By Stefanie Lindquist
A Manhattan grand jury has voted to indict former President Donald Trump. The specific state charges, reports The New York Times, “remain a mystery” but will be related to the Manhattan district attorney’s investigation of Trump for making hush money payments to a porn star just before the 2016 presidential election.
It’s the first time a U.S. president or former president has been indicted.
At the same time, Trump is expected to continue his campaign for the presidency, seeking to regain in 2024 the position he lost in 2020 to Joe Biden.
What are the consequences of an indictment and potential trial for his campaign and, if his effort is successful, his future presidency?
Article II of the U.S. Constitution sets forth very explicit qualifications for the presidency: The president must be 35 years of age, a U.S. resident for 14 years and a natural-born citizen.
In cases involving analogous qualifications for members of Congress, the Supreme Court has held that such qualifications form a “constitutional ceiling” – prohibiting any additional qualifications to be imposed by any means.
Thus, because the Constitution does not require that the president be free from indictment, conviction or prison, it follows that a person under indictment or in prison may run for the office and may even serve as president.
This is the prevailing legal standard that would apply to former President Trump. The fact of his indictment and potential trial is irrelevant to his qualifications for office under the Constitution.
Nevertheless, there seems no question that indictment, conviction or both – let alone a prison sentence – would significantly compromise a president’s ability to function in office. And the Constitution doesn’t provide an easy answer to the problem posed by such a compromised chief executive.
Joe Raedle/Getty Images
Governing from jail?
A presidential candidate could be indicted, prosecuted and convicted by either state or federal authorities. Indictment for a state crime may seem less significant than federal charges brought by the Department of Justice.
Ultimately, though, the spectacle of a criminal trial in state or federal court would have a dramatic effect on a presidential campaign and on the credibility of a president, if elected.
All defendants are presumed innocent until proved guilty. But in the case of conviction, incarceration in state or federal prison involves restrictions on liberty that would significantly compromise the president’s ability to lead.
This point – that functioning as president would be difficult while under indictment or after being convicted – was made plain in a 2000 memo written by the Department of Justice. The memo reflected on a 1973 Office of Legal Counsel memo produced during Watergate titled “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” The background to the 1973 memo was that President Richard Nixon was under investigation for his role in the Watergate break-in and Vice President Spiro Agnew was under grand jury investigation for tax evasion.
These two memos addressed whether a sitting president could, under the Constitution, be indicted while in office. They concluded he could not.
But what about a president indicted, convicted, or both, before taking office, as could be the case for Trump?
In evaluating whether a sitting president could be indicted or imprisoned while in office, both the 1973 and 2000 memos outlined the consequences of a pending indictment for the president’s functioning in office. The earlier memo used strong words: “[t]he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”
Even more pointedly, the memos observe that a criminal prosecution against a sitting president could result in “physical interference with the President’s performance of his official duties that it would amount to an incapacitation.”
The memo here refers to the inconvenience of a criminal trial that would significantly detract from the president’s time commitment to his burdensome duties.
But it’s also lawyer’s language to describe a more direct impediment to the president’s ability to govern: He might be in jail.
AP Photo/John Bazemore
Core functions affected
According to the 1973 memo, “the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.”
Because these core functions require meetings, communications or consultations with the military, foreign leaders and government officials in the U.S. and abroad in ways that cannot be performed while imprisoned, constitutional law scholar Alexander Bickel remarked in 1973 that “obviously the presidency cannot be conducted from jail.”
Modern presidents are peripatetic: They travel nationally and globally on a constant basis to meet with other national leaders and global organizations. They obviously wouldn’t be able to do these things while in prison. Nor could they inspect the aftermath of natural disasters from coast to coast, celebrate national successes and events or address citizens and groups on issues of the day, at least in person.
Moreover, presidents need access to classified information and briefings. But imprisonment would also obviously compromise a president’s ability to access such information, which must often be stored and viewed in a secure room that has been protected against all manner of spying, including blocking radio waves – not something that’s likely available in a prison.
As a result of the president’s varied duties and obligations, the memos concluded that “[t]he physical confinement of the chief executive following a valid conviction would indisputably preclude the executive branch from performing its constitutionally assigned functions.”
Translation: The president couldn’t do his job.
Running from prison
Yet what to do if citizens actually elect an indicted or incarcerated president?
This is not out of the question. At least one incarcerated presidential candidate, Eugene Debs, garnered almost a million votes out of a total 26.2 million cast in the election of 1920.
One potential response is the 25th Amendment, which enables the president’s Cabinet to declare the president “unable to discharge the powers and duties of his office.”
The two Department of Justice memos note, however, that the framers of the 25th Amendment never considered or mentioned incarceration as a basis for the inability to discharge the powers and duties of the office. They write that replacing the president under the 25th Amendment would “give insufficient weight to the people’s considered choice as to whom they wish to serve as their chief executive.”
All this brings to mind Justice Oliver Wendell Holmes’ admonition about the role of the Supreme Court: “If my fellow citizens want to go to Hell I will help them. It’s my job.”
Holmes’ statement came in a letter reflecting on the Sherman Antitrust Act, which he thought was a foolish law. But Holmes was prepared to accept the popular will expressed through democracy and self-determination.
Perhaps the same reflection is apt here: If the people choose a president hobbled by criminal sanctions, that is a form of self-determination too. And one for which the Constitution has no ready solution.
Stefanie Lindquist is Foundation Professor of Law and Political Science at Arizona State University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
Lizbeth Alberts says
This is just absurd. One of my sons who’s 30 years old pointed out to me this evening, Mom, how long does it take for an indictment to be a complete or come up for charges or whatnot? He told me 18 months. Well that’s just in time for the election how convenient. This is just awful. Why didn’t Clinton go to prison I mean he really played his role out in the White House in the Oval Office while he was President no less. He didn’t go to jail my gosh he really did the song and dance with the cigar and the blue dress and oh it was just publicized it was wonderful they made a hero out of him. This man is no longer president can’t you just leave him the hell alone? And it was before he became president. Does she Sue everybody that she had slept with? How many important people did she sleep with? She’s doing this she’s got a vendetta out for him and because he was president. Maybe she’s upset and jealous because she wants him. Let It Go already this is asinine dropped the charges let the man do what he wants to do let him continue to be the business man he is. He helped our country everything was wonderful. This clown comes in closes down the pipeline Foods up gas is up in comes down people lost their houses they still are people can’t afford anything anymore. We’re headed for another civil war. We got nukes being tested and just like it’s we got nukes being tested and just like it’s a game. Nobody likes him the other countries laugh we’re laughing stock. He wasn’t invited over to their countries to break bread. He wasn’t given personal gifts from them. It’s just disgraceful what he has done to our country is an abomination. Someone needs to do something immediately about this. Drop all the charges from Trump this is just a laughing stock, get that clown out of office ASAP cuz we’re in a lot of trouble here the United States of America our country is the worst it’s ever been since the Civil war. Zee
JOE D says
Clinton was impeached, but did not use donor campaign money to pay off Monica L or others in the process to keep Silent.
The whole premise of these CHARGES was not that Trump had a prior affair with a mistress. The charges are based on the allegations that he had his ATTORNEY pay Stormy Daniels directly out of the ATTORNEY’S funds, then arranged for DONOR CAMPAIGN Funds to be illegally given to the attorney to reimburse the money for the pay off. They are allegedly that the maneuver was KNOWINGLY done with Trump’s permission, hoping the illegal payoff using campaign funds ( not Trump’s PERSONAL funds) would not be traced back to him. Then the Campaign money use was written off (I can’t remember this second) as either an ATTORNEY fee or a CONSULTING fee.
No, it’s not ILLEGAL for TRUMP to have an affair ( if it was, there would be a whole lot of other politicians indicted), and give the mistress “hush” money. What is ILLEGAL is using donor campaign funds to do it…and trying to cover up where the money came from!
People are just listening to FOX new “propaganda” versions of the news, and not paying attention to the actual FACTS of the case.
PS : as far as comparison of foreign opinions of Trump vs Biden—Many European dignitaries REFUSED to meet with TRUMP due to his behavior as president. Even the POPE only reluctantly allowed TRUMP a PAPAL visit. Go back and look at the MULTIPLE photos of TRUMP with the POPE and see the Pope (who USUALLY has open an joyous SMILES during meetings) has almost a disgusted expression on his face!
Talk about BIDEN being a Laughing stock…that’s a REAL joke. Other than TRUMP almost EMBRACING Putin, and sanctioning China…Trump HAD no foreign policy!
Sherry says
Thanks Joe D for pointing out trump’s “criminal” acts of FRAUD.by his “illegal payments” to silence multiple women who were his sexual partners during his marriage. His immoral sexual acts of adultery were not the reason for his indictment.
When people only watch FOX entertainment they generally do not get credible factual information.
Laurel says
Liz: Whew, wow! Okay, let me make it simple for you. Clinton did one lie, and was impeached for it. Trump is a serial liar, and you know it. Now, let me ask you, did Trump break the law? Yes or no? If he broke the law, he should be prosecuted. Period.
Trump commuted his buddy Stone’s seven felonies, which he was found guilty by a jury of his peers. Seven felonies. This is the justice you want for your country?
JOE D says
Feel a bit like we’ve entered the TWILIGHT ZONE….where NOTHING is what it APPEARS!
I thought the Nixon investigation was the low point for our country’s political system….but this is so much worse…it now appears it’s STANDARD for many ( not all) elected officials everywhere to feel they are ABOVE the LAW, as long as they think they can get around it without getting caught!!
Jimbo99 says
The timing of this is just so Swamp predictable for the Democrat machine, Anyone that can get 74+ million votes is a threat to a Biden 2nd term. They’re doing everything they can to limit the choices & competition for the WH in 2024. 2020 was a coup of a sitting POTUS.
https://www.reuters.com/graphics/USA-BIDEN/POLL/nmopagnqapa/
Sherry says
@ jimbo99. . . OK here’s another poll showing trump’s support is slipping:https://www.npr.org/2023/02/22/1158538798/poll-bidens-standing-improves-while-trump-slumps-with-republican-voters
Just how do any of these polls prove that “2020 was a coup of a sitting POTUS”??? The question of the accuracy of the election when through many, many, judges all the way to the Supreme Court and there was ZERO evidence presented that would have changed the outcome of the election!!!
Jimbo99. . . unless you have personally have unearthed “concrete evidence” that backs up your ridiculous claim of a coup, once again you are spouting complete nonsense!
YankeeExPat says
34….. Slam the Door !
Attica!, Attica!,Attica!………….Al Pacino in
Dog Day Afternoon 1975
David Schaefer says
Lock him up, Lock him up oh Karma feels so good…..
Michael Cocchiola says
No one is above the law.
Maybe this is his Al Capone moment. A relatively minor infraction of the law – when considering a lifetime of criminality – just might bring him down.
I can’t wait to piss on his grave.
Pogo says
@MC
You’d probably have to go overseas to water the weeds in front of his hole in a wall: Russia, China, North Korea…
I sprinkle a blessing on him every morning. I’ll leave it at that — it’s more than he deserves.
David Schaefer says
Karma is a bitch Trumpee…. Why is it taking so long to charge him for Jan 6th and the Georgia issue they have a mountain of information..
DaleL says
Donald Trump was impeached for his role in the January 6th insurrection/riot. The Senate failed to convict him, but a majority voted to convict. Based on that vote, Trump was found by the majority of both the House and Senate to have engaged in a rebellion/insurrection against the USA (Constitution). Under the 14th Amendment, Trump is NOT qualified to hold the office of President. His opponents in any primary or general election should sue to have him removed from the ballot.
14th Amendment, Section 3
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 against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Mitch says
It goes deeper than just indicting Trump and ongoing investigations regarding Trump. The Democrats are hoping to turn voters away from voting for Trump but they also want the Republicans to riot, steal and destroy other people’s property and just plain act in a violent manner. The Democrats have created a lot of mayhem with their support of Antifa, BLM and other anarchist behaviour and they know they will carry that into future elections. Also, the Democrat leaders and their corrupt media have attempted to support the notion that all Republican voters are right-wing nationalists but there have been no substantial acts of violence and behaviour to support that notion.
Joe D says
Wow…it would be incredible if you had ANY FACTS to base your RANT.
Support of Antifa? Anarchist Behavior? Corrupt Media?
Amazing the only Anarchist media seems to be supported by FOX news, with the recent testimony that they KNEW the election lies of the MEGA group were false, but told newscasters to report them anyway. And the head of FOX Media saying to confront the KNOWN lies, would be “BAD for Business” (…directly quoted)!
I’ve NEVER heard Democratic leadership state that ALL Republicans were Right wing Nationalists. I CLEARLY remember the President singling out Ultra Conservative radical MAGA Republicans.
I personally have voted for Republican candidates if I have thought they were the best of the available candidates.
I guess we can be thankful for FREE SPEECH protected in the US Constitution ( except currently in Florida, under the current Governor and State “rubber stamp” Legislature)
Free Speech pretty much allows you to say almost anything, despite not being backed up by any referencing FACTS.
Have a great day!
Laurel says
Joe D: What did Kellyanne Conway call it? Oh yeah, “alternate facts.”
Go Dominion!
Sherry says
@ mitch. . . WOW! Just WOW! “they also want the Republicans to riot” . . . Are you really trying to imply that the Jan 6th violent and lethal insurrection, and attempt to overthrow our government, by the “far right” CULT of trump loyalists was actually created by the Democrats?? Really?? What a horrifically twisted mind FOX has created in you. Please, for the sake of your own mental health, turn off FOX and get “fact based” news from the Associated Press or PBS or the BBC. . . any “credible” media outlet would be better for you.
Jackson1955 says
Trump is a wealthy white man who is able to twist the justice system in his favor, unlike a poor black man, who must simply take what the judicial system gives him. Don’t be fooled, color and class are the two biggest impediments to a fair and honest judicial system.