Can Donald Trump still be elected president despite indictment?

Former President Donald Trump appears to be the focus of a grand jury investigation by Manhattan District Attorney Alvin Bragg into a 2016 hush payment made by Trump’s attorney, Michael Cohen, to a porn star.

The inquiry entered a new phase in recent weeks and now Mr Bragg’s office has contacted the President’s attorneys to offer an opportunity for voluntary testimony, a sign several sources close to the inquiry said The New York Times means that an indictment or indictments are likely to be in the works. Mr Trump himself predicted on March 18 that he would be arrested the following week.


Should Mr Trump actually be charged with a crime, it would be the first time an investigation into his inner circle (of which there have been several, the most famous leading to multiple indictments against individuals linked to the 2016 campaign) would actually draw blood from the President self.

The Justice Department’s protocol against indicting an incumbent president appeared to chill any ability for the agency to do so during his tenure, but the president’s loss in 2020 opened the door to prosecution in both the 2016 Stormy Daniels affair and for an investigation into the January 6 attack and Mr Trump’s efforts to overthrow the election.

This second investigation continues, with the clear possibility of potential charges for both Mr Trump and members of his legal team. And alongside the Bragg investigation, what happens to the 2024 race and Donald Trump’s ability to participate if he is prosecuted?

The short answer is, not much. There are no restrictions in the US Constitution preventing anyone charged with, convicted of, or serving a felony from running for or winning the presidency. Even if he were tried and convicted in one of the so-called “quick trials,” he has repeatedly hailed the Chinese government for acting on drug-related cases, Mr. Trump could still conduct his entire presidential campaign from a prison cell.

Far less clear is what would happen if he won in this scenario. Just as there are no restrictions in the Constitution on a person charged with running for office, there is no explanation of what should happen if he wins. There is nothing in the document that would automatically grant Mr. Trump a pardon from prison time, other than the likelihood that federal charges would be pending if they were still being processed by the time Mr. Trump took office for the second time dropped due to the Justice Department’s refusal to prosecute an incumbent President.

State-level charges such as those being pursued by Mr. Bragg are far more difficult and would be outside of Mr. Trump’s powers of pardon if they resulted in a conviction.

Should there be a conviction on state charges alongside a Trump election victory, it would likely lead to a massive legal battle to determine if there was any way for the former president to wriggle out of service. If Mr. Trump could not avoid this outcome, it would almost certainly lead to his impeachment or removal through the 25th Amendment, which allows the Cabinet to remove a president who is unable to perform his duties. There are many duties and insignia of the Presidency that would be simply impossible to perform or perform from a prison cell, classified information screening, to name but one.

A possible sentencing of Mr Trump is still a long way off and little more than a distant possibility. But the talks he began running for the presidency despite multiple criminal investigations have already brought bits of theoretical US constitutional law to a much more real place than many pundits ever anticipated. Can Donald Trump still be elected president despite indictment?

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