Does a Criminal Conviction Bar You From Running for U.S. President?

Federal laws, and the consequences for breaking them, are written by Congress, but Congress doesn't have the final word. Even a federal law that's been on the books for decades can still be struck down by the Supreme Court if it's found to be in violation of the Constitution.

The Constitution (Article II, Section 1, Clause 5) clearly lays out the qualifications for the presidency:

The question is, can Congress write a law that adds qualifications for federal office — or disqualifications in this case — to what's already written in the Constitution? Almost certainly not, says Derek Muller, a law professor at the University of Iowa College of Law and a contributor to the Election Law Blog.

"There's a pretty robust understanding of law that says Congress cannot add qualifications for federal office," says Muller. "You can imagine, as a practical matter, why that would be a problem. Congress could pass a statute that disqualifies its political enemies or makes it more difficult for its disfavored candidates to win."

So even if a federal law says that violators will be disqualified from holding office, it could be challenged in court. And odds are very good that the Supreme Court justices would strike down the "disqualification" part as unconstitutional and let the person run for office again.

There is, however, a previously little-known clause in the Constitution that disqualifies people from office who have committed one specific crime: insurrection.

Section 3 of the 14th Amendment reads:

"That's the only other place in the Constitution that says, this is prohibited conduct and we don't want individuals serving in government who have assisted in some sort of rebellion," says Muller.

Section 3 of the 14th Amendment was written in the wake of the Civil War, when Congress wanted to prevent any officials who served in the Confederacy from holding federal or state office again. In 1872, that disqualification (or "disability" in legal language) was lifted by Congress for most of the banned officials.

The "disqualification clause" of the 14th Amendment was collecting dust until the Jan. 6, 2020, attack on the Capitol and accusations that former President Trump incited the insurrection. But what exactly would it take for Trump or another government official who had "previously taken an oath... to support the Constitution of the United States" to be disqualified from office under the 14th Amendment?

"There's a lot of debate about that," says Muller. Does the individual need to be convicted of inciting or supporting a rebellion? Does Congress have to pass a separate "enabling statute" that identifies the individuals who participated in the insurrection or rebellion? There are even people who question whether the disqualification applies to the presidency at all.

Muller says that the framers of the Constitution consciously set a "very low bar" of entry for running for office. Unlike European aristocracies, American officeholders didn't have to own land or be wealthy. That's the beauty of American-style democracy. "Just about anyone can run," says Muller.

And that goes for convicted felons and other criminals. In the 1920 presidential election, the outspoken socialist Eugene Debs campaigned for president from a federal prison in Georgia. Debs was charged and convicted of sedition in 1918 for his fiery speeches denouncing America's participation in World War I. Running as "Convict No. 9653," Debs won 3.5 percent of the vote in 1920.

More recently, the fringe politician Lyndon LaRouche ran for president three times in the 1990s and early 2000s after serving seven years in a federal prison for defrauding the IRS.

As Muller says, just about anybody can run for political office in America, but is there a difference between running and winning? And if a criminal or suspected traitor is elected to office, are there other ways to remove them or disqualify them from running again?

Yes, says Muller. Impeachment is the big one. According to the Constitution, Congress has the authority to launch impeachment proceedings against "The President, Vice President and all Civil Officers of the United States." If a majority of the House votes to impeach, that's followed by a trial in the Senate. If the Senate votes to convict the official of "Treason, Bribery, or other high Crimes and Misdemeanors," the person is removed from office.

Civil officers who have been impeached by the House include 15 federal judges; three presidents (Andrew Johnson, Bill Clinton and Donald Trump who was impeached twice); a cabinet secretary and a U.S. senator, according to the U.S. House of Representatives. Only eight of this group, all federal judges, were convicted and removed from office by the Senate.

Disqualification from future office is an optional punishment with impeachment. In its history, the Senate has only barred three people from serving again in the federal government, all federal judges.

Impeachment is the only legitimate constitutional tool to bar someone from office, but that doesn't mean that Congress hasn't experimented with other methods. In the 1960s, an outspoken Harlem congressman named Adam Clayton Powell embarrassed his colleagues in the House with some "suboptimal public dealings," says Muller.

First, the House voted to strip Powell of his committee posts, and then it took an unprecedented step — the House voted to "exclude" Powell from the next Congress. In other words, they tried to disqualify him from office. Powell sued and the case made it to the Supreme Court, which ruled that the House's actions were unconstitutional. (Powell was so popular in his home district that he was elected back to Congress with 86 percent of the vote.)

Congress could try to do the same thing with a president. In 2020, on the same day as the Jan. 6 insurrection, 147 Republican congressmen and women raised objections to certifying President Joe Biden's victory over allegations of voter fraud. Congress came close, in other words, to refusing to seat an elected president.

"You're really in uncharted territory at that point," says Muller. "If a majority of the Electoral College, which represents the people and the states, has chosen a president, it's very hard for Congress to turn around and say we're going to reject that — as a political matter, which is different from the legal question."

Originally Published: Aug 22, 2022