the post-Civil War Reconstruction Era. A New Mexico judge disqualified a county commissioner from holding office in 2022 because the person had participated in the attack on the U.S. Capitol on Jan. 6, 2021.
Some advocates and left-leaning legal observers have similarly argued that Trump — who is leading in most Republican polls — should be disqualified from holding office, alleging that he played a role in inciting that attack.
Jack Smith, the special counsel appointed by Attorney General Merrick Garland to lead the classified documents case, also is investigating Trump’s role in efforts to undo the results of the 2020 election. That investigation is seeking to determine whether anyone who was not physically present at the riot at the U.S. Capitol committed crimes. But the federal government rarely charges anyone with incitement, and many legal experts have expressed skepticism that the 14th Amendment could prevent Trump from seeking another term in the White House.
While being convicted of a felony does not prevent people from running for president, it can restrict their right to vote in elections. According to the National Conference of State Legislatures, people convicted of certain felonies in 11 states lose their voting rights indefinitely, requiring a governor’s pardon for voting rights to be restored.
Voters in Florida, where Trump resides, decided in 2018 to overturn a voting ban for most felons who have completed their sentences, though Florida Gov. Ron DeSantis (R), also seeking the Republican nomination for president, has since enacted some additional restrictions.
“People are subject to different roles as voter than as candidate,” Fredrickson said. “If Donald Trump were convicted of a felony, he would be barred from voting for himself in certain states.”
Trump is not the first person to be indicted and run for president.
In 1920, Eugene V. Debs ran for president as a Socialist after being found guilty of sedition and imprisoned in the federal penitentiary in Atlanta for speaking out against the draft during World War I. Outside the jail, his supporters handed out photos of Debs in convict denim along with campaign buttons for “Prisoner 9653.”
Debs received 913,693 votes, though no electoral college votes.
Former Texas governor Rick Perry competed with Trump and others for the 2016 Republican presidential nomination after a Texas grand jury indicted him on allegations that he abused his power when he vetoed funding to a state agency. Perry has said that the charges — which were dismissed after he dropped out of the presidential race — hurt his campaign.
Analysts say Trump’s indictments and subsequent legal proceedings could affect his candidacy in both positive and negative ways. Some of Trump’s advisers have said legal controversy and drama are favorable terrain for Trump: back in the center of attention as the dominant figure in his party.
A number of his rivals for the Republican nomination have come to his defense. But Trump’s advisers also acknowledged the pitfalls of his legal peril and the challenges of simultaneously mounting a presidential run and facing a criminal trial.
The campaign operation is separate from Trump’s legal team, and the two do not always act in concert, advisers said. And the candidate does not always take advice from either team.
The Trump campaign is aiming to position his forthcoming prosecution as part of the vast “witch hunt” targeting the former president. It has framed the numerous investigations surrounding him as politically motivated.
“This is the new normal. The president has been battle-tested,” Trump campaign spokesman Steven Cheung said earlier this year. “This operation has been fine-tuned since 2016. Dealing with these types of news cycles, you learn to get good at it. We have a full-spectrum response operation on the campaign that can deal with anything that comes our way.”
