18

This is a question about the period between November 5 and January 20 in an election year.

If a presidential candidate wins the election but is sent to prison on November 6, say, would they stay in prison until they become president on January 20? Or is there some constitutional right to be released before January 20?

Edit I am really interested in the case where the elected candidate is not the sitting president. So the question of self pardon does not arise during this period, nor does the problem of serving while in prison.

13
  • 2
    Nothing we can do but speculate it has never been a possibility in the past and even now even if Trump is convicted of one of the criminal charges he is facing that he will get prison time.
    – Joe W
    Apr 14 at 21:41
  • 3
    The assumption that a sitting President would be released on January 20 is not at all a foregone conclusion.
    – ohwilleke
    Apr 15 at 2:19
  • 2
    @ohwilleke I didn't say it's a duplicate. Just saying that this question is not unique in its speculative nature
    – whoisit
    Apr 15 at 2:24
  • 6
    For what it's worth, while this has thankfully not yet been the case for a President-Elect, it actually has been the case for Presidential candidates in the past, as well as candidates for lower political offices. The most famous example is probably Eugene Debs, who ran for President of the U.S. from prison on the Socialist Party ticket in 1920. In the state where I live, there was a guy who continued his run for state Senate from jail, after having been arrested for murdering his opponent, who was the incumbent for that office. (He lost.)
    – reirab
    Apr 15 at 20:01
  • 2
    @JoeW Yeah, the sedition charges were definitely bogus and blatantly political (and the law used to level those charges has since been overturned as unconstitutional.) I was just pointing out that people have actually run for office from prison, not suggesting that particular one had any reasonable chance of winning or that the charges against him were fair.
    – reirab
    Apr 15 at 20:18

3 Answers 3

28

This is a question that has never come up so we don't know for sure. If we are lucky, we may never have to find out, because election results and criminal trial results will reach some permutation that prevents this question from arising.

But, until someone elected to be President takes office (if he is not the incumbent), the answer is easy. He stays in prison. If you are in prison for a crime, neither federal law nor state law provides that you are entitled to be released because you have been elected President.

After January 20, it would present something of a constitutional crisis not contemplated when the U.S. Constitution was drafted, because they couldn't imagine their electors choosing someone convicted of a felony, and imminently about to be incarcerated for it, being elected in the first place.

No one in the federal government has the power to pardon someone or commute the sentence of someone sentenced to prison for a state crime.

While it has never been tested historically and there is scholarly disagreement on the point, the majority view among legal scholars and professionals is that the President does not have the power to pardon or commute his own federal criminal conviction or sentence. See also here and here and here for other discussions on Politics.SE and Law.SE of that question.

The most obvious possibilities, after January 20, would be that the President would carry out his duties from prison, or would be impeached, or would be deemed disabled under the 25th Amendment allowing his Vice President to take over for the duration of his incarceration.

7
  • 6
    There is nothing in the page you linked to that shows that "the majority view among legal scholars and professionals is that the President does not have the power to pardon or commute his own federal criminal conviction or sentence."
    – user76284
    Apr 15 at 12:00
  • 1
    @user76284 It is the position taken by the Department of Justice, it is the position backed by historical practice, and while legal scholars don't speak with on voice (and many have said nothing) it is the more common view of those who have really analyzed it.
    – ohwilleke
    Apr 15 at 15:27
  • 5
    @Joshua Do you have any references for your claim? The president only has authority over the executive branch of the federal government, so he could not issue orders to a state governor. Apr 15 at 20:55
  • 1
    @Joshua There is no authority for that proposition.
    – ohwilleke
    Apr 15 at 21:26
  • 3
    @Joshua: It is conceivable (but wildly unprecedented and very questionable) that the President could issue an executive order to the Bureau of Prisons, commuting, suspending, or otherwise interfering with his own federal custodial sentence. But the actual scenario we are talking about, in practice, would be Trump getting convicted in New York, and given a state custodial sentence. There is no legal mechanism empowering the President to order New York's prison system around.
    – Kevin
    Apr 15 at 22:28
8

There's several moving parts to explore.

Swearing in

The President can take the oath of office anywhere. Lyndon Johnson was sworn in on Air Force One at Love Field in Dallas after JFK was pronounced dead.

Johnson taking the oath

Sentencing

It's unlikely a court would send a President-elect to jail. It's not unreasonable to assume a court would suspend the sentence to allow the sitting President to run the country. Eventually the convicted President would no longer be in office and could serve their sentence after their term ended.

More likely the President-elect will have been sentenced before the election if they are to be in jail during the election and/or sitting in jail come Jan 20.

Congress

The incoming President will also likely have a Congress that has a majority of their party in charge. Expect this Congress to pass resolutions calling for the freedom of the new President. Expect also There will be tremendous political pressure on whatever court has jurisdiction over the new President.

The Courts

As ohwilleke noted, it's unclear if a sitting President can issue a pardon on their own behalf. I am going to assume the answer is in the negative. Regardless, that question would have to be sorted out by courts later.

Most likely, there will be legal motions already filed with the relevant state and/or Federal courts, and these motions will focus narrowly on having the President released from prison solely for the sake of running the country. It's going to be a lot easier to get a President released from jail than it will be in trying to overturn the conviction.

As we've seen on other issues, issues related to the Presidency tend to get expedient hearings and/or action. Expect petitions for emergency hearings to be granted, especially if lower level courts deny the motions to release the new President.

The determined state

The worst case scenario here is you have a state-level conviction and that state has elected officials who are determined to keep the new President behind bars. As others have mentioned, the President cannot pardon state convictions, so if prosecutors and courts are aligned against the new President it would mean that the legal process would have to wind through state courts. They could keep a sitting President locked up (in theory) for the entire time by keeping the case tied up in state courts. Federal courts would be less likely to get involved as long as there were no clear legal problems, just lots of legal maneuvering.

It's not impossible that a state that determined to enforce their sentence keeps the President locked up for the entirety of their term.

Presidential Prison

The prison would have to make some accommodations for the President. After all, it would look bad for any prison to have a President injured or killed under their roof. It's not unreasonable to assume they would either house arrest the President, or put them in a minimum security facility. That would afford some room for the Secret Service to assign a detail to protect them.

17
  • Not sure that I'd agree that federal courts are less likely to get involved. Given the nature of the circumstance, I would not be surprised to see a federal appellate court order immediate release pending the appeals actually working their way through federal appellate courts, likely up to (and possibly directly to) the Supreme Court to decide the question of if a state can even imprison the President in the first place. I don't think SCOTUS would wait for a circuit split to take such a case. Also worth remembering the Supremacy Clause. Anything that contradicted a federal law would be out.
    – reirab
    Apr 15 at 21:05
  • 2
    And that's before considering that Congress could just pass a law that says, "No state may detain or imprison the President or Acting President of the United States" and that would end it.
    – reirab
    Apr 15 at 21:08
  • 1
    @reirab: One possibility, though it would certainly be an unholy mess if it happened, would be for the courts to say "The 25th Amendment explicitly delegates the power to determine Presidential Inability to the political branches, so we can't rule on it. If the President says he is unable to govern from prison, we can't decide that question, and he must instead avail himself of the remedy in section 3 of the 25th Amendment." Obviously, Trump will not do that, so it's a bit of a catch-22.
    – Kevin
    Apr 15 at 22:33
  • @reirab There's too many variables there. If Trump is convicted in DC, the chances the court rushes it and rules in Trump's favor are low. DC Circuit won't be friendly territory either. Miami might be faster. But Fed courts don't have any jurisdiction over state courts initially. You need the trial, conviction and then appeals first.
    – Machavity
    Apr 16 at 2:17
  • @Machavity I agree that there are a lot of variables, but it's just the "federal courts would be less likely to get involved" part that I don't think is at all clear. As far as jurisdiction, if the question is whether the federal Constitution and/or federal law allow the President to be held in jail, I doubt that a conviction would first be necessary (as then the question would be moot anyway.) If the question is whether the President can be held in prison after conviction, then it's already after conviction by definition. As far as courts slow-walking a case, SCOTUS could handle that.
    – reirab
    Apr 16 at 3:42
-2

There's nothing in the US Constitution that prevents a prisoner from serving as a President. There's no requirement for a President to be in any specific location to be performing their duties.

Likelihood of that ever happening is pretty low though. If convicted of Federal crimes, the President will then obviously pardon and release themselves. If convicted of a State crime - it may be a bit more complicated, but the likelihood of any serious jail time for Trump in the New York case is probably not very high.

11
  • 8
    @ohwilleke can't pardon himself - source please? I don't think that has ever been established, and with the current very friendly scotus seems unlikely to me
    – littleadv
    Apr 15 at 2:00
  • 2
    I've provided some links in my answer. Honestly, I don't believe that even the current U.S. Supreme Court would uphold an attempt by Trump to pardon himself of a federal crime (and certainly wouldn't allow him to pardon himself from a state crime).
    – ohwilleke
    Apr 15 at 2:11
  • 4
    @ohwilleke you don't? Based on what? The links that you provided don't say what you claim they say. You said the president can't pardon himself, none of your links says that.
    – littleadv
    Apr 15 at 6:07
  • 1
    @Simd SCOTUS couldn't release him for any cognizable reason at that point, unless the underlying conviction was invalid for some reason arising under federal law not particular to the Presidency (e.g. if evidence was obtained in an illegal search and that impact was not harmless error).
    – ohwilleke
    Apr 15 at 7:36
  • 4
    @ohwilleke Your links show no such thing.
    – user76284
    Apr 15 at 12:10

You must log in to answer this question.

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