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Strange as it may sound, it is my understanding that both these things may happen:

  • Donald Trump is convicted and sentenced to prison in the state of Georgia.
  • Donald Trump wins the GOP nomination (alternatively runs as an independent candidate) and subsequently wins a presidential election.

Given that situation, what are the possible outcomes?

It is my understanding that this is uncharted territory from a purely legal standpoint (and one may certainly forgive lawmakers for not foreseeing this situation), which is why I post the question here rather than at law stack exchange. Furthermore, while it is true that in an ideal world this would be a purely legal matter, we can be quite certain that such a (hypothetical so far) situation would not be treated as such either by supporters or adversaries of DJT.

Therefore I believe that a legal argument is not enough. Even if the courts would eventually come to a conclusion there would me a massive political process running in parallel.

So, please focus on how a political system may handle such extraordinary circumstances.

Ted Wrigley
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Guran
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    "which is why I post the question here rather than at law stack exchange": the answer depends on whether and how the principle of sovereign immunity and head-of-state immunity are established in state courts (whether in general or specifically with respect to the federal government and its officers), and there may well be relevant precedent (or even legislation) despite the fact that the specific fact pattern has not been seen before. Users at [Law.SE] are more likely to know about that. – phoog Aug 22 '23 at 06:57
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    I would still first post on law.SE to establish that it indeed is unchartered territory.. – NoDataDumpNoContribution Aug 22 '23 at 07:34
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    It is true that in an ideal world this would be a purely legal matter. However we can be quite certain that such a (hypothetical so far) situation would not be treated as such either by supporters or adversaries of DJT. I'll edit the question to make this more clear. – Guran Aug 22 '23 at 08:01
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    How can we reasonably discuss the political aspects if /until we have a good grasp on the legal side of things? – MikeB Aug 22 '23 at 15:11
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    @NoDataDumpNoContribution It is absolutely uncharted territory at the Presidential level. And, state law is frequently materially different in the important respects from the federal Presidency. – ohwilleke Aug 22 '23 at 16:49
  • @ohwilleke But why should it be unchartered legal territory? Until the president is elected he/she is simply an ordinary citizen or not? I think this question boils down to if a a convicted person can be elected as president and I vaguely remember that this question already come up. – NoDataDumpNoContribution Aug 22 '23 at 17:45
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    @NoDataDumpNoContribution The issue has never presented itself on the merits because the person who ran for President from prison was not elected, so there is no binding precedents. There are a variety of common law and constitutional doctrines that could be invoked and require analysis, and it is not easy to foresee which of those issues would be given credence by judges and which would not. – ohwilleke Aug 22 '23 at 19:48
  • Related or duplicates: If a prisoner runs for President and wins, do they stay in prison while elected?, Has any head of state/government or other politician in office performed their duties while legally imprisoned, arrested or paroled/on probation?, What would happen if a US president was put in prison? – NoDataDumpNoContribution Aug 22 '23 at 20:38
  • @ohwilleke "the person who ran for President from prison" Isn't that simply a prisoner? If a prisoner can indeed run for president, then until they are elected they are simply prisoners and afterwards they are Presidents. Can prisoners candidate? Do candidates get special privileges? Can Presidents be in prison? That are clear questions to me. Here for this question I'm not sure at what specific problem it really hints but I linked above a few related question that may help answering this question. – NoDataDumpNoContribution Aug 22 '23 at 20:46
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    @Guran, It's not uncharted territory, This falls under the 14th Amendment. Given we have had people convicted of sedition from Jan 6th, and given Trump previously took a oath to defend the Constitution. The Bar is extremely low to exclude him running or serving as president. This amendment was used to exclude Senators and Congressmen from serving after the civil war, Congress has left in on the Books for 160 years and it's still binding today. Growing chorus of legal scholars primarily on theright believe it already applies. –  Aug 22 '23 at 22:57

2 Answers2

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This is uncharted territory. A few Governors have been convicted, but they have all been removed from office. So there are no clear analogies to look for there.

In most scenarios in which Trump wins (despite being convicted), the House and Senate would also be Republican - and this limits the political potential for impeachment. Moreover, if he has been elected, and the electorate was aware that he was in prison, Congress may be less willing to go against the will of the people. Nevertheless, impeachment is possible.

One possibility is a State pardon. But Georgia doesn't give the right to pardon to the Governor, but to a State Board of Parole, and it acts under certain guidelines - it would have to break its own rules to pardon Trump, but this is possible, since this is uncharted territory.

The courts may decide to postpone sentencing until after Trump leaves office. There's no precedent for this, but postponements are routinely done to investigate a defendant's competency to be sentenced. However this must be done at end of the trial. Once a convict has been sentenced, clemency or early release is decided by the parole board, not the trial judge.

Another possibility is an Amendment 25 act in which the Vice President takes over the day-to-day affairs of the Presidency, while staying in contact with the President. Or even uses Amendment 25 to take power entirely - this would be hard to achieve against the will of the President, and unprecedented.

And a third possibility is that the President tries to lead from his cell, but this is fraught with problems. Prisoners simply don't have freedom to meet, discuss, or negotiate. It would lead to partial paralysis of the Executive.

And I suppose we should not rule out civil disorder, with pro- and anti-Trump supporters taking their case to the streets.

My guess would be that the political pressure to Pardon would be irresistible, but that's little more than speculation.

DLosc
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James K
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Philipp Sep 04 '23 at 09:05
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This isn't entirely unprecedented, but it's definitely not common.

TLDR:

No one really knows what could happen, but it wouldn't be the first time it's been attempted and not the first time someone won an office from prison. However, it could be the first (yet unlikely) time it is successful for POTUS. And lawyers from all over the US could be involved whatever the results.

Long form answer:

Joel Caston won at a city level, rather than Federal, and this is the first time a convict won, in 2021.

Joel Caston, 44, won the race for advisory neighborhood commissioner of district 7F07 in southeast D.C., where he'll oversee the Harriet Tubman Women's Shelter, new luxury apartments and D.C. Jail — where he is incarcerated.
...
Caston has been incarcerated since he was 18 after committing a felony offense, Julie Johnson, the founder of Neighbors for Justice told NBC News.

https://www.nbcnews.com/news/us-news/washington-d-c-inmate-becomes-first-incarcerated-person-city-win-n1271033

Trump wouldn't even be the first person to run for POTUS from prison. in 1920 Eugene V. Debs got around 3% of the popular votes, but lost his bid.

There are no legal obstacles to running for president as a convicted felon or even from behind bars. And if Trump finds himself in that predicament, he’ll be following in the footsteps of another rabble-rousing populist and frequent presidential candidate: the avowed socialist Eugene V. Debs, who received nearly a million votes while in prison a century ago.

Debs is far from the only person who has sought the highest office in the land while in prison, but he was the most successful. In 1920, he became the Socialist Party nominee while serving a 10-year federal sentence for urging people to resist the World War I draft.

https://www.politico.com/news/2023/04/06/trump-running-for-president-prison-00090931

The US Constitution puts few limitations on who can be POTUS or other public offices, presumably because the Founding Fathers didn't know what the future would hold, and they probably assumed no one would vote for someone who was incarcerated.

Candidates for president must:

  • Be a natural-born citizen of the United States
  • Be at least 35 years old
  • Have been a resident of the United States for 14 years

https://www.usa.gov/requirements-for-presidential-candidates

In fact, the only disqualifications for POTUS are in the 14th Amendment, other than term limits and specific rules for removal from office.

"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof But Congress may by a vote of two-thirds of each House, remove such disability."

https://constitution.findlaw.com/amendment14/annotation15.html

The fact that someone was previously convicted can't be used to prevent that person from public office, with the exceptions of such the above listed insurrection or rebellion. If Trump were convicted of these or related crimes, such as seditious conspiracy, then he wouldn't be allowed to take office. It's unclear if he would be allowed to run to begin with, continue any existing campaign, or be allowed on ballots, but it would normally be assumed that if he wasn't allowed to take office, he would drop out of the race.

Unfortunately, in the case of Donald Trump, his disqualification to take office might be what triggers more conspiracy theories as well as more Jan 6th style riots and another attempted insurrection.

Also, voting regulations are handled at the state level, so him being allowed on ballots may be subject to what political party is in the majority in each individual state as well as what laws are officially on the books. Some states may even try to rush exceptions into law because of the situation (for and against a convicted Trump being on the ballot).

JamesK makes a case for Trump trying to lead from his cell, yet not being able to due to limitations of travel (or complete lack thereof) as well as visitors in the form of foreign dignitaries. There's also the much bigger problem of POTUS needing a security clearance to handle classified documents, as well as some classified documents being able to only be viewed inside a sensitive compartmented information facility (SCIF). (Part of Donald Trump's current legal problems with classified documents are that he removed some of them from a SCIF.)

For a moment, let's assume he wins and is allowed to take office:

I find it extremely difficult to believe that the FBI would give an inmate any kind of security clearance, especially one convicted of mishandling classified documents. Trump's administration was previously a problem for security clearances, with many of his administration originally denies a security clearance, but then the denial was reversed. I can see people trying to push the FBI to grant an incarcerated Trump a security clearance, but I also see a hard stance by the FBI to refuse doing so, up to and including multiple people retiring rather than giving him clearance.

Tricia Newbold, a longtime White House security adviser, told the House Oversight and Reform Committee that she and her colleagues issued “dozens” of denials for security clearance applications that were later approved despite their concerns about blackmail, foreign influence or other red flags, according to panel documents released Monday.

https://www.washingtonpost.com/powerpost/white-house-whistleblower-says-security-clearance-denials-were-reversed-during-trump-administration/2019/04/01/9f28334e-542c-11e9-814f-e2f46684196e_story.html

With Trump being in prison, he would be subject to all kinds of blackmail, threats of violence, criminal influence, and far more that I personally think would automatically and immediately disqualify him for a security clearance. The only way he could even attempt to do the job of POTUS is if he had his own penal wing, and that's just... wrong on so many levels. I think that's a precedent even a large amount of Republicans wouldn't want set.

A convicted Trump winning office also sets up the possibility of him pardoning himself, which is another precedent that pretty much anyone in Congress or any lawyer or judge in the country would likely want to avoid. This would completely erode any idea of laws being fair or just, and erode the idea that democracy existed in this country. (If we follow this slippery slope, it could also be a set up for Trump pronouncing himself some variety of dictator, but that's more based on the Jan 6th insurrection than "simply" any self-pardoning.)

Foreign relations would most likely cease to be favorable in any way, and that's with any POTUS being in prison.

In reality, there's a lot of supposition and general uncertainty of what could or will happen as this unfolds. About the only thing we can say for sure is that there's probably going to be a lot of lawsuits flying around regardless what happens.

computercarguy
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  • Note, that he can't pardon people (including himself) convicted of crimes against the state of Georgia, only the Georgia parole and clemency board can do that. – James K Aug 22 '23 at 22:07
  • @JamesK, as true as that is, Trump's history shows that he would likely try to do it anyway. And if he couldn't do it directly, he would likely try to get someone elected or bribed that would be his proxy to pardon him. – computercarguy Aug 22 '23 at 22:10
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    Elected officials aren't evaluated for security clearances the same way nonelected people are – bharring Aug 22 '23 at 23:32
  • "If Trump were convicted of these or related crimes, such as seditious conspiracy, then he wouldn't be allowed to take office": it's not that simple, unfortunately. WHo would prevent it? Individual states might keep him off the ballot, but it is unlikely to happen in states where Republicans are in power, as you note. Once the electoral votes are cast there really isn't a mechanism for checking that the individual who was elected meets the qualifications. On security clearance, the president doesn't need it. He's the president. – phoog Aug 23 '23 at 00:29
  • In 1992, Lyndon Larouche ran for US president from federal prison while he was serving a sentence for mail fraud. – Todd Wilcox Aug 23 '23 at 00:47
  • @phoog, Congress would probably be the body responsible for enforcing the 14th Amendment, since they would be the ones that certify the electoral ballots. They would likely have to refuse the ballots cast for Trump, which would prevent him from taking office. And the Supreme Court would have to rule against any lawsuits claiming he won. And yes, POTUS still needs a security clearance, that way the FBI can downgrade/revoke it after they leave office or are incarcerated. – computercarguy Aug 23 '23 at 00:56
  • "since they would be the ones that certify the electoral ballots": each state's electors certify their ballots. Congress merely counts the certified ballots and announces the result (assuming someone received a majority of the electoral votes). The constitution does not provide for examination of the candidates' qualifications at that point, and the statute explicitly forbids it: https://www.law.cornell.edu/uscode/text/3/15#d_2_B_ii – phoog Aug 23 '23 at 01:24
  • I think the real question is what happens when an imprisoned Donald Trump wins the election. Does the Supreme Court step in to order his release? Does the VP just take over b/c of the "incapacity" of Trump? – NovaDev Aug 23 '23 at 15:22
  • @NovaDev, the Supreme Court doesn't have the jurisdiction to unilaterally release Trump (or anyone at the state level), but if Trump's lawyers appear enough times to get to the Supreme Court, then they can do whatever. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about However, it would probably take longer to get through appeals courts than 4 years. JamesK went through the scenario of the VP taking over, so I didn't rehash that. – computercarguy Aug 23 '23 at 16:07
  • @phoog, actually d2Bii states that the State electors must be legally certified or Congress can object. I would think that a candidate that's not legally allowed to hold office would not legally be allowed to have state electors certified for them. It wouldn't matter if the candidate was a minor, a fictional character, or an insurrectionist at that point, it would still be illegal to certify electors for that person. IANA lawyer, but that's how I read it. And after an objection, the House makes a "determination", so yes, Congress would have to validate the votes, even if I used the wrong word. – computercarguy Aug 23 '23 at 16:22