Can a President Serve From Prison? We Might Find Out

Posted in: Constitutional Law

Astoundingly and despite—indeed perhaps in part because of—his recent indictment on charges of felony falsification of business records, Donald Trump is the clear frontrunner for the Republican nomination for President in 2024. Much could change between now and the primaries next year, but the indictment, the potential for indictments on three other sets of charges, and Trump’s grip on his party’s base all point to the possibility that he could be elected President while in prison.

What happens then? As I explain below, the best reading of the Constitution would render him ineligible to serve as President while in prison but in any plausible scenario in which Trump returns to the Oval Office in 2025, the only actors authorized to declare him ineligible would be extremely unlikely to do so. Thus, we face the genuine possibility that Trump would serve some or all of a presidential term while in prison.

The Current and Likely Charges

All 34 counts of the New York County indictment against Trump arise out of his intentional mischaracterization of hush-money payments to Stormy Daniels, Karen McDougal, and doorman Dino Sajudin. Each count asserts a violation of a New York statute that defines a class E felony. Another provision of New York law sets the maximum term of imprisonment for such crimes at four years. With Trump’s trial scheduled to start sometime next year, a conviction on at least two counts followed by consecutive sentences would result in his imprisonment well beyond the end of the next presidential term in 2029.

However, that’s extraordinarily unlikely. Given that each of the counts in the indictment arises out of a common scheme, the judge would likely impose concurrent sentences. Moreover, even conviction on all counts probably would not result in imprisonment at all. A prison sentence for a first-time offender would be unusual for a nonviolent class E (the lowest level) felony. Accordingly, although a New York felony conviction would be a stain on Trump’s (already highly stained) character, it would not likely lead to his serving substantial prison time.

Trump faces greater legal peril from the three other active criminal investigations. First, a grand jury in Fulton County, Georgia, could (and likely soon will) indict him for his efforts to pressure state officials to overturn the 2020 election result—most notoriously when Trump asked Secretary of State Brad Raffensperger to “find” enough votes to change the outcome. Second, special counsel Jack Smith’s investigation of Trump’s role in the broader scheme to overturn the election and the January 6 insurrection could lead to an indictment—perhaps soon as well, given the timing pressure from both the somewhat overlapping Georgia case and the approaching election. Third, Smith’s separate investigation of Trump’s seemingly intentional removal and initial refusal to return classified documents could also result in an indictment.

We do not yet know precisely what crimes will form the basis for indictments, if any, in the Georgia or two federal cases. Depending on the charges, the timing, and the sentence, there is at least some chance that Trump could be in prison on Inauguration Day: January 20, 2025. If he has become President again, what happens then?

Constitutional Grounds for Ineligibility

Article II of the Constitution sets out the qualifications for the presidency. One must be “a natural born citizen,” at least 35 years old, and a U.S. resident for at least 14 years. In Powell v. McCormack, the Supreme Court ruled that the House of Representatives could not add qualifications for its members beyond those listed in Article I. The same logic would appear to apply to qualifications for the presidency. Thus, even though one would hope that the voters would consider “not being a felon still under sentence” a de facto requirement for the presidency, as a formal matter, it is not.

Nonetheless, three additional constitutional provisions may be relevant. First, at least some of the charges Trump faces could be deemed “high crimes and misdemeanors” within the meaning of Article II, Section 4 of the Constitution, thus warranting impeachment by the House and removal by the Senate. Second, if Trump is actually in prison on Inauguration Day, that fact could render him “unable to discharge the powers and duties of his office” within the meaning of the Twenty-fifth Amendment. Third, depending on the nature and disposition of the charges brought by Smith, Section 3 of the Fourteenth Amendment could render Trump ineligible to hold any federal office, including the presidency, in virtue of his “having previously taken an oath . . . to support the Constitution” but then having “engaged in insurrection or rebellion.”

Yet each of these paths to disqualifying a felonious Trump faces substantial obstacles. Removal is not self-executing under either the impeachment clause of Article II or the Twenty-fifth Amendment. In any realistic scenario in which Trump becomes President again, at least a third (and most likely a much larger fraction) of the senators will be Republicans. As we saw the first two times Trump was impeached, regardless of the evidence, enough Republican senators will vote to acquit him to ensure that he remains in office. Meanwhile, even to initiate Trump’s removal via the Twenty-fifth Amendment requires cooperation of his Vice President and a majority of his own Cabinet. Given Trump’s transactional orientation and instinct for self-preservation, he would surely extract a promise of fealty from his running mate and any Cabinet nominees as the price of their positions.

Disqualification from office for rebellion or insurrection under Section 3 of the Fourteenth Amendment is likewise not a self-executing provision but it does not require the acquiescence of Trump-allied elected officials to come into play. The judiciary makes the relevant findings. A conviction on charges of insurrection (or its equivalent) could entail automatic ineligibility for Trump.

The Pardon Loophole?

Yet Section 3 of the Fourteenth Amendment is no magic bullet. If Trump becomes President again, he might try to pardon himself. In the 1871 case of United States v. Klein, the Supreme Court ruled that someone who had received a presidential pardon could not be deemed disloyal in virtue of his having participated on the Confederate side of the Civil War. The case involved the disposition of property rather than eligibility for office under the Fourteenth Amendment, but it nonetheless suggests that a pardon could be effective as a means of removing the taint of insurrection.

Can a President pardon himself? As I noted in a 2017 column, although the Constitution is probably best read to foreclose self-pardons, there is sufficient doubt about the matter that Trump might attempt it. Moreover, a putative prohibition on self-pardons would be relatively simple to evade with support from a pliant Congress under Republican control. Trump could resign, leaving the office of the presidency vacant. His Vice President—let’s call her Marjorie—would then become President. Marjorie would then pardon Trump and also name him as her Vice President, which Congress would confirm. At that point, Marjorie would resign the presidency, Trump would again become President, he would nominate Marjorie as his Vice President, and Congress would confirm that choice.

To be sure, the musical-chairs pardon ploy will not work if Trump’s conviction for insurrection precedes the election. At that point, he (or to be more precise, electors pledged to him) could be kept off of the ballot. However, given state administration of elections, he might stay on the ballot in enough states that he needs to win to prevail in the Electoral College. Thus, even a conviction for insurrection before the election might not suffice to prevent Trump from taking office. And if he were to become President, at that point, he could wipe out his prison sentence with either a self-pardon or a pardon by his pliant Vice President and the musical-chairs plot outlined above.

Whatever its other limits, however, the pardon power applies only to federal crimes. If, on January 20, 2025, Trump is in state prison (much more likely in Georgia than in New York) but also due to be inaugurated, neither he nor his Vice President could pardon and thus release him. Yes, he would be subject to removal via either impeachment or the Twenty-fifth Amendment but, as noted above, Congress and his Cabinet would be unlikely to invoke those processes.

Hence, crazy as it sounds, there does seem to be some realistic chance that Trump could be President while serving a prison sentence in Georgia.

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