“Well, when the president does it, that means it’s not illegal.”
Richard Nixon (May 15, 1977)
As federal and state criminal investigations mount against former President Donald Trump, including the revival of the Stormy Daniel’s hush-money issue dating back seven years, there is increasing likelihood that the ex-president may be charged, perhaps convicted, and even incarcerated for one or more offenses. Those offenses include possible violation of the World War I era Federal Espionage Act for the stashing and maintaining of classified documents at his Mar-a-Lago facility, action emulated in much less severe form and under markedly different circumstances by President Joe Biden and former Vice President Mike Pence.
These unfolding developments zeroing in in the 45th president lead to questions about his current third run for the White House and whether he could become president again.
The answer is decidedly “yes,” he can still run, be elected, and even win under the latest circumstances. But he might have to exercise his duties from a different abode, a penitentiary.
The topic of the presidency and prison has been addressed in a number of forums recently, including this publication, reaching that same conclusion. E.g., Stephanie Lindquist,” “No, an indictment wouldn’t end a run for presidency” in the Nov. 28, 2022, edition of Minnesota Lawyer.
But recognition that criminal charges, convictions, even imprisonment would not bar him from the becoming president, even if he is behind bars rather than the fence surrounding the White House, has overlooked or minimized the nexus to Minnesota, where more than a century ago an imprisoned candidate staged a credible campaign for the presidency with a remarkable showing in this state.
The Constitution in Article II, section 1 sets three qualifications for president: 35 years of age, natural born citizen, and 14 years of residence here. The former president satisfies all of these requirements.
These conditions are exclusive. The courts have held that imposing additional requirements outside of those prescribed in the Constitution is impermissible. Three years ago, California enacted a law requiring that candidates appearing on presidential primary ballot have disclosed their tax returns. Then-President Trump had not, and still hasn’t, which would have eliminated him from being on the presidential ballot in that state. It may not have mattered in the long run because he lost that state resoundingly anyway.
However, the California Supreme Court in a case titled Patterson v. Padilla, 451 P.3d 1171 (Calif. 2019) ruled that the prohibition was unconstitutional and, therefore, the president was allowed on the ballot and won the primary, before being trounced by Joe Biden in the general election there.
The same rationale applied in a U. S. Supreme Court case 20 years earlier in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1999) in which the justices invalidated a state law establishing term limits for members of the House of Representatives. It reasoned that the constitutional requirements in Article I, § 2 are exclusive: 25 years of age, seven years citizenship, and an inhabitant of the state (but not necessarily the district) from which they are running. The requirements for the Senate in Article I, § 3 slightly differ: 30 years of age, nine years citizenship, and an inhabitant of the state.
In Minnesota, the state Constitution prescribes in Article V, § 2 the limited requirements for governor and lieutenant governor: citizenship, 25 years of age, and a state resident for the past year. As for members of both houses of the state Legislature, Article VI, § 6 provides eligibility for qualified voters, regardless of age, who have lived in the state for a year and have lived for six months in the district they seek to represent.
(One legislator, Tad Jude, at barely 21, was the youngest elected to the House in 1972, shortly after ratification of the 26th Amendment lowering the voting age to 18. He later had a six-year stint in the Senate, and then served as a 10th District judge from 2011 until he reached mandatory retirement age of 70, among other electoral victories and setbacks.)
A criminal charge, or even conviction or imprisonment, cannot constitutionally disqualify anyone from running for president and serving in that office, although it might become a little bit awkward trying to run the country from a jail cell.
The only way to prevent that would be a determination that he participated in or aided the Jan. 6 insurrection under Section 3 of the post-Civil War 14th Amendment aimed at barring former Confederate military and government officials from holding federal offices.
Otherwise, the ex-president is entitled to run and serve if elected.
Someone else has tried to do it and, despite long odds, experienced a measure of success, particularly here in Minnesota.
Eugene Debs, a well-known socialist and labor leader of the late 19th century and early 20th century, ran for president in 1920 despite serving a sentence in federal prison in Atlanta.
Debs was no fly-by-night candidate. A former Democrat, he had served a stint in the Indiana state Senate—long before his stint in prison. Like Trump, he was a multi-time White House aspirant, having run for president four times previously under the Socialist banner, and again in 1920, two more times total than the 45th president.
Debs reached his high-water mark in 1920, when he obtained nearly a million votes, 3.4% of the electorate, which went for Republican Warren G. Harding by a landslide margin of 60% over the Democratic candidate, James Cox, the governor of Ohio, the state Harding represented in the Senate, along with Cox’s vice presidential candidate, Franklin D. Roosevelt, no less.
The number of votes that Debs drew, the highest in his multiple attempts to reach the White House, nearly doubled the previous Socialist candidate. Debs actually had done better on a percentage basis eight years earlier, gaining 6% of the votes in a four-way race. But his 2012 vote total was lower because 1920 was the first presidential election in which women could vote across the country after enactment of the 19th Amendment, creating a surge in vote totals across the board.
Debs did it all in the 1920 election while in jail. He was imprisoned in 1918 for speaking out against America’s involvement in World War I, particularly for discouraging men from cooperating with the military draft. He was sentenced to a 10-year term in prison, although his sentence was commuted by Harding in 1921,five years before Debs died.
Another, less-credible candidate also ran for president from prison, right-winger Lyndon LaRouche, a perennial candidate who garnered only a handful of votes in the 1992 election.
Debs did remarkably well in Minnesota, where Harding captured an enormous 70% of the vote. Minnesota was a stronghold, giving the Socialist much of the momentum towards a surprisingly large vote total. This state gave him 56,000 votes or 7.6% of the total, enough to outpoll the hapless Democrat candidate, in six of Minnesota’s 67 counties. Two other minor party candidates also were on the ballot, a Prohibitionist and a Socialist Laborite, but they drew only a handful of cites.
Debs’ strength was concentrated in the Twin Cities and the northern part of the state, drawing his high figures in Lake County in the northeast, nearly a third of the voters, with respectable figures in excess of 13% in Hennepin, 9% in Ramsey, and 11% in Duluth and on the Iron Range, compared to minuscule numbers hovering in the 1-2% range in many areas in the southern part of the state.
While Debs had no realistic chance of being elected, no one disputed his eligibility for the presidency, demonstrating that being charged, convicted, and even incarcerated for a crime would not bar the erstwhile president from seeking office again, although there would be obvious infirmities in trying to run a quasi-oval office from a jail cell, along with Cabinet meetings, conferences with foreign dignitaries would be awkward, to say the least, let along arrange for Secret Service protection from adjoining cellblocks.
But Trump has broken the mold in many unexpected ways. Running for president from jail would seem highly unlikely, but not impossible. Hoping for a better electoral outcome, he could try to emulate Socialist Debs in the election of 1920.
Incidentally, the offense for which Debs was convicted and imprisoned during his presidential run? Violation of the Espionage Act!
Some Third-Party Candidates Votes Since Debs Ran from prison
- 1932: Socialist Norman Thomas, 2.2%
- 1948: Dixiecrat Strom Thurmond, 2.4%
- 1968: American Independent Party, George Wallace, 13.5%
- 1980: Independent John Anderson, 6.6%
- 1992: Reform Party/Independent Party Ross Perot, 19%
- 2000 – Independent Ralph Nader, 2%.
Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.
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