The Oval Office or a Prison Cell?: Why Former President Trump is Not Barred By the Constitution From Running for a Second Term As President

Written By: Lauren Angeloro

On Thursday, March 30, 2023, President Donald Trump was indicted, making history as the first former President of the United States to be formally charged with a criminal offense. President Trump was charged with thirty-four counts of falsifying business records in the first degree. The charges are related to allegations concerning “hush money” payments made to adult film star Stormy Daniels, who claims to have had an extramarital affair with the former president. Further, the payments were allegedly made to benefit President Trump’s first presidential campaign in 2016 and were covered up as payment of legal fees to Michael Cohen, his former attorney, for tax purposes. During his arraignment, President Trump pled not guilty to the charges filed against him. In order for President Trump to be convicted, the prosecution team must prove that President Trump intentionally entered false information into his business records with the intent to commit, aid, or conceal the commission of some other crime.

With Trump’s indictment comes a multitude of questions surrounding his potential run for a second term as president. Many individuals seem to be asking the same questions, which include, (1) whether a former president would be constitutionally barred from running for a second term as President of the United States, even though he has been charged with a criminal offense and (2) whether a former president would be constitutionally barred from running for a second term as President of the United States, after being convicted of a criminal offense.

Are There Any Constitutional Implications of President Trump Running for a Second Term as President While Facing a Potential Criminal Charge or While in Prison if Charged?

One may believe that a former president charged with a criminal offense would surely be barred from running for president by the United States Constitution. However, legal scholars have explained that is not the case. The Constitution contains only a few requirements of individuals who intend to run for the country’s highest office. First, a presidential candidate must be a natural born citizen of the United States. Second, a presidential candidate must be at least thirty-five years old. Third, and last, a presidential candidate must have been a resident of the United States for at least fourteen years before running. With the foregoing being the only requirements of presidential candidates, there is no language that would actually prevent President Trump from running for a second presidential term while indicted. This is the case even if Trump is found guilty of some or all of the criminal charges that he currently faces.

Although seemingly unprecedented, Trump is technically allowed to run for president, while in prison, if it were to come to it. In fact, there have been two prior presidential candidates in American history who ran their campaigns while in prison. In 1920, Eugene Debs was the presidential candidate for the Socialist party, while incarcerated in a prison in Atlanta. In 1988, Lyndon LaRouche was convicted of mail fraud, but ran for president in 1992 while incarcerated. Of course, no one is saying that running a presidential campaign from prison or sitting as president while in prison would be easy. It is just not unconstitutional to do so.

What’s Next?

That brings us to the question of “what’s next?” President Trump is set to appear in court on December 4, 2023, for his next hearing regarding the criminal matter. If convicted, President Trump will need to make a final decision on whether he truly wants to pursue the presidency while incarcerated. This means finding creative solutions to the huge in-person rallies President Trump has showcased previously on his prior campaign. Various states may attempt to elect laws implementing various qualifications for presidential candidates in an attempt to make it harder for an individual with a criminal record to have their name placed on the presidential general election ballot. Finally, even if elected, there are endless questions on how a president could effectively run and maintain their office while in prison and whether there would be any accommodations for that individual.

So, in asking “what’s next” for President Trump, there really is no easy or firm answer. All that can really be determined is that President Trump is not constitutionally barred from running for President if he so chooses. Now, all we can do is wait and see whether President Trump is found guilty or not guilty and see if he will continue to maintain his presidential run no matter the case.