Since former President Richard Nixon resigned in 1973 under the threat of impeachment, constitutional law experts have debated what would happen if an incarcerated person ran for president and won.
The question that has been largely theoretical for 50 years is becoming more relevant now that a former president and current Republican 2024 front-runner is in legal jeopardy.
A Manhattan grand jury on Thursday indicted Donald Trump in connection with alleged hush money payments for Stormy Daniels. The former president plans to fly to New York on Monday before appearing in court the next day to face unspecified charges.
Article II of the Constitution doesn’t offer much help. It only requires that a president be a natural-born citizen, at least 35 years of age and a U.S. resident for 14 years.
A 1973 Office of Legal Counsel memo and a separate 2000 Department of Justice memo were created to address the possibility that the Founding Fathers didn’t specifically address, Salon reports.
Running for president from behind bars isn’t without precedent.
In 1920 an incarcerated Eugene Debs ran for president as a Socialist Party of America candidate and collected nearly a million votes. Debs was convicted under the 1918 Sedition Act.
But what would happen if an incarcerated candidate won?
Salon’s Stefanie Lindquist writes that: “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 Alexander Bickel remarked in 1973 that ‘obviously the presidency cannot be conducted from jail.’"
Lindquist concludes, "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.”
