Even if charged, convicted and incarcerated, Trump can still be president

A modest proposal in the tradition of Eugene Debs

November 18, 2022 6:00 am

Could the Oval be replicated in a jail cell? Photo by Alex Wong/Getty Images.

The recent declaration by former President Trump that he is running for a second term coincides with the increasing likelihood that he will be charged, perhaps convicted, and even possibly incarcerated for one or more federal or state offenses. 

Could he still run for president again if any of those conditions occur? The answer is decidedly “Yes,” even if locked up.  

The most significant risk he faces in the many venues in which he is undergoing scrutiny may be for potential federal charges for maintaining and secreting confidential and classified documents, including those relating to national security. That behavior could be covered under at least three federal laws, including the Espionage Act.

But criminal charges and convictions — even imprisonment — would not bar him from becoming president.

The Constitution in Article II, Section 1 sets three qualifications for president: 35 years of age; natural born citizen; and 14 years of residence here. The former president satisfies all of those three.  

These conditions are exclusive. The courts have held that imposing additional requirements outside of those prescribed in the Constitution are impermissible. Late in 2019, California passed a law requiring that candidates appearing on presidential primary ballots disclose their tax returns. Trump had not, and still hasn’t, which would have eliminated him from being on the presidential ballot in that state. 

The California Supreme Court, in Patterson v. Padilla, ruled that the prohibition was unconstitutional, and, therefore, the president was allowed on the ballot. He won the 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 U. S. Term Limits, Inc. v. Thornton, in which the justices threw out a state law establishing term limits for members of the House of Representatives. It reasoned that the Constitutional requirements in Article I, Section 2 are exclusive: 25 years of age; seven years citizenship; and an inhabitant of the state — but not necessarily the district — from which they are running. The requirements for the Senate in Article I, Section 3 differ slightly: 30 years of age; nine years citizenship; and an inhabitant of the state.

The Minnesota Constitution prescribes in Article V, Section 2 the limited requirements for governor and lieutenant governor: citizenship; 25 years of age; and a state resident for the past year. As for members of both chambers of the state Legislature, Article VI, Section 6 provides eligibility for qualified voters, regardless of age, who have lived in the state for a year and have lived for six months in the district they seek to represent. 

Thus, charged with a crime, even a serious one, convicted, or imprisoned, Trump is not constitutionally forbidden from becoming president, although it might be awkward trying to run a campaign from a jail cell. 

But someone has tried to do it, and despite long odds experienced a measure of success. Eugene Debs, the socialist labor leader of the late 19th century and early 20th century, ran for president in 1920 despite the dilemma of seeking the office while in federal prison in Atlanta.

Debs, a former Democrat, had run for president four times previously, under the Socialist Party banner. He reached his high water mark in 1920, when he obtained nearly a million votes, 3.4% of the electorate, which otherwise went overwhelmingly for Republican Warren G. Harding over the Democratic challenger, James Cox.

The number of votes that Debs drew — from prison — nearly doubled the previous Socialist candidate. But Debs actually did better on a percentage basis eight years earlier, gaining 6% of the votes in a four-way race. (The 1920 turnout was much greater because it was the first time women could vote across the country after enactment of the 19th amendment.)

Debs was imprisoned in 1918 for speaking out against America’s involvement in World War I, particularly for discouraging men from cooperating with the military draft. He was sentenced to a 10-year prison term, although his sentence was commuted by Harding in 1921, five years before Debs died. 

Eugene Debs, upon being released from prison, Christmas Day, 1921. Photo courtesy of Library of Congress.

Debs did remarkably well in Minnesota, where Harding captured an enormous 70% of the vote. Minnesota gave Debs 56,000 votes or 7.6% of the total. In six counties Debs scored above the hapless Democratic challenger. 

Although Debs had no realistic chance of being elected, no one disputed his eligibility for the presidency, demonstrating that being charged, convicted and even incarcerated for a crime would not bar the erstwhile president from seeking office again.

There would be obvious infirmities in trying to run a quasi-Oval Office from a prison cell, to say nothing of meetings with White House staff, the cabinet and foreign dignitaries. The Secret Service would face a tough challenge, and Trump’s blue suit and red tie wardrobe would get a government-issued makeover.  

But the former president has already broken the mold in many unexpected ways. Running for president from jail would seem highly unlikely, but not impossible. He could study and emulate Debs the socialist.                

Incidentally, the offense for which Debs was convicted and imprisoned during his presidential run? Violation of the Espionage Act.

A version of this commentary was previously published in the Star Tribune. 

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.