A grand jury from Manhattan has voted charges against former President Donald Trump. The specific state charges, The New York Times reports, “remain a mystery” but will be related to the Manhattan district attorney’s investigation of Trump for paying hush money to a porn star just before the 2016 presidential election.
It is the first time that a US president or former president has been charged.
At the same time, Trump is expected to continue his campaign for the presidencyin a bid to regain the position in 2024 he lost to Joe Biden in 2020.
How will an indictment and possible trial affect his campaign and, if successful, his future presidency?
Article II of the United States Constitution contains very explicit qualifications for the presidency: the president must be 35 years old, have been a U.S. resident for 14 years, and be a natural-born citizen.
In cases with analogous qualifications for members of Congress, the Supreme Court has ruled that such qualifications constitute a “constitutional ceiling” – which prohibits additional qualifications from being imposed in any way.
Thus, since the constitution does not require the president to be free from charge, conviction or imprisonment, it follows that a person who is indicted or in prison can run for office and even serve as president.
This is the prevailing legal standard that would apply to former President Trump. The fact of his indictment and possible trial is irrelevant to his qualifications for office under the Constitution.
Nevertheless, there seems to be no doubt that an indictment, conviction, or both — much less a prison sentence — would significantly jeopardize a president’s ability to function in office. And the Constitution offers no simple answer to the problem of such a compromised president.
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Rule from prison?
A presidential candidate can be charged, prosecuted and convicted by state or federal authorities. State crime charges may seem less important than federal charges filed by the Justice Department.
But ultimately, the spectacle of a criminal trial in state or federal court would have a dramatic effect on a presidential campaign and on a president’s credibility, if elected.
All defendants are presumed innocent until proven guilty. But in the event of a conviction, incarceration in state or federal prison entails restrictions on liberty that would significantly jeopardize the president’s ability to lead.
This point — that serving as president would be difficult under impeachment or after conviction — was made clear in a Note from 2000 written by the Ministry of Justice. The memo reflected on a 1973 Office of Legal Counsel memo drafted at Watergate titled “Availability of the President, Vice President, and Other Civilian Officials for Federal Criminal Prosecution While in Office.” That was the background of the 1973 memo President Richard Nixon was under investigation for his role in the Watergate burglary and Vice President Spiro Agnew was being investigated by a grand jury for tax evasion.
These two memos addressed the question of whether, under the Constitution, a sitting president could be indicted while in office. They concluded that he couldn’t. But what about a president who was indicted, convicted, or both before taking office, as might be the case for Trump?
In assessing whether a sitting president could be charged or imprisoned while in office, both the 1973 and 2000 memos outlined the effects of a pending indictment on the functioning of the president in office. Strong words were used in the earlier memo: “[t]The spectacle of an incumbent president still trying to serve as Chief Executive captures the imagination.”
In fact, the memos note that criminal prosecution of a sitting president could result in “physical interference with the president’s performance of his official duties, which would amount to disability.”
The memo here refers to the inconvenience of a criminal trial that would significantly detract from the president’s time commitment to his arduous duties.
But it is also the language of jurists to describe a more direct impediment to the president’s ability to govern: he could be in prison.
AP Photo/John Bazemore
Core functions affected
According to the 1973 memo, “The president plays an unparalleled role in the administration 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 in prison, a state law scholar argues Alexander Bickel noted in 1973 that “obviously the presidency cannot be run from prison.”
Modern presidents are itinerant: they constantly travel nationally and globally to meet with other national leaders and global organizations. They couldn’t do these things in prison, of course. They couldn’t either inspect the aftermath of natural disasters from coast to coast, celebrate national successes and events or addressing citizens and groups about current eventsat least personally.
In addition, presidents need access to classified information and briefings. But, of course, incarceration would also compromise a president’s ability to access such information, which often has to be the case. stored and viewed in a secure area that’s protected against all types of espionage, including blocking radio waves – not something likely to be available in a prison.
As a result of the president’s varied duties and obligations, the memos concluded that “[t]The physical confinement of the chief executive following a valid conviction would indisputably prevent the executive from carrying out its constitutionally assigned duties.”
Translation: The president couldn’t do his job.
Run away from prison
But what if citizens actually elect an indicted or imprisoned president?
This is not excluded. At least one incarcerated presidential candidate, Eugene Debs, received nearly a million votes out of a total of 26.2 million cast in the 1920 election.
One possible response is the 25th Amendment, which allows the President’s Office to declare that the President is “unable to exercise the powers and duties of his office.”
However, the two Justice Department memos note that the drafters of the 25th Amendment never considered or mentioned incarceration as a basis for the inability to carry out the office’s powers and duties. They write that replacing the president under the 25th Amendment would “give insufficient weight to the people’s informed choice as to who to serve as their chief executive.”
All this is reminiscent of the ruling of Judge Oliver Wendell Holmes. warning about the role of the Supreme Court: “If my fellow citizens want to go to hell, I will help them. Its my job.”
Holmes’ statement came in a letter reflecting on the Sherman Antitrust Act, which he thought was a silly law. But Holmes was willing to accept the will of the people expressed through democracy and self-determination.
Perhaps the same consideration is appropriate here: if the people elect a president who is hampered by criminal sanctions, that too is a form of self-determination. And one for which the Constitution has no ready-made solution.
