US Justice: Donald Trump case: Governing from prison?

Donald Trump is once again pushing the USA to the limits of what is imaginable. The ex-president is scheduled to appear in an Atlanta jail on Thursday over the latest charges against him in the state of Georgia. The unprecedented series of criminal prosecutions against the current presidential hopeful raises a multitude of questions that the US constitutional system has not yet had to answer: Can Americans elect a convicted felon to the highest office of state? Would it be possible for a US President to rule the country from prison?

Such a situation has never existed before, says constitutional lawyer Gregory Magarian from Washington University in St. Louis. Much can only be speculated about. Above all, it is questionable whether there will be even a single final judgment against Trump by the next presidential election in early November 2024. Because there are plenty of ways to prolong the procedure with legal dodges. And appeals are to be expected. The country still has to deal with the eventualities.

Can Trump always run for the presidential election?

Yes. The Constitution has only three requirements: Applicants must be native-born US citizens, at least 35 years old, and have lived in the US for at least 14 years. There are no other requirements. In the meantime, it has been debated that Trump could possibly be charged and convicted in one of the proceedings against him for the rare criminal offense of rioting. And according to the constitution, anyone who participated in an uprising against the government is barred from public office. However, this charge has not yet been brought against Trump. Even if that were to follow, Trump would not be directly ousted from the presidency anyway, Magarian explains. “It doesn’t happen automatically.” The issue would have to be dealt with separately in court.

Would Trump even be allowed to run for election if he were convicted in one of the criminal proceedings and arrested?

Yes. “He can run for president – even if he’s convicted, even if he’s in prison,” says Magarian. With the socialist Eugene Debs, there was already a presidential candidate in US history who was convicted and had to contest the election from prison: That was in 1920. Debs did not emerge victorious from the election at the time, but did get out of prison almost a million votes. It would also be theoretically possible for Trump to turn prison into an election campaign – but that would be a logistical challenge, far more so than 100 years ago.

Should Trump rule the country from prison?

“Legally, yes,” says Magarian. “There is no constitutional provision that says that a person who is incarcerated cannot serve as President of the United States.” But the lawyer emphasizes: “This is uncharted territory.” The problem is that “a man sitting in a jail cell can’t do the things that a president has to do.” In this respect, the 25th Amendment of the Constitution could come into play in such a case. It states that the vice president and a majority of key cabinet members can declare the president unfit to hold office. This would not be likely, however, since Trump alone in the cabinet is likely to rally loyal supporters around him. In such a case, Trump could rather go to a court and request his release – on the grounds that this is the only way he can fulfill his official duties. However, according to legal experts, he could not order his release from prison himself.

Should Trump – if convicted – vote in the election himself?

Probably not. Most US states have rules – in varying degrees – that prohibit convicted felons from voting. That should also affect Trump if he is convicted. A few years ago, the Republican moved his primary residence to the state of Florida and also registered there to vote in the 2020 presidential election. In Florida, convicted criminals can only vote again after they have served their entire sentence, including probation. If Trump were convicted before the election, it would be inconceivable that he would have served his sentence by election day.

In the event of an election victory, what would happen with open procedures that have not yet been clarified by election day and taking office?

Trump could try to get the court to postpone the proceedings until after his presidency. “It would be up to the courts and ultimately certainly the Supreme Court to clarify these questions,” emphasizes Magarian. At least in the two proceedings against Trump at the federal level – the document affair and the attempted election fraud – the 77-year-old could also intervene himself. “He could try to order his Attorney General to fire the special counsel,” says Magarian. Without the special counsel, his procedures would also be off the table. A Justice Department under Trump could simply drop the criminal proceedings against him. Trump has shown before that he does not shy away from attempts of this kind. He has also publicly stated that he intends to fire the special counsel in charge of the two federal cases, Jack Smith, if he becomes president again.

Could Trump pardon himself as president?

“Ultimately, we don’t know because it has never happened,” says Magarian. “But I see no reason why he couldn’t.” But that would only apply to the two federal-level cases – in the case of a state-level conviction, in Trump’s case in New York and Georgia, the respective governor would have to decide on a pardon. And even in the federal government, such a step is likely to trigger major upheavals, says Magarian. Depending on the majority in Congress, an unprecedented self-pardon by the President in Parliament could trigger impeachment proceedings against him. The result would be a showdown between Congress and the President – in which the President’s actually untouchable right to pardon would be opposed to the actually untouchable power of impeachment of Congress.

“From a purely constitutional point of view, that would be the worst crisis imaginable, and the courts would be forced to resolve it,” says Magarian. The situation would be “chaotic”.

Another variant: Joe Biden could pardon Trump while he is still president himself. For reasons of state, to keep society from falling apart – but possibly also to forestall a possible acquittal of Trump, which could have even greater consequences for the constitutional system. A president can also pardon someone before a possible conviction.