Former President Donald Trump's "BIG" announcement coincides with the increasing likelihood that he will be charged, perhaps convicted, and possibly even incarcerated for one or more federal or state offenses. This leads one to wondering whether he could still run for president again under any of those conditions.
Could Trump campaign from jail? Absolutely.
He couldn't even claim that America's never seen anything like it.
By Marshall H. Tanick
November 16, 2022 at 11:45PM
The answer is decidedly "yes."
The most significant risk he faces in the many venues in which he is undergoing scrutiny may be for potential federal charges arising out of his maintaining and secreting confidential and classified documents, including those relating to national security. That conduct could violate at least three federal laws, including the Espionage Act.
But criminal charges, convictions, even imprisonment would not bar him from becoming president, even if he is behind bars.
The Constitution sets three qualifications for president: 35 years of age, natural-born citizen and 14 years of residence here. Trump satisfies those, and these conditions are exclusive. Courts have held that imposing additional requirements outside of those prescribed in the Constitution is impermissible.
Late in 2019, California passed a law requiring that candidates appearing on the presidential primary ballot had to have disclosed their tax returns. Then-President Trump had not, which would have eliminated him from being on the ballot. But the California Supreme Court ruled that the prohibition was unconstitutional. Trump won the 2020 primary, before being trounced by Joe Biden in the general election there.
The same rationale applied in a U.S. Supreme Court case 20 years earlier, in which the justices threw out a state law establishing term limits for members of the House. It reasoned that the constitutional requirements for House members — 25 years of age, seven years' citizenship and an inhabitant of the state in which they are running — are exclusive.
Thus, being charged with a crime, even a serious one, convicted or imprisoned, cannot constitutionally disqualify Trump, or anyone else, from running for president and serving in that office, although it might become a little bit awkward trying to run the country from a jail cell. (Yet another impeachment might follow.)
An incarcerated candidate has mounted a campaign for president before, and even experienced a measure of success. Eugene Debs, a well-known socialist and labor leader of the late 19th century and early 20th century, ran for president in 1920 despite the inconvenience of being locked up in federal prison in Atlanta.
Debs, a former Democrat, had run for president four times previously under the Socialist banner. He reached his high water mark in the jailbird campaign of 1920, when he attracted nearly a million votes, 3.4% of the electorate, which went overwhelmingly that year for Republican Warren G. Harding.
Debs had been imprisoned in 1918 for speaking out against America's involvement in World War I, specifically for discouraging men from cooperating with the military draft. His 10-year sentence was commuted by incoming President Harding in 1921, and Debs was released, five years before he died.
Debs, by the way, had done particularly well in Minnesota, where Harding captured an enormous 70% of the vote. Minnesota, then a Republican stronghold, gave the Socialist Debs 56,000 votes, or 7.6% of the total, enough to outpoll the hapless Democratic candidate in six of the state's counties.
While Debs had no realistic chance of being elected, no one had disputed his eligibility for the presidency, demonstrating that being charged, convicted, and even incarcerated for a crime would not legally bar Trump, the erstwhile president, from seeking office again.
There would be obvious difficulties in trying to run a quasi-oval office from a jail cell. Cabinet meetings, news conferences and summits with foreign heads of state would be awkward, let alone arranging for Secret Service protection from adjoining cellblocks.
But the former president has broken the mold in many unexpected ways. The next chief executive's apparel might not be pinstripes but stripes of a different kind.
Incidentally, the offense for which Debs was convicted and imprisoned during his presidential run? Violation of the Espionage Act.
Marshall H. Tanick is a Twin Cities employment and constitutional law attorney.
about the writer
Marshall H. Tanick
If our 19th-century forebears were to return and examine the criminal justice system of today, they would probably be appalled by our long sentences and the lack of opportunity for mercy.
