Donald Trump can still run for president after his indictment—and even govern from jail

Stefanie Lindquist

The Conversation

A Manhattan grand jury has voted to <a href="https://www.nytimes.com/live/2023/03/30/nyregion/trump-indictment-news">indict former President Donald Trump</a>. The specific state felony charges, reports The New York Times, “remain a mystery” but will be related to the Manhattan district attorney’s investigation of Trump for making hush money payments to a porn star just before the 2016 presidential election.<div class="paywall-selector"></div><div class="paywall">



It’s the first time a U.S. president or former president has been indicted.



At the same time, Trump is expected to continue his&nbsp;<a href="https://www.donaldjtrump.com/">campaign for the presidency</a>, seeking to regain in 2024 the position&nbsp;<a href="https://apnews.com/article/donald-trump-michael-pence-electoral-college-elections-health-2d9bd47a8bd3561682ac46c6b3873a10">he lost in 2020 to Joe Biden</a>.



What are the consequences of an indictment and potential trial for his campaign and, if his effort is successful, his future presidency?



<a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Article II of the U.S. Constitution</a>&nbsp;<a href="https://theconversation.com/no-an-indictment-wouldnt-end-trumps-run-for-the-presidency-he-could-even-campaign-or-serve-from-a-jail-cell-194425">sets forth very explicit qualifications for the presidency</a>: The president must be 35 years of age, a U.S. resident for 14 years and a natural-born citizen.



In cases involving analogous qualifications for members of Congress,&nbsp;<a href="https://www.oyez.org/cases/1968/138">the Supreme Court has held</a>&nbsp;that such qualifications form a “constitutional ceiling” – prohibiting any additional qualifications to be imposed by any means.



Thus, because the Constitution does not require that the president be free from indictment, conviction or prison, it follows that a person under indictment or in prison may run for the office and may even serve as president.



This is the prevailing legal standard that would apply to former President Trump. The fact of his indictment and potential trial is irrelevant to his qualifications for office under the Constitution.



Nevertheless, there seems no question that indictment, conviction or both – let alone a prison sentence – would significantly compromise a president’s ability to function in office. And the Constitution doesn’t provide an easy answer to the problem posed by such a compromised chief executive.



<h2 class="wp-block-heading">Governing from jail?</h2>



A presidential candidate could be indicted, prosecuted and convicted by either state or federal authorities. Indictment for a state crime may seem less significant than federal charges brought by the Department of Justice.



Ultimately, though, the spectacle of a criminal trial in state or federal court would have a dramatic effect on a presidential campaign and on the credibility of a president, if elected.



All defendants are presumed innocent until proved guilty. But in the case of conviction, incarceration in state or federal prison involves restrictions on liberty that would significantly compromise the president’s ability to lead.



This point – that functioning as president would be difficult while under indictment or after being convicted – was made plain in a&nbsp;<a href="https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf">2000 memo</a>&nbsp;written by the Department of Justice. The memo reflected on a&nbsp;<a href="https://s3.documentcloud.org/documents/4517361/092473.pdf">1973 Office of Legal Counsel memo produced during Watergate</a>&nbsp;titled “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” The background to the 1973 memo was that&nbsp;<a href="https://www.britannica.com/event/Watergate-Scandal">President Richard Nixon was under investigation</a>&nbsp;for his role in the Watergate break-in and&nbsp;<a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1010.html">Vice President Spiro Agnew was under grand jury investigation for tax evasion</a>.



These two memos addressed whether a sitting president could, under the Constitution, be indicted while in office. They concluded he could not. But what about a president indicted, convicted, or both, before taking office, as could be the case for Trump?



In evaluating whether a sitting president could be indicted or imprisoned while in office, both the 1973 and 2000 memos outlined the consequences of a pending indictment for the president’s functioning in office. The earlier memo used strong words: “[t]he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”



Even more pointedly, the memos observe that a criminal prosecution against a sitting president could result in “physical interference with the President’s performance of his official duties that it would amount to an incapacitation.”



The memo here refers to the inconvenience of a criminal trial that would significantly detract from the president’s time commitment to his burdensome duties.



But it’s also lawyer’s language to describe a more direct impediment to the president’s ability to govern: He might be in jail.



<h2 class="wp-block-heading">Core functions affected</h2>



According to the 1973 memo, “the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.”



Because these core functions require meetings, communications or consultations with the military, foreign leaders and government officials in the U.S. and abroad in ways that cannot be performed while imprisoned, constitutional law scholar&nbsp;<a href="https://www.universitypressscholarship.com/view/10.12987/yale/9780300123517.001.0001/upso-9780300123517-chapter-2">Alexander Bickel remarked in 1973</a>&nbsp;that “obviously the presidency cannot be conducted from jail.”



Modern presidents are peripatetic: They travel nationally and globally on a constant basis to meet with other national leaders and global organizations. They obviously wouldn’t be able to do these things while in prison. Nor could they&nbsp;<a href="https://georgewbush-whitehouse.archives.gov/infocus/katrina/">inspect the aftermath of natural disasters</a>&nbsp;from coast to coast,&nbsp;<a href="https://www.reaganlibrary.gov/archives/speech/remarks-announcing-intention-nominate-sandra-day-oconnor-be-associate-justice">celebrate national successes and events</a>&nbsp;or&nbsp;<a href="https://obamawhitehouse.archives.gov/the-press-office/2016/10/13/remarks-president-opening-remarks-and-panel-discussion-white-house">address citizens and groups on issues of the day</a>, at least in person.



Moreover, presidents need access to classified information and briefings. But imprisonment would also obviously compromise a president’s ability to access such information, which must often be&nbsp;<a href="https://www.nbcnews.com/politics/politics-news/what-scif-who-uses-it-n743991">stored and viewed in a secure room</a>&nbsp;that has been protected against all manner of spying, including blocking radio waves – not something that’s likely available in a prison.



As a result of the president’s varied duties and obligations, the memos concluded that “[t]he physical confinement of the chief executive following a valid conviction would indisputably preclude the executive branch from performing its constitutionally assigned functions.”



Translation: The president couldn’t do his job.



<h2 class="wp-block-heading">Running from prison</h2>



Yet what to do if citizens actually elect an indicted or incarcerated president?



This is not out of the question. At least one incarcerated presidential candidate, Eugene Debs, garnered almost a million votes&nbsp;<a href="https://www.270towin.com/1920_Election/">out of a total 26.2 million cast</a>&nbsp;in the election of 1920.



One potential response is the 25th Amendment, which enables the president’s Cabinet to declare the president “unable to discharge the powers and duties of his office.”



The two Department of Justice memos note, however, that the framers of the 25th Amendment never considered or mentioned incarceration as a basis for the inability to discharge the powers and duties of the office. They write that replacing the president under the 25th Amendment would “give insufficient weight to the people’s considered choice as to whom they wish to serve as their chief executive.”



All this brings to mind Justice Oliver Wendell Holmes’&nbsp;<a href="https://www.google.com/books/edition/The_Supreme_Court_and_American_Constitut/sPiGrv0h6mkC?hl=en&amp;gbpv=1&amp;dq=If+my+fellow+citizens+want+to+go+to+hell,+I+will+help+them.+Its+my+job&amp;pg=PA11&amp;printsec=frontcover#v=onepage&amp;q&amp;f=false">admonition about the role of the Supreme Court</a>: “If my fellow citizens want to go to Hell I will help them. It’s my job.”



Holmes’ statement came in a letter reflecting on the Sherman Antitrust Act, which he thought was a foolish law. But Holmes was prepared to accept the popular will expressed through democracy and self-determination.



Perhaps the same reflection is apt here: If the people choose a president hobbled by criminal sanctions, that is a form of self-determination too. And one for which the Constitution has no ready solution.



<a href="https://theconversation.com/profiles/stefanie-lindquist-518039">Stefanie Lindquist</a> is Foundation Professor of Law and Political Science at Arizona State University



This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/ancient-dna-is-restoring-the-origin-story-of-the-swahili-people-of-the-east-african-coast-201154">original article</a>.</div>

Trump can still run for president after his indictment

<div id="text1_wrapper" class="text1_wrapper transparent-border">
<div id="text1" class="text1">Subscribe to Well Adjusted, our newsletter full of simple strategies to work smarter and live better, from the Fortune Well team. <a href="https://mynewsletters.fortune.com/well-adjusted?utm_source=plea&utm_medium=website&utm_campaign=wa">Sign up today</a>.</div>
</div>

F-Wire

Donald Trump

Politics

Trump can still run for president after his indictment | Fortune

Matt Sedensky

The Associated Press

Michael Montgomery poses at his home in Huntington Woods, Mich., Friday, April 18, 2025.

‘I’m not looking’ — Americans close to retirement are afraid to check their account balances

/article/americans-close-to-retirement-are-afraid-savings-balance-trump-401k/

Mario Parker

Bloomberg

.S. President Donald Trump talks to reporters during a meeting with Norway's Prime Minister Jonas Gahr Store in the Oval Office at the White House on April 24, 2025 in Washington, DC.

Trump’s polls decline near 100-day mark, raising tax-plan stakes

/article/trump-polls-decline-near-100-day-mark-tax-plan/

Leah Willingham

John Raby

West Virginia Coal Festival teen beauty pageant winner Ava Johnson, 16, collects small pieces of coal left behind at the former Kay Moor coal town and camp in the New River Gorge National Park and Preserve near Fayetteville, W.Va., Thursday, April 17, 2025

Teen pageant winner supports Trump’s coal push— ‘It’s not just coal, it’s our way of life’

/article/trump-coal-west-virginia-industry-push/

Chinese e-commerce apps on a smartphone - Temu, Shein, and AliExpress

Shein hikes US prices as much as 377% ahead of tariff increases

/article/shein-raises-us-prices-tariffs-beauty-home-goods/

Chloé Meley

Redd Brown

Crowded Times Square with multiple ads on a sunny day with clear blue sky, wide angle view, New York, USA

Advertising giants brace for tariff-induced cuts to ad spending

/article/advertising-giants-brace-for-tariff-induced-cuts-to-ad-spending/

Chris Megerian

Amelia Thomson-Deveaux

Elon Musk arrives for US President Donald Trump's address to a joint session of Congress in the House Chamber of the US Capitol in Washington, DC, on March 4, 2025.

Elon Musk’s public approval sank as he ramped up DOGE, poll reveals

/article/elon-musks-public-approval-sank-as-he-ramped-up-doge-poll-reveals/

Stuart Dyos

Execs at Ray Dalio’s hedge fund say we’re in a ‘once-in-a-generation’ economic shift that ‘threatens the existing world order’

https://fortune.com/article/ray-dalio-hedge-fund-bridgewater-associates-economic-shift-us-stocks-donald-trump-world-order-economy/?itm_source=parsely-api

Dave Smith

The Vatican asked Pope Francis funeral attendees to wear all black. Trump wore a blue suit

https://fortune.com/article/pope-francis-funeral-dress-code-donald-trump-blue-suit/?itm_source=parsely-api

Amanda Gerut

Nail salon employee pleads guilty after holding 13 remote IT jobs worked by developers in China

https://fortune.com/article/nail-salon-employee-pleads-guilty-remote-work-it-north-korea-china-kim-jong-un/?itm_source=parsely-api

Jeremy Kahn

ServiceNow's CEO says company is capitalizing on economic upheaval—and projects revenue growth of more than 18% this year

https://fortune.com/article/servicenow-bill-mcdermott-earnings-beat-outlook/?itm_source=parsely-api

Orianna Rosa Royle

Commuters' latest return to office rebellion is 'barebacking'—and it's unnerving fellow passengers

https://fortune.com/article/commuters-latest-return-to-office-rebellion-is-barebacking-and-its-unnerving-fellow-passengers/?itm_source=parsely-api

Emma Burleigh

CEO of $65 billion software giant Workday's warning: 'There's nothing more dangerous than yesterday's success'

https://fortune.com/article/workday-ceo-carl-eschenbach-career-advice-dangerous-success-failure/?itm_source=parsely-api