Could Donald Trump serve a second presidential term if convicted? – uscannenbergmedia.com
FILE – Former President Donald Trump speaking during an Iowa rally on Sept. 20. (AP Photo/Charlie Neibergall)
As Donald Trump juggles multiple indictment charges in Manhattan and leads the Republican presidential nomination, a pivotal question breaks through partisan noise: Can a convicted Donald Trump run for and assume the U.S. presidency for a second term?
“We’re stepping into a complex, legally gray area here,” said John McGinnis, constitutional law professor at Northwestern University. “The ultimate decision could rest with the Supreme Court, sway with public opinion, or even both.”
The situation becomes a bit murkier when considering the potential charges related to the Jan. 6 capitol insurrection. In this legally gray area, even if convicted on such grounds, the final verdict may not solely rest in the courtroom, but could also be influenced by the broader political landscape.
The question of Trump’s eligibility for a second term in office isn’t just about laws— it’s about who has the power to interpret or even change them.
Trump’s legal woes are one thing; his ballot eligibility is another. The question surrounding the Jan. 6 insurrection isn’t just about indictment charges— it’s about Constitutional interpretation, too.
This unprecedented case evokes the 14th Amendment, which some scholars, including Professors William Baude of the University of Chicago and Mike Paulsen of St. Thomas University, say automatically disbars former President Trump for running for reelection due to his alleged actions in the raid of the U.S. Capitol.
The 14th Amendment states that no one can hold government office if they’ve taken an oath to support the U.S. Constitution and then “engaged in insurrection or rebellion against the same or given aid or comfort to enemies thereof.”
While the Supreme Court claims to uphold the original intent of such clauses, it remains undetermined whether they would disqualify a presidential candidate based on this interpretation.
Notably, Trump appointed three of the five conservative justices currently sitting on the Supreme Court during his presidential term, raising questions about impartiality when interpreting the 14th Amendment in this particular context. Especially as it relates to the definition of “insurrection” and his alleged role in inciting the violent actions that took place.
McGinnis argues the term “insurrection” laid forth in the 14th Amendment implies a direct attempt to overthrow the American government, whereas University of Pennsylvania Professor Kermit Roosevelt suggests that even trying to overturn an election falls under the definition.
As Trump stares down potential conviction for his role on Jan. 6, 2021, Professor Kimberly Wehle of Baltimore Law School points out in The Atlantic that one criminal law Special Counsel Jack Smith might use to charge him could specifically bar Trump from future office. But even if he were convicted of an insurrection-related charge, accountability under the law would require legislative majority, along with Republican action.
The short answer: yes, but it’s complicated.
“We’re venturing toward unprecedented territory as it relates to American jurisprudence,” said McGinnis. “But the path of Trump’s potential reelection, despite a criminal conviction, is not only legally feasible, but currently constitutionally sanctioned.”
The U.S. Constitution outlines three basic eligibility requirements: the candidate must be a natural born citizen, at least 35 years old and a U.S. resident for at least 14 years. But, there is no mention of criminal convictions that could disqualify an American from running for or even serving as president.
“The Constitution is unambiguous about the qualifications for a U.S. presidential candidate. It would necessitate a constitutional amendment to preclude Trump from reentering office,” said McGinnis.
“It’s uncharted territory, but the Constitution and U.S. law, as I understand it, wouldn’t disqualify him,” said Daniel Farber, professor of law at the University of California, Berkeley.
Roosevelt added, “if the electorate wishes to vote for former president Trump in 2024, that is their constitutional right.”
Roosevelt said history can also provide instructive precedents. He noted the case of Eugene Debs, a Socialist party candidate, who ran for president from behind bars in 1920. Roosevelt says this historical precedent suggests the American political landscape has dealt with similarly complex legal and ethical questions, making the notion of a legally embattled candidate like Trump not without some basis in history.
If Trump were elected while still facing criminal charges, these cases might be deferred until he leaves office, according to Farber. He could also direct the Justice Department to dismiss federal cases against him, which requires the attorney general’s support.
On the state level, however, Roosevelt said that a state government cannot obstruct or frustrate federal functions. While it remains unclear, he said it’s likely that Trump would see release from state incarceration.
“State governments can’t interfere with federal government functions, so as it stands, state incarceration likely wouldn’t prevent Trump from assuming office again,” said Roosevelt.
Yet, legal opinions differ around self-pardoning. McGinnis and Farber believe that while presidents can pardon those affiliated, the question of self-pardoning remains unresolved. Roosevelt, however, suggests that a self-pardon may be possible, viewing pardoning as an executive action, rather than judicial.
“In terms of federal charges, there’s some division of opinion among scholars. My own view is that it would be absurd for someone to have the power to pardon their own crimes,” Farber said.
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