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

By: Dave Roos  | 
Mar-A-Lago
Former U.S. President Donald Trump's Mar-A-Lago residence in Palm Beach, Florida is shown Aug. 9, 2002. On Aug. 8, FBI agents searched the home, recovering at least 15 boxes containing potentially classified material. GIORGIO VIERA/AFP via Getty Images

The unprecedented FBI-executed search warrant of former President Donald Trump's Mar-a-Lago estate in Florida resulted in the seizure of boxes of government documents, some labeled "top secret." According to federal statute 18 U.S. Code § 2071, anyone found in possession of top-secret files would not only be subject to fines and jail time but would also "be disqualified from holding any office under the United States."

So, what does that mean for Trump, who may be planning to run for president again in 2024? If the Justice Department convicts Trump of knowingly concealing sensitive government documents, wouldn't he receive a lifetime ban from the White House?

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Not so fast, say legal experts.

Under the U.S. Constitution, which lays out the qualifications for holding the nation's highest office, the only limitations are you must be a U.S. citizen and at least 35 years old. It's really hard to disqualify someone from running for president, even a convicted criminal.

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The Constitution Versus Federal Law

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:

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No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

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.

Trump Tower, banner, criminals work here
"Criminals Work Here" is written on the sidewalk as people display a "Trump 2024" banner outside of the Trump Tower building in New York City on Aug. 9, 2022, the day after the FBI entered his Mar-a-Lago home in Florida, removing potentially classified material.
ED JONES/AFP via Getty Images

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What About the 14th Amendment?

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:

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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.

"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.

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Yes, You Can Run for President From Prison

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.

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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.

Eugene Debs, Federal Penitentiary
Eugene Debs smiles as leaves the Federal Penitentiary in Atlanta, Georgia, on Christmas Day, 1921. Debs ran for president five times, including from the federal prison.
Library of Congress

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Running is One Thing, But What About Actually Winning and Serving?

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.

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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."

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