Not since Eugene V. Debs campaigned from prison more than a century ago has the United States seen what is likely to happen now: a leading candidate with felony convictions running for president — and never before has that candidate actually stood a chance of winning.
Former President Donald J. Trump has been charged with dozens of felony counts in four cases — two in federal court, one in New York state and one in Georgia — with the first to go to trial in a New York sex scandal cover-up, with jurors set to begin deliberations on Wednesday.
For now, he is under no formal campaign restrictions and remains highly competitive in the polls, but if he were convicted, the Constitution and American law provide clear answers to only some of the questions that would arise.
Any other bill would take the country into truly uncharted territory and put crucial decisions in the hands of federal judges.
Here's what we know and what we don't know.
Could Trump run for office if convicted?
This is the easiest question. The answer is yes.
The Constitution lays out few qualifications for the presidency: A president must be at least 35, a “natural-born” citizen, and have lived in the United States for at least 14 years.
There are no character or criminal history restrictions. Although some states prohibit felons from running for state or local office, these laws do not apply to federal office.
Republicans and Democrats are guaranteed a place on the general election ballot in each state, and each party tells election officials whose names to put on the ballot. In theory, states could block Trump from appearing on the ballot by passing laws requiring him to have a clean criminal record, but that's on shaky legal grounds.
“It allows states to decide when, where and how elections are held,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law, “but I think the best interpretation of the Constitution is to not allow states to add new substantive requirements.”
While this view is not universal among legal experts, it prevailed in the courts in 2019 when California passed a law requiring candidates to disclose their tax returns in order to appear on the primary ballot. A federal district court judge blocked the law, finding it likely unconstitutional. The California Supreme Court also unanimously blocked it, finding it unconstitutional, and the case never reached the U.S. Supreme Court.
What about the 14th Amendment?
The Supreme Court unanimously ruled in March that states could not block Trump from appearing on the ballot under Section 3 of the 14th Amendment to the U.S. Constitution, which disqualifies anyone who “participates in insurrection or rebellion” after taking an oath to support the U.S. Constitution.
Numerous lawsuits had argued that Trump's conduct before January 6, 2021, met this test. In December, the Colorado Supreme Court found him ineligible, as did Maine's secretary of state. But the court, led by a conservative supermajority and three justices appointed by Trump himself, concluded that only Congress has the power to enforce Article III against candidates for federal office. (Four justices, including three liberals, wanted to allow broader ineligibility options.)
Congress is unlikely to do so as long as Republicans control the House, and because the 14th Amendment is separate from criminal cases, a conviction would not disqualify Trump.
Anthony Michael Kreis, an assistant law professor at Georgia State University, said Congress could designate groups of people to whom Article III would apply (such as those who fought for the Confederacy) or designate specific crimes that would make someone eligible for disqualification if convicted, but none of the crimes Trump is charged with would automatically make him eligible for that punishment.
“Whether Trump is tried and convicted or acquitted is a separate issue from whether he is disqualified,” said Richard L. Hazen, an election law expert at the University of California, Los Angeles.
One of the charges in the federal case – conspiracy to commit civil rights violations related to Trump's attempt to overturn the results of the 2020 election – was once subject to disqualification but was eliminated by Congress decades ago, Kreiss said.
Can the party remove him from its list of candidates?
Now that Trump has secured a majority of the Republican National Convention's delegates, the party has no mechanism for nominating another candidate: The party's official convention rules state that if a delegate seeks to endorse anyone other than the person nominated in the primary elections, “no such endorsement shall be permitted.”
Republican leaders have also not shown any interest in a new candidate.
If he is forced to withdraw from the race rear After the release of the “Access Hollywood” tape in which Trump bragged about grabbing women's genitals at the convention, party officials considered replacing him, but this seems unlikely given how thoroughly the party has cracked down on him.
If convicted, would he be able to vote?
Probably not.
Trump is registered to vote in Florida and would be disqualified from voting in the state if he is convicted of a felony.
Most felons in Florida regain their voting rights after serving their full sentence, including parole or probation, and paying fines and fees, but if Trump is convicted, it is highly unlikely he would have time to serve his sentence by Election Day.
They can also petition for a pardon, which requires approval from Governor Ron DeSantis, Trump's Republican primary opponent, and two Florida Cabinet members. Chris Taylor, director of external relations for the Florida Board of Criminal Review, confirmed that Floridians convicted of a felony can apply to have their voting rights restored through the process, even if they were convicted outside of Florida.
Trump also has a residence in New York, so he could move his voter registration there and take advantage of a more lenient approach. Felons in New York can vote while on parole or probation, but, like Florida and most other states, they still can't vote while in prison.
So if Trump were to be incarcerated, he could be in the unusual position of being eligible to vote but deemed ineligible to vote.
What if Trump gets elected from prison?
Nobody knows.
“We're so far removed from anything that's ever happened,” said Erwin Chemerinsky, a constitutional law expert at the University of California, Berkeley. “It's just speculation.”
Legally, Trump would remain eligible to serve as president even if he was incarcerated. There is nothing in the Constitution to the contrary. “I don't think the framers of the Constitution anticipated we'd end up in this situation,” Levinson said.
In reality, the election of an incarcerated president would almost certainly create legal crises that would need to be resolved by the courts.
In theory, Trump could be stripped of his powers under the 25th Amendment to the Constitution, which provides for a procedure for transferring power to the vice president if the president is “unable to discharge the powers and duties of his office.” But that would require the vice president and a majority of his cabinet to declare that Trump is unable to discharge his duties — an unlikely outcome given that his cabinet members are loyal supporters appointed by Trump himself.
What's more likely is that Trump will sue for release, arguing that his imprisonment prevents him from fulfilling his constitutional duties as president.
With only federal charges, the president could attempt a self-pardon, or commute the sentence and leave the conviction in place, ending the incarceration. Either action would be an extraordinary exercise of presidential power, and the Supreme Court would be the final arbiter of whether a “self-pardon” is constitutional.
Alternatively, President Biden could pardon Trump when he leaves office, Chemerinsky said, because “the people have heard him and he needs to be pardoned so he can govern.”
But a presidential pardon would not be an option when it comes to the New York or Georgia cases, because the president does not have the power to pardon state charges — an especially important point to keep in mind given that the New York case is the only one that has gone to trial so far, and may be the only one come November.
What would happen if he were elected with the lawsuit still ongoing?
Again, no one knows, especially when it comes to the New York and Georgia cases.
The two federal cases are likely to end with the attorneys general appointed by President Trump dropping the charges.
The Department of Justice does not indict sitting presidents, a policy outlined in a 1973 memorandum during the Nixon administration. The Department had no reason to develop a policy for what to do about a president-elect who had already been indicted. But the reasons for not indicting a sitting president — that it would impair his ability to do his job — apply equally to this hypothetical scenario.
“The reasons you don't want to indict a sitting president are the same reasons you don't want to indict a sitting president,” said Chemerinsky, who disagrees with the Justice Department's reasoning. “My guess is that if the prosecution of Trump is still ongoing in some form and Trump gets elected, the Justice Department — meaning the Trump Justice Department — will say, 'We're going to follow the 1973 memo.'”
Like so much else here, this has not been legally tested, so it's impossible to say how the Supreme Court would respond if the issue made it to the Supreme Court.
In the 1997 decision Clinton v. Jones, the Court allowed a lawsuit against President Bill Clinton to proceed, but the lawsuit was a civil lawsuit, not a criminal one, and was brought by private citizens, not the government itself.
Charlie Savage Contributed report.