Could Trump run for president if he's indicted and out on bond?

Politics & Elections
21

Maybe. But I don’t think there is any legal requirement for a governor to commute the sentence of somebody serving in prison in their state because that person has been elected to a federal office.

I’ve made the argument before that a President being incarcerated would be grounds for invoking the 25th Amendment. As you note, a President can’t do his job from inside a prison. So he would be “unable to discharge the powers and duties of his office” and the VP would have to assume the job as acting president until he was released.

22

First, I don’t think we can take away any traditions from the Founding Fathers. The penitentiary system came about after that, and the default penalty for any felony was death, so you wouldn’t really have any convicted felons running for federal office. Second, I think it was implicit in the thoughts of the drafters that only the finest men in the community would be elected to federal office.

That aside, members of Congress are privileged from arrest during the session except for “treason, felony, or breach of the peace.” I don’t have my federalist papers handy, but it seems that the first two being punishable by death and the third constituting an imminent harm were the reasons for those limited exceptions.

But under the hypothetical, the electoral college has voted for a person to become POTUS, knowing full well that the individual is under a sentence of incarceration under a state sentence. There would be the constitutional quandary.

You would agree, I believe, that nothing would prevent that person from becoming POTUS. I guess one could argue under the 25th Amendment that he is “unable” to discharge his duties because of his state incarceration, but a counterargument could be made that he is ready, able and willing but for the state interference in the federal constitutional process that made him president.

And, the founders were largely correct in that the people are not going to vote for someone, either as POTUS or a congressman, if they are in prison for crimes. They are manifestly unfit for office. But if under the hypo, people DO in fact vote for that person, then it seems to me that a higher order of democracy has spoken and one state should not be able to frustrate that.

Imagine a wholly corrupt deep red state (think Huey Long’s Louisiana type corruption) that trumped up charges against Biden, Harris, Schumer, et al. and convicted them and sentenced them to prison. If the people of New York say, “Nope, we still want Schumer as our Senator” and the people of the nation say “We still want Biden as President” should one single state get a veto over a federal constitutional function?

However, like all of the what-if hypothetical constitutional crises, it has never been tested because of the extreme unlikelihood of it happening. If it does, then the constitutional has failed on its own assumptions.

23

I’m extremely skeptical of this claim.

24

I was typing my reply as you typed yours, but doesn’t this give one single state a veto power over the people’s/electoral college’s free choice over a legal presidential candidate? That one state is adding a qualification to the presidency (cannot be incarcerated) that is not mentioned in the Constitution, a power which the Term Limits case forbids.

Thinking out loud, I suppose that if the people elected someone as president who was in a persistent vegetative state and the 25th was invoked, you could claim that my argument would still hold, so therefore must be wrong. However, that is getting even more absurd, and as I said, the Constitution has failed at that point and it is time to start over.

25

It was extremely common for many crimes in the 18th century following English Common Law of the time, but definitely varied by locale. New Jersey had the most restrictive death penalty - originally none at the colony founding, then murder and treason only in the 18th century. In practice only murderers were executed in 18th century New Jersey.

26

The 25th Amendment is, obviously, part of the Constitution. So the Constitution does contain a means within it for removing a president from office if he can’t do the job.

A state isn’t declaring somebody can’t be president because they are in prison. Their inability to do the job, as defined by the Constitution, is declaring they are unable to be president.

27

But if the state releases him, he is able to do the job. The only reason he can’t do the job is because one state is interfering with a federal constitutional function.

I think that taxing federal banknotes impedes the functioning of the federal government in a vastly smaller way than preventing the President from doing his job, yet the tax on banknotes is unconstitutional.

28

Show me anything in the Constitution that says that you can have a crime disappeared by being elected president.

We’re not talking about charging a sitting president with a crime; the Supreme Court has placed limits on that because of how it interferes with the functions of the office.

But to say a crime that was already committed and for which a person has been sentenced? There is no law that says getting elected clears your criminal record.

To me this is like arguing that if the people voted a thirty year old into office, we would be required to accept their judgment and then revise his birth certificate to make him thirty-five years old. This is ridiculous.

In order to be president, you have to be eligible to be president. If the voters were stupid enough to elect somebody who isn’t eligible to be president, we don’t rewrite the rules. We acknowledge this person is ineligible and put the next person in line in office. We follow the laws.

29

Where in the Constitution does it say that an incarcerated person is ineligible to be president?

The thirty year old is expressly forbidden in the Constitution to be president. It doesn’t matter if the people/EC vote for that person anymore than if they voted for a non natural born citizen. That person is strictly ineligible.

Also, I didn’t say anything about clearing a criminal record. Show me in the Constitution where it says states cannot tax banknotes. It is implied from the structure of the Constitution that the federal government is supreme and that the legitimate powers of the state must recede when confronted with a contrary federal structural issue.

30

The problem with using the 25th Amendment to remove a newly-installed, incarcerated President Trump is that it requires the Vice President and half the Cabinet to invoke. Since this will be the newly-elected Vice President who was presumably hand-picked by Trump, he is unlikely to go along with the maneuver.

31

The Constitution says that a President who is unable to perform the duties of the office will be replaced by the Vice President. You yourself acknowledged in this thread that a person who is in prison would be unable to perform those duties.

The Constitution tells us what to do with a President who is unable to perform his duties; replace him with the Vice President. The Constitution does not tell us to release him from prison in order to make him able to perform those duties.

32

The Constitution also says that Congress can form a different body is it feel the cabinet is not doing what it should.

I will grant you that if the President, the Vice President, the cabinet, the House, and the Senate (and probably the Supreme Court) all decide to collude to allow a President to hold office while in prison, they’ll probably get away with it. Although with that many people involved, you’d figure it would be easier for them to stage a riot and break him out of prison.

But that President won’t be Trump; he’s an idiot. He wasn’t able to hold on to power when he could have done so legally. And he bungled it terribly when he tried to hold on to power illegally.

33

Right. The Constitution is silent on that. However when the only reason a president is unable to perform his constitutional duties is because a single state is preventing him from doing so, even if consistent with state law, one then has to examine whether a single state can constitutionally frustrate a federal purpose.

Even with a completely legal thing like taxation a state cannot do that, even though the feds could still operate, just at a higher cost. Under this theory, a state could veto the election of a president.

34

It wasn’t quite the automatic default penalty for felonies, but pretty close, as Blackstone explains:

Blackstone’s Commentaries on the Laws of England, Book the Fourth - Chapter the Seventh : Of Felonies, Injurious to the King’s Perogative

That was in England, of course. There could be variations in the colonies, but the general starting point was the English common law.

See also:

35

You still need the Veep to go along with it, though. The exact wording of the 25th is,
"Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore . . . " The Vice President’s participation is mandatory. And you can be certain that – after what went down with Pence – Trump will ensure that his VP is the most compliant lickspittle you could imagine.

36

Sure, there’s lickspittles - and then there’s personal ambition.

Hypothetical - Trump gets a 10 year sentence, no chance of parole.

Pence Mark II: “hmm. I can be Prez in all but name … the good folks of NY State Corrections will keep Trump on ice for ten years…he doesn’t have access even to his blog or to call-in to Fox to rouse his supporters … hmmm … decisions, decisions”

37

A vice-president can’t perform the constitutional duty of presiding over the Senate. But I’ can’t see what important constitutional duty the President can’t do from prison, at least if not being punished for uncooperative behavior.

Maybe someone would make something of the constitutional phrase “receive ambassadors.” If the state allowed DJT too few visitors, I guess something could be made of that. But if Trump was allowed to receives each new foreign ambassador, once, as does Queen Elizabeth II, I think our (I being American) only clearly in-person constitutional requirement would be met.

Certainly, being in prison would slow down the President in performance of duties. Prison television rules vary, but it might well be that he would have to get his news from newspapers. This seems to me an improvement.

Cheating at golf, and holding rallies where you say our free press is the enemy of the people, are not constitutional duties.

And as for the practicalities, it means a different style of presidenting. Maybe better. I wouldn’t like it if they tried this on a Democratic president who I thought innocent, or only guilty of a triviality. But I’d rather Biden signing bills in jail then Trump signing them from anywhere,

P.S. As for whether this scenario is possible, I think successfully campaigning from prison is nearly impossible. But I can’t rule out conviction in, say, mid-November 2024, with sentencing by early January 2015. Very unlikely, but totally possible.

38

OK, that’s impossible. I meant 2025.

39

That would be a farce, though. Do the guards toss his cell because he might be hiding a shank, but you then let the Secret Service come in with the nuclear football? Do you station Secret Service agents to walk with him in the rec yard or the mess hall to keep other prisoners from hurting him?

40

You keep saying the state is vetoing an election. That’s not what’s happening.

The state charged somebody with a crime, held a trial, and sentenced that person. Are you saying that the federal government can now intervene and tell the state that it must release this person? That’s making a mockery of state sovereignty, due process, the court system, and the rule of law.

If somebody commits a crime and is imprisoned as a result, they have made themselves unable to serve as president (among other disabilities). The state is under no constitutional requirement to reverse this process so somebody can be president.