Can a candidate run for president while in jail?

All of the investigations swirling around former President Trump raise an interesting question: If Trump were to be convicted of one or more of the various charges against him and sentenced to jail time, could he still run for president of the United States? The answer is yes, it’s been done before. Could he serve if he won? Well …

There are four on-going, government-run investigations into Trump and his actions or business practices by: (1) the Manhattan district attorney, (2) the New York state attorney general, (3) the Fulton County, Ga., district attorney and (4) the U.S. Department of Justice. These are all very different investigations with little overlap. And Trump’s legal peril also varies widely.

The investigation with the most media attention (and apparently least credibility) is the one being conducted by Manhattan District Attorney Alvin Bragg, a Democrat. Most of the legal analyses consider Bragg’s case a huge stretch, contorting the statute of limitations and campaign finance rules. But the media are reveling in the daily question of the day: Will or won’t a Manhattan grand jury indict Trump?

New York Attorney General Letitia James’s (D) investigation may be a little stronger. The Trump Organization’s longtime CFO, Allen Weisselberg, recently pleaded guilty to 15 counts of tax evasion. He went from the big time to hard time — five months in jail. But whether the AG has enough evidence against Trump (it was Trump’s organization after all) to try to get an indictment and conviction is anybody’s guess.

The third investigation, by Fulton County District Attorney Fani T. Willis (D), centers around Trump’s actions soon after the 2020 election, especially a Jan. 2, 2021, call in which Trump asked Georgia Secretary of State Brad Raffensperger, a Republican, to find him votes. “I just want to find 11,780 votes,” Trump says on the call.

Willis convened a special grand jury, which heard testimony from 75 witnesses and recommended multiple indictments. The accusations are serious and supported by audio evidence. Willis is supposed to decide this spring whether she will charge Trump. A conviction would likely result in jail time.

Finally, there’s the Justice Department’s special counsel Jack Smith, who is tasked with investigating Trump’s handling of classified documents at his Mar-a-Lago estate and his actions on and before the Jan. 6 Capitol riot. Smith is reportedly ramping up his investigation, but these special counsel efforts can take months, or even years, to conclude.

It needs to be said that Trump categorically denies all the charges, and his staunchest supporters back his denials.

From what we know right now, if Trump were to be convicted of a crime (and that’s a big “if,” though still a distinct possibility), the Fulton County DA’s investigation may be the best chance to win a conviction, at least within the 19 months before the next presidential election.

Could Trump still run if convicted and jailed? Yes. As Sofia Andrade reported in Slate a few years ago, there have been at least three people who ran for the presidency while in prison. Eugene V. Debs was the 1920 candidate for the Socialist Party. He was in prison for protesting against U.S. involvement in World War I.

Middle-aged voters may recall Lyndon LaRouche’s 1992 presidential campaign — just one of many tries, often running as a Democrat. He was in jail at the time for income tax evasion.

And finally, Keith Judd ran in the West Virginia Democratic primary against incumbent President Barack Obama in 2012.

None of these three men made any difference running for the presidency from jail, Trump might.

One problem, which the Andrade article addresses, is how would someone in prison fulfill the constitutional duties of a president in the extremely unlikely event of winning? 

Andrade cites Cardozo Law Professor Kate Shaw, who suggests that Congress might have to impeach him (again), or perhaps 25th Amendment proceedings might have to be brought to remove him from office, or the president might ask a judge for a postponement of his sentence until he finished his term in office.

These are unusual issues, but then these are unusual times and Trump is an unusual candidate. With the various ongoing investigations, the possibility of a presidential candidate being escorted off to prison and then continuing his campaign from there isn’t out of the question. 

Voters sometimes opine that certain elected officials should be in jail. In this case, one might already be there.

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.