WASHINGTON — After the indictment of former President Donald Trump, numerous questions surround the issue— where things may be headed and if there is any precedent for what is to come.
A legal expert answered many questions surrounding the presidency and legal issues.
Question: Has a sitting president, or former president, ever been indicted for a crime?
Answer: No. In the more than 200-year history of the United States, no president has ever been indicted for an alleged crime.
Question: Has a sitting president, or former president, ever been arrested?
Answer: Yes. In 1872, Ulysses S. Grant, who loved to race horses, was riding through Washington, DC, when he was stopped by a police officer named William West. Grant was let off with a warning and promised not to do it again. The next day, Grant was again stopped by Officer West for riding through the area too fast. This time, West arrested Grant and took the sitting president to the police station, where Grant paid a fine. The arrest wasn’t controversial at the time and Grant told West he shouldn’t feel bad about it.
Question: So, no president has ever been indicted, but what about a vice president?
Answer: Yes. In February 1807, U.S. authorities arrested former Vice President Aaron Burr on a charge of treason. He was acquitted later that year.
In October 1973, Vice President Spiro Agnew was under investigation for political corruption that dated back to his time as governor of Maryland. After the solicitor general said a sitting vice president could be indicted, Agnew would resign the vice presidency on October 10. He appeared in court the same day and pleaded nolo contendere to a single charge dealing with his income taxes. He paid a fine and was given three years of probation.
Question: Would an indictment, and possible arrest, mean a former president couldn’t run for president?
Answer: No, but with some caveats. The only qualifications to be president are laid out in the Constitution: must be a natural-born U.S. citizen, at least 35 years old, and be a resident of the U.S. for at least 14 years.
For a state crime, there is nothing in the law that would prohibit a person under indictment or even a convicted criminal from running for president.
Some states have tried to put prohibitions into law. California tried in 2019, but the law, which tried to bar anyone who refused to release their tax returns ineligible for the presidency, was ruled unconstitutional by the California Supreme Court. Arkansas also lost a Supreme Court case that held a state can’t prohibit people from running for federal office.
Things could get trickier if a person is brought up under a federal charge. For example, if a former president or vice president was accused of violating 18 U.S. Code Sec. 2071, then that person “shall forfeit his office and be disqualified from holding any office under the United States.”
The courts would likely be called upon to decide the question surrounding presidential eligibility if a case got to that point.
Question: Has anyone under indictment or who is a convicted criminal ever run for president?
Answer: Yes! In 1920, Eugene V. Debs ran for president while in prison for charges related to protesting World War I. Debs went on to win 3.5% of the vote in the 1920 presidential election.
More recently, Lyndon LaRouche ran for president multiple times in the 1990s and 2000s after being jailed for defrauding the IRS.
Finally, currently incarcerated Joe Exotic has declared a presidential bid for the 2024 election.
Question: If a former president was convicted, would that make them ineligible to run for the presidency or other federal offices?
Answer: Maybe. If a person was convicted of violating certain federal laws, they could be barred from seeking federal office, such as the statute mentioned above. If a person violated the 14th Amendment’s clause against engaging in insurrection or rebellion against the government “or given aid or comfort to the enemies thereof.” However, a two-third vote by Congress could remove that issue.
The primary way that a person is barred from seeking federal office is the use of impeachment. However, only three men, all federal judges, have ever been barred from holding federal office again after they were removed from office.
The U.S. House tried to bar a member from taking part in the 90th Congress in 1967. The House voted 307-116 to exclude Representative Adam Clayton Powell, Jr. However, the Supreme Court later ruled the House acted unconstitutionally by excluding him.
Question: If a former president was convicted of a state crime, could that person be pardoned?
Answer: A sitting president has large leeway when it comes to pardons/clemency. However, that power only applies to federal crimes.
According to the Department of Justice:
"The President’s authority to grant clemency is limited to federal offenses and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court. An offense that violates a state law is not an offense against the United States."
Question: Does that mean a pardon or clemency is completely out of the question?
Answer: No, a person convicted of a state crime could appeal to that state’s governor or a state board of paroles and/or pardons if the state government has created such a board.
What will matter more than anything for former President Donald Trump, or any future former president, will be the crime they are charged with and whether it's at the state or federal level. But, in the end, there's nothing in the Constitution or case law that says a person sitting in jail, provided they meet the Constitutional qualifications, could not serve as President of the United States.
Sources: U.S. Department of Justice, U.S. House of Representatives, FBI Archives, Cornell Law School, National Archives, U.S. Supreme Court, Smithsonian Magazine, Politifact