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PoliticsWorldTrump can run for president again, but will he become one?

Trump can run for president again, but will he become one?

‘Can Trump’ and ‘will Trump’ are different questions, the first involving provisions of the US constitution and the second not only legalities but also politics

Donald Trump announced last week he would run for president in 2024, complaining about what he said was his “persecution” and his family’s. He avoided mentioning his legal hassles though.

This comes a week after a below-expectation Republican midterm performance that many blamed on him. The former president faces multiple criminal investigations for a range of issues including his handling of classified documents and allegations of falsifying the value of New York properties. There is also a US Justice Department investigation into the 6 January storming of the Capitol, which American media is obsessed with.

Following the announcement, some are speculating that Trump may be hoping to become a presidential candidate, which may shield him from prosecution. The question, therefore, is whether an indictment (or even a felony conviction) can prevent a presidential candidate from running or serving in office. The answer is negative. The reasons follow.

The Constitution of the United States demands certain qualifications to hold the office of president. Section 1, Clause 5 of Article II states: “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.”

Trump is a natural-born citizen, is of the right age and is a resident of the US. The constitution is silent on a candidate fighting lawsuits.

Further, the Supreme Court of the US ruled in their 1969 Powell versus McCormack ruling that neither the US Congress nor a state can alter or add supplements to the constitutionally prescribed qualifications to hold federal office. This case was fought when the House of Representatives adopted a resolution to debar pastor and New York politician Adam Clayton Powell, Jr, from taking his seat in the 90th Congress.

Powell was of the right age and citizenship and fulfilled the residency requirements for House members set forth in the constitution. But the House had found that Powell had diverted Congressional funds and made false reports about certain currency transactions. But the Supreme Court invalidated the House resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. In the majority opinion, the court stated: “Congress has no power to alter the qualifications in the text of the Constitution.”

This legal precedent works in favour of Trump’s candidacy. This is regardless of not only his indictment but even his conviction.

There is a glitch, but Trump can brush it aside

However, Section 3 of the 14th Amendment disqualifies such a person from holding federal office “who, having previously taken an oath … 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.” And the Department of Justice is currently probing Trump’s activities related to the 6 January Capitol riot.

Citing the 14th Amendment, the US Congress is authorised to make laws to enforce its provisions. In February last year, a Democratic Congressman did propose House Bill 1405, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States”.

Yet, even Trump’s proven participation “in insurrection or rebellion” cannot stop him. He may argue that he is exempt from Section 3, as the 14th Amendment does not specifically refer to the presidency and it is not “self-executing” (it calls for subsequent legislation for enforcement). Trump can also cite the precedent that Congress had enacted an Amnesty Act in 1872 that lifted the ban on office holding for officials from many former confederate states.

Further, Trump may say that his activities on and before 6 January did not amount to an “insurrection” as it is understood by the phraseology of the amendment. There are hardly judicial precedents that interpret Section 3. As such, its application in modern times remains ambiguous. Therefore, even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again.

What happens if he is convicted and jailed?

Even then, there is no problem. A presidential candidate cannot be stopped from running his or her campaign. It’s only that as a felon, he or she might not be able to vote for himself/herself.

There is a history of candidacies for federal office running and of their election too – while they were in prison. In 1798, 79 years before the 14th Amendment, House member Matthew Lyon was elected to the US Congress from jail, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.

The founder of the Socialist Party of America, Eugene Debs ran for president in 1920 while jailed for sedition. Although he lost the election, he won 9,13,693 votes. Debs had promised to pardon himself in the event of getting elected.

Controversial politician and conspiracy theorist Lyndon Larouche ran for president from a jail cell too. That was in 1992.

But can a prison cell be the Oval Office?

The US constitution does offer provisions that could be used to disqualify a president who has been indicted or jailed. The 25th Amendment permits the vice president and a majority of the cabinet to suspend the president from office if they find that the president cannot fulfil his duties. The amendment says that the removal process may be initiated “if the President is unable to discharge the powers and duties of his office”.

This was proposed and ratified to address the fate of a president who is incapacitated by health issues. But does incarceration amount to incapacitation? Not quite, say experts in American law.

A jailed president may also challenge the conclusion that he or she was incapable of discharging the duties because he or she was in jail. Of course, the US Congress may decide to settle the dispute by suspending the president from office by a two-thirds vote.

It is unclear whether the constitution says that a president may not effectively execute the duties of office from prison, as there is no requirement on the part of the executive to appear in a specific location. The jail cell could, theoretically, serve as the Oval Office.

Say, if Trump were convicted, but he was elected as president in 2024, the US Congress might still impeach him under Article II, Section 4 of the constitution which provides for impeachment for “treason, bribery, and high crimes and misdemeanours”. But the language may not apply to Trump for indictments or convictions arising from his previous term or business dealings outside office. That would again be a question for Congress to decide.

The precise implication of “high crimes and misdemeanours” is vague and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. While impeachment would remain an option, it might be unlikely if Republicans were to maintain their majority in the House in 2024 and 2026.

Can Trump annul all legal proceedings against him as Debs had tried?

If the constitution cannot stop Trump from running for president again, it cannot make Trump stop the legal processes either. His act of running for president does not create any formal or legal obstacle for criminal investigators who are examining potential wrongdoing by him or his allies.

What about the allegation that the investigations are politically motivated attacks on President Joe Biden’s 2024 rival?

Trump has argued that his status as president gave him legal immunity, but he still does not get any additional protection by the dint of announcing his presidential campaign for 2024. “The United States Supreme Court actually approved of civil litigation against President Clinton in the ’90s, while he was sitting as president. So surely, merely being a candidate for office doesn’t prevent these kinds of cases from going forward,” Muller, an election professor at the University of Iowa College of Law, said.

Further, the Justice Department has debated whether to appoint a special counsel to insulate the department from the allegation. Attorney General Merrick Garland says that the department does “not shy away from cases that are controversial or sensitive or political”. But the DoJ has not made this decision yet.

However, the department may bring charges if it is fully confident that it could secure a conviction, former prosecutors say. Paul Rosenzweig, a former official at the US Department of Homeland Security who also worked on the Whitewater investigation into President Bill Clinton, said, “So it can’t wait… to bring an indictment until January 2024.”

But Trump’s announcement does create a more complicated political and practical environment for investigators to navigate. “There’s no executive privilege or anything that attaches right now as a candidate,” Muller said.

Trump can, however, make matters drag. If he can cause a delay long enough to not let disputes get resolved if and when he is reelected, he can then try to use the presidency as a shield.

Now, does that mean Trump will be president again if American voters wish to switch back from the current Democrat rule to Republican rule?

The theoretical question has been explained above, but the practical question is different. This is the part where legal arguments will not help. This has a financial and a political part.

Financially, the Republican National Committee will not foot the bill for the lawyers representing Trump in New York investigations into his business practices. “We cannot pay legal bills for any candidate that’s announced,” RNC Chairwoman Ronna McDaniel said on television earlier this month. She said the committee was, however, willing to finance his legal defence in the civil fraud case brought by New York Attorney General Letitia James because the RNC sees that lawsuit as “a politically motivated investigation” that started when he was president.

But McDaniel is considerate towards Trump too. While he has used the money that he had raised post-presidency for his leadership PAC – a fundraising organ usually used to support other candidates – to pay for firms representing him in the James case and other matters, they say he helps the party earn even more. “We cannot do in-kind contributions to any candidate,” McDaniel said at the time. “Right now, he’s the former president who’s being attacked from every which way with lawsuits. And he’s certainly raised more into the RNC than we have spent on these bills.”

Politically speaking, would Republican voters let Trump win the primaries? “I will back whoever the Republicans choose to run in 2024. That’s a given. But I want them to go through the primaries and I hope it’s not Trump. He has too much baggage now. We need new blood because it’s obvious that he can’t get to business now without doing things to make people angry. His behaviour hasn’t changed,” Terri Burl, an early member of ‘Women for Trump’ said last week.

But the prospect of a contest some people were gossipping about, one between Trump and Florida Ron DeSantis for the Republican nomination, is now dim as DeSantis has ruled himself out of the competition even in the face of provocation from the former president who said the proposed rival was a nobody who managed to earn a little name only because of the support he had extended to Trump in 2018.

Republican county chairs and activists say support for the former president is waning as a result of his continued peddling of election conspiracy theories, the probes into his enterprises and political actions and his attacks on DeSantis. They are apprehensive of Trump becoming more ‘divisive’ than he was two years ago when he lost the popular vote to Biden by more than 7 million votes.

But local Republicans also say that Trump retains a substantial and absolutely loyal following within the party that will fight to the last and could still decide the primaries.

While Iowa’s Neil Shaffer, chair of the Howard county Republican party, wanted DeSantis who is not interested, he still dismisses the kind of support Trump has been getting of late. “People that came to the Trump bandwagon, there were a lot of independents, a lot of first-time voters, a lot of everyday people. They did overlook some of the issues. Since then, a lot of the people that I’ve talked to that were first-time Republican voters would have a very difficult time being as enthusiastic for Trump this time around just because of how he didn’t gracefully take an exit. He lost a lot of political capital between November 2020 and January 6, and unnecessarily. All self-inflicted,” he said.

Then, DeSantis not contesting is not making decent Republicans forget Trump’s act of distorting his name as “Ron DeSanctimonious”. Viewing the dull performance of the GOP in the midterm election, many supporters question Trump’s judgment in backing weak candidates only because they were loyal to his claim that the last presidential election was stolen.

There is but one thing going in favour of Trump among the Republicans. This is a party that gets excited about radical politics. Even if DeSantis were to change his decision, they find him too much of a career politician while Trump is dramatic.

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