How Trump’s Candidacy Tests the US Constitution: QuickTake

Like no one before him, Donald Trump is at once a former president, a leading candidate to be nominated for the presidency again, and a criminal defendant. He faces 91 felony charges in four separate cases for conduct before, during and after his presidency, including conspiring to defraud the US in his efforts to overturn his 2020 election loss, mishandling classified documents, and falsifying business records to cover up hush money to an adult film actress. This unprecedented situation raises questions that previously would have been implausible law school hypotheticals. These are some of them.

1. Is Trump immune from prosecution as a former president?

Trump says his efforts to overturn his defeat by Joe Biden — the subject of two of the four criminal cases against him — were official acts and therefore immune from prosecution. His legal team notes that, in 2021, the Senate fell short of the two-thirds majority vote needed to convict him of an impeachment charge related to that same behavior. Trump’s immunity claim was rejected on Dec. 1 by a US district judge who suggested he was seeking “the divine right of kings to evade the criminal accountability that governs his fellow citizens.” That decision was upheld by a unanimous decision of a three-judge appeals court panel on Feb. 6. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel said. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.” Trump has signaled that he will take his fight to the Supreme Court if necessary. That court in the past has held that presidents are entitled to sweeping protection over actions they took within the “outer perimeter” of their official duties. But that was about immunity from civil lawsuits. Trump is the first former president to face federal charges, so claims of immunity from criminal prosecution are uncharted territory.

2. Is someone convicted of a crime eligible to serve as president?

Generally speaking, yes. The US Constitution says the president must be at least 35 years old, a natural-born citizen and a 14-year resident of the US; a clean criminal record is not a job requirement. The 14th Amendment to the Constitution, adopted after the Civil War and little-discussed for decades, does block from public office anyone who has “engaged in insurrection or rebellion” against the US. Trump was not charged with insurrection or rebellion. Still, many Americans say those terms apply to what happened on Jan. 6, 2021, when a violent pro-Trump mob attacked the US Capitol as Congress was certifying the results of the 2020 election. The attack followed a rally at which Trump repeated his false claims that the election had been fraudulently stolen from him.

3. Does the 14th Amendment make Trump ineligible to serve again?

That question now sits squarely before the US Supreme Court. Two states, Colorado and Maine, have said they will keep Trump’s name off presidential ballots on the basis of the 14th Amendment’s insurrection clause. Courts or election officials in at least four other states have ruled in Trump’s favor. Trump asked the Supreme Court to overturn the Colorado ruling, and the court agreed to consider the case, scheduling arguments for Feb. 8.

Read more: The 14th Amendment Challenge to Trump, Explained

4. Could Trump, as president, pardon himself?

Not if he’s convicted on state charges such as those he faces in New York and Georgia. That’s because the president’s constitutional power to “grant reprieves and pardons for offenses against the United States” applies only to federal crimes. As for the dozens of counts he faces in two federal prosecutions, legal scholars disagree on whether the president can self-pardon. Some point to the advice given by the Justice Department’s Office of Legal Counsel to President Richard Nixon in 1974 in connection with the Watergate scandal: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

5. Could Trump, while president, be sent to prison?

This is also unclear. There’s an argument that the president’s responsibilities would override the imperative to serve a prison sentence. “Constitutionally you’d have a pretty good argument that you would have to let him out while he’s president,” said Brian Kalt, a Michigan State University law professor whose 2012 book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, anticipated some of the current questions surrounding Trump.

6. Could Trump be president from prison?

The logistical and security hurdles presented by a president behind bars boggle the mind. If it came to that, the 15 department heads who make up the presidential cabinet could declare the president “unable to discharge the powers and duties of his office” under the terms of the Constitution’s 25th Amendment and temporarily assign authority to the vice president. But, as Kalt writes, that amendment is mainly viewed as applicable only if a president is “completely incapacitated” by, say, a stroke or severe dementia.

7. If elected, could Trump be removed by (another) impeachment?

In the event Trump wins the presidency again, lawmakers could try once more to force his removal by arguing that his conduct related to Jan. 6 meets the constitutional standard of “high crimes and misdemeanors.” Trump’s defenders would surely argue that his previous acquittal settled that issue. Any new impeachment approved by the House of Representatives would, like the last one, face a steep uphill battle to achieve the supermajority vote in the Senate required to remove a president from office.

The Reference Shelf

• The appeals court decision denying Trump’s claim of immunity against criminal prosecution.
• A deeper dive into whether the 14th Amendment bars Trump from being president again.
• The Lawfare blog reviews Trump’s possible defenses.
• QuickTake explainers of the cases against Trump and Trump’s use of presidential pardons.

--With assistance from Zoe Tillman and Greg Stohr.

To contact the reporter on this story:
Gregory Korte in Des Moines, Iowa at gkorte@bloomberg.net

To contact the editors responsible for this story:
Mario Parker at mparker22@bloomberg.net

Elizabeth Wasserman, John O’Neil

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