7

It seems that Donald Trump is already preparing for his 2024 campaign - especially after the Republican CPAC in Iowa.

Is there anything judicial that could prevent him from running in the 2024 race?

4
  • 8
    You'll want to clarify what you mean by this. Are you asking if there are any laws on the books that would bar Mr. Trump from running? Are you asking whether the judiciary can unilaterally decide to block a candidacy? Please clarify what you mean.
    – Joe C
    Jul 28 at 13:10
  • 2
    I mean, is there anything existing (ongoing, maybe), that can be used to block him from becoming a candidate by judical methods. Jul 28 at 13:45
  • 1
    The question is a bit unclear, whether it's only about past events and whether there will be judicial consequences, or do we also count hypothetical future events? (what if he robs a bank next week? What if he renounces his citizenship? What if it turns out his birth certificate was forged and he's not native-born?)
    – vsz
    Jul 30 at 15:32
  • @user2501323 What do you mean by "By judical (sic) methods"? "Judicial", where the federal government is concerned, means--at least for Presidential matters--the Supreme Court of the United States (e.g. the Judicial branch of the federal government). You're asking if SCOTUS can do something to block Trump from running in the 2024 US Presidential election?
    – TylerH
    Jul 30 at 18:38
30

As of writing this, Donald J. Trump has been elected President of the United States once and has served a total of four years. He has not held the office as President or Acting President after another person was elected. Thus, according to the 22nd Amendment which reads (Section 1, inapplicable parts left out):

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

he can be elected one more time.

There are a couple more points that need to be met to be eligible:

  • Article II, Section 1, Clause 5 states that the President must be a natural-born citizen of the United States, 14 years a resident thereof and at least 35 years old. As Trump is still a resident of the US and has been continuously since his term in office, these requirements are met.

  • The 14th Amendment bars any person who rebelled against the Constitution of the United States. This Amendment was written with the Civil War in mind, intending to exclude the Representatives and Senators of the secession states from holding a public office unless both Houses of Congress reinstate a secessionist's eligibility. This does not apply to Trump to the best of my knowledge as nobody has penned a sufficiently authoritative legal opinion that considers him to have rebelled against the Constitution.[1]

  • Finally, under Article I, Section 3, Clause 7, following impeachment and conviction, the Senate may vote to bar the impeached and convicted individual from holding a federal office. This does not apply to Trump: while he was impeached twice the Senate did not vote to convict him with the necessary majority and thus also did not vote to bar him.

I am not aware of any other legal requirements a potential President may have to fulfill to be eligible. As all the requirements above are codified within the Constitution and its Amendments, I would assume that any further eligibility requirements would also have to be laid out in the Constitution itself or in a Constitutional Amendment; there are currently none. This is amplified by the quotations that Reirab has included in their answer which mention that the Constitutional requirements are precise and not merely a minimum. Crucially, nowhere is it mentioned that the President must be 'of good character' or similar, meaning that being convicted of a federal or state crime would not bar an individual from holding office. Indeed, precedent shows that it is constitutional (or at least remained unchallenged) for a person to run for President while imprisoned.[2]

Therefore, Donald J. Trump may take part in the 2024 Presidential Election.


Notes:

[1]: There is and has been ample political debate whether the events of the 6th January constitute a rebellion against the Constitution. However, political debates are meaningless; it would likely be up to the Supreme Court to issue a ruling on the matter and I have not yet heard of any argument carrying sufficient weight for the Supreme Court to consider it.

[2]: In the 1920 Presidential Election, third-party candidate Eugene Debs stood and gained 913,664 votes (but no votes in the Electoral College) while being sentenced to 10 years imprisonment and disenfranchisement under the Espionage Act 1917. Debs was not able to cast a vote for himself.

21
  • 3
    Felons are commonly disenfranchised in the US. Does that only apply to voting rights or to candidacy as well?
    – o.m.
    Jul 28 at 15:24
  • 5
    @o.m. it does not apply to candidacy, but good luck running a campaign from prison.
    – Ryan_L
    Jul 28 at 15:32
  • 9
    @Ryan_L: Eugene Debs did it back in 1920. Though, he was a third-party candidate and only got 3.4% of the popular vote.
    – dan04
    Jul 28 at 17:03
  • 2
    This doesn't look like a judicial answer.
    – RonJohn
    Jul 28 at 21:43
  • 1
    @reirab I'm not telepathic so I cannot comment on the true reason the amendment 14,3 was put in there. But it was, and my statement stands, and the answer is wrong in this respect. Jul 29 at 21:16
21

Perhaps surprisingly there is no bar on felons running for President, several have (though none have won). It seems likely that even an incarcerated person can be elected President. However there is one judicial act that would prevent a Trump presidency.

He could be convicted of a capital crime and executed. The USA and several of the states still have capital punishment and you can't be elected President when you are dead.

17
  • 27
    “you can't be elected President when you are dead.” I know my request will sound ridiculous, but [citation needed] Jul 28 at 16:26
  • 7
    @EkadhSingh: The closet real-life situation was in 1872, when one of the major candidates (Horace Greeley) died during the period between the popular vote and the Electoral College vote. But he had lost anyway.
    – dan04
    Jul 28 at 17:01
  • 16
    @EkadhSingh if you must... "srdlawnotes.com/2017/04/legal-status-of-dead-person.html" the dead are not legal "persons". Constituion article 2 repeatedly speaks of "person" (elector shall vote for for two persons, no person except a natural born citizen...) and so on. So you can't be elected when you are dead.
    – James K
    Jul 28 at 17:09
  • 2
    Of course the Judicary can't just convict Trump, only a jury can do that. And as far as I am aware, Trump has not committed any capital crime. So this is a daft answer, not serious, please don't think it is anything more than A Modest Proposal.
    – James K
    Jul 28 at 20:30
  • 2
    And this would almost certainly become the test case for "Can a President pardon themselves."
    – Barmar
    Jul 28 at 21:46
2

What do you mean by "judicial"?

If you mean "legal/Constitutional", then the answer is no. Jan lists the Constitutional requirements to become president, and Trump meets them all.

One could speculate that Mr Trump may be convicted of some crime. But (a) he has not been convicted of any crime, so that would be purely hypothetical, and in any case (b) Nothing in the Constitution says that being convicted of a crime disqualifies a person from running for president.

And just to inject my personal opinion, I think a law saying that convicted criminals cannot be president would be problematic for at least two reasons: (a) It would be adding additional qualifications beyond what is in the Constitution. Would that be legal? It would establish a very dangerous precedent. It would mean that the party in power could pass laws deliberately crafted to keep someone they don't like from running for president. Like what if Congress passed a law saying that no one whose last name begins with "T" can be president? Even if you say, oh come on, that would be too obvious, they'd never get away with that politically ... okay, what if they did something more subtle, that one could at least make some pretense of justifying? Would it have to fool people, that the purpose of the law was NOT to target this one specific person? (b) If a criminal conviction could disqualify someone from becoming president, then political opponents would just have to find some jurisdiction somewhere where they could get a judge and jury to convict someone of a trumped up charge (no pun intended). This would allow 12 people anywhere in the country to overrule the majority of the voters.

Perhaps you think that Mr Trump incited the January 6 protest and that this was an act of treason. But "I and my friends think he was guilty" is not at all the same as being convicted. Pretty much every candidate for president in my lifetime has been called a traitor by opponents. You'd have to establish in court that Mr Trump actively encouraged the protestors to break the law despite his statements calling on them to remain "peaceful and patriotic" -- you have to assert that when he said "peaceful" this was a code word that he and they all understood to mean exactly the opposite. And you'd have to establish that this was an act of insurrection and not just a protest. Did 400 unarmed people think they were going to overthrow the government? How, exactly?

If you're thinking "judicial" in some other sense, like could the courts rule that Trump is ineligible ... on what grounds? They'd have to just make something up. Our courts have made some pretty wild rulings but for a judge to just declare, "I don't think this person would be a good president so therefore I'm going to rule that he's not allowed to run, regardless of what the voters think" ... Either that judge would quickly be knocked down by a higher court, or if the Supreme Court actually upheld it, I think we could fairly say that the country would no longer be a democracy in any sense.

5
  • 5
    With all respect, I've not mentioned anything of "I and my friends think he was guilty" in my question. US political standoff is interesting for me, but that doesn't mean, that I'm on one of sides. Jul 29 at 2:57
  • 2
    Sorry, it was not my intent to say that you did. I said, "Perhaps you think ..." Note key word "perhaps". The wording of your question implies that you think there might be some legal or judicial issue, so I brought that up as a hypothetical. My point was to say that SOMEONE might say "I and my friends ...", not that you personally are one of those "someones".
    – Jay
    Jul 29 at 15:19
  • It's ok, never mind.) I've asked that question, because it's rather unusual for me to see how sides in that US standoff using more and more power (administrative, judical, and any other) for making their opponent's life harder. Jul 29 at 16:18
  • "Nothing in the Constitution says that being convicted of a crime disqualifies a person from running for president": but some crimes have, as one of the punishments available to the judge, such a disqualification. See my answer for an example.
    – phoog
    Jul 29 at 23:58
  • It might not be a question of the OP and his friends deciding, but of Congress deciding he was guilty, which would not be totally implausible in view of the fact that he's already been impeached twice.
    – Stuart F
    Aug 5 at 9:36
2

No. The Supreme Court has ruled in (at least) Powell v. McCormack that the set of qualifications imposed by the Constitution are exclusive for offices that have their qualifications set out explicitly in the Constitution, which is true of both the President and Congress.

In that case, the Supreme Court ruled that, when determining the qualifications for a member of Congress,

Congress is limited to the standing qualifications expressly prescribed by the Constitution.

The Congressional Research Service produced a report to Congress (PDF) on this subject. According to that report,

It is now well-settled that these three qualifications for office in the Constitution are the exclusive qualifications for Congress (and are not merely “minimum” qualifications), and that they are fixed and may not be supplemented by Congress nor by any State unilaterally. Specifically, there is no qualification in the Constitution that one not be a convicted felon (nor a “disqualification” for offenses other than in the 14th Amendment for certain treasonous conduct by those who have taken an oath of office). Similarly, there is no qualification in the Constitution that a person, when elected to Congress, not be in prison. Furthermore, no State could permissibly implement such additional qualifications for federal office through election laws or ballot procedures. The Framers of the Constitution intentionally implemented a representative scheme whereby significant discretion is given and deference provided to the judgment and choice of the people as to whom they wish to have represent them in Congress.

The exact same reasoning should apply to the Presidency, as both have their qualifications laid out explicitly in the Constitution. No statute could legally place any further limits on these qualifications. The only way to add to them is to amend the Constitution. This has, of course, been done in the 14th Amendment (banning rebels from serving) and the 22nd Amendment (term limits for the President.)

While, as another answer mentions, there are plenty of U.S. federal statutes that allow or require a sentence upon conviction of a particular crime to include being banned from serving in various roles within the U.S. government, these limitations do not and can not extend to preventing anyone from being elected to Congress or the Presidency, nor from serving if elected. The only constitutional way to prevent someone from serving in those roles is for Congress to expel them (in the case of a member of Congress) or impeach them (in the case of a President.)

-2

Yes. He could be convicted of bribery or a similar crime and barred as part of his sentence from holding public office.

18 USC 201(b) (emphasis added):

(b) Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—
(A) to influence any official act; or
(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person;
(3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom;
(4) directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom;

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

If Trump were convicted of bribery, therefore, the judge could decide to impose the punishment of disqualification. On the other hand, conviction for some other crimes carries this penalty automatically. These include treason, certain recordkeeping offenses, and, perhaps not surprisingly, various crimes of rebellion. Title 18 USC 2383, emphasis added:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

I haven't been able to find a comprehensive list of all crimes for which the punishment of disqualification is available.

15
  • 3
    As JJJ alludes to, this answer is incorrect. Courts don't have the legal authority to ban someone from holding the office of President. Congress does (via impeachment,) but courts don't. Allowing courts to disqualify someone from running for office would be problematic for lots of reasons. In particular, it would be relatively easy to abuse such a power to disqualify political opponents. There's a reason why a 2/3 majority of the Senate is required.
    – reirab
    Jul 29 at 19:28
  • 2
    @reirab that is a very appealing constitutional argument, but it is unfortunately entirely incorrect, because congress has granted the power to disqualify those convicted of certain crimes from holding federal office. I have added the text of the linked statute to the answer so you can see for yourself. I don't understand your concern about abuse for political opponents; there has to be a conviction. So standing between any politician who wants to do this and his goal are are a federal prosecutor, a grand jury, a petit jury, and a federal judge with a life appointment.
    – phoog
    Jul 29 at 23:52
  • 1
    Federal Statutes Imposing Collateral Consequences Upon Conviction, Right to hold federal office or employment, "Various federal statutes, however, provide that a conviction may result in the loss of or ineligibility for office."
    – Rick Smith
    Jul 30 at 0:56
  • 1
    @phoog Upon a bit further research of this question, it seems that courts have already examined this question and have indeed ruled that such a limitation is unconstitutional. Just a few years after the law which included 18 USC 201 was passed, the Supreme Court ruled in Powell v. McCormack that, "In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution." While that case was in regards to Congress, surely the same would apply to the Presidency.
    – reirab
    Jul 30 at 5:21
  • 1
    @reirab "any other qualifications cannot constitutionally be imposed": I understand the argument, but the opinion holds that congress cannot impose of its own volition additional criteria for seating a member. I disagree that this necessarily excludes judicial dis-qualification of one duly convicted of a crime that has this penalty explicitly imposed by statute. Any such case can easily be distinguished from Powell, and until a court rules specifically on this question, it's unsettled law.
    – phoog
    Jul 31 at 15:36

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .