Not since Eugene V. Debs campaigned from a prison cell more than a century ago has the United States experienced what might now happen: a prominent candidate with a felony conviction running for president. And never before has that candidate been someone with a real chance of winning.
Former President Donald J. Trump has been charged with dozens of felonies across four cases: two federal, one in New York and another in Georgia. The first of those to go to trial will be the sex scandal cover-up in New York, where jury selection is scheduled to begin on Monday.
For now, he faces no significant campaign restrictions, and in polls of Republican voters and the broader electorate, his strength is undiminished. But some of the cases are proceeding at a pace that could bring verdicts before the election — and the Constitution and American law have clear answers for only some of the questions that will arise if he is convicted.
Others would bring the country into truly uncharted territory, with huge decisions resting in the hands of federal judges.
Here is what we know, and what we don’t know.
Can Trump run if he is convicted?
This is the simplest question of the bunch. The answer is yes.
The Constitution sets very few eligibility requirements for presidents. They must be at least 35 years old, be “natural born” citizens and have lived in the United States for at least 14 years.
There are no limitations based on character or criminal record. While some states prohibit felons from running for state and local office, these laws do not apply to federal offices.
The Republican and Democratic Parties have guaranteed spots on general-election ballots in every state, and the parties tell election officials whose name to put in their spot. States could, in theory, try to keep Mr. Trump off the ballot by passing legislation requiring a clean criminal record, but this would be on legally shaky ground.
“We let states set the time, place and manner” of elections, said Jessica Levinson, a professor at Loyola Law School who specializes in election law, “but I think the best reading of our Constitution is you don’t let the state add new substantive requirements.”
While that view is not universal among legal experts, it prevailed in court in 2019, after California passed a law requiring candidates to release their tax returns in order to appear on primary ballots. A federal district judge blocked the law from taking effect, saying it was most likely unconstitutional. The California Supreme Court also unanimously blocked it as a violation of the state constitution, and the case never reached the U.S. Supreme Court.
What about the 14th Amendment?
The Supreme Court ruled in March that states could not keep Mr. Trump off their ballots under Section 3 of the 14th Amendment, which disqualifies people who “engaged in insurrection or rebellion” after taking an oath to support the Constitution.
Numerous lawsuits had argued that Mr. Trump’s actions before and on Jan. 6, 2021, met this bar. In December, the Colorado Supreme Court found him ineligible, and Maine’s secretary of state did the same. But the Supreme Court — led by a conservative supermajority, with three justices appointed by Mr. Trump himself — concluded that only Congress had the power to enforce Section 3 against candidates for federal office.
Congress is not going to do that with Republicans in control of the House. And the 14th Amendment is separate from criminal cases, meaning convictions would not disqualify Mr. Trump either.
Congress can designate either groups of people to whom Section 3 applies (such as people who fought for the Confederacy) or specific crimes that, upon conviction, would trigger disqualification, said Anthony Michael Kreis, an assistant professor of law at Georgia State University. But none of the crimes Mr. Trump is charged with carry that automatic penalty.
“Whether or not Trump is tried, convicted, acquitted, that’s a separate question from whether or not he’s disqualified,” said Richard L. Hasen, an election law expert at the University of California, Los Angeles.
One of the charges in the federal case related to Mr. Trump’s efforts to overturn the 2020 election — conspiracy to violate civil rights — once carried a disqualification penalty, Mr. Kreis said, but Congress removed it decades ago.
Could the party replace him on the ticket?
Now that Mr. Trump has secured a majority of delegates to the Republican convention, the party has no mechanism to nominate somebody else. Under the party’s official convention rules, if a delegate tries to support someone other than the person the primary results bound them to, “such support shall not be recognized.”
Nor have top Republicans shown any interest in another nominee.
If he were forced to withdraw from the race after the convention, party leaders could replace him then; they considered doing so in 2016 after the release of the “Access Hollywood” tape in which he bragged about grabbing women’s genitals. But this is highly unlikely given how vigorously the party has circled the wagons around him.
Could he vote if convicted?
Probably not.
Mr. Trump is registered to vote in Florida, and he would be disenfranchised there if convicted of a felony.
Most felons in Florida regain voting rights after completing their full sentence, including parole or probation, and paying all fines and fees. But it is highly unlikely that Mr. Trump, if convicted, would have time to complete his sentence before Election Day.
He could also petition for clemency, which would require the approval of the governor — Ron DeSantis, who ran against Mr. Trump in the Republican primary — and two Florida cabinet members. Chris Taylor, the director of external affairs for the Florida Commission on Offender Review, confirmed that a Florida resident convicted of a felony could apply to have their voting rights restored through that process even if their conviction happened outside Florida.
Since Mr. Trump also has a residence in New York, he could switch his voter registration there to take advantage of its more permissive approach: Felons in New York can vote while on parole or probation. But, as in Florida and almost every other state, they are still disenfranchised while in prison.
So if Mr. Trump is imprisoned, he could be in the extraordinary position of being deemed fit to be voted for, but unfit to vote.
What happens if Trump is elected from prison?
No one knows.
“We’re so far removed from anything that’s ever happened,” said Erwin Chemerinsky, a constitutional law expert at the University of California, Berkeley. “It’s just guessing.”
Legally, Mr. Trump would remain eligible to be president even if he were imprisoned. The Constitution says nothing to the contrary. “I don’t think that the framers ever thought we were going to be in this situation,” Professor Levinson said.
In practice, the election of an incarcerated president would create a legal crisis that would almost certainly need to be resolved by the courts.
In theory, Mr. Trump could be stripped of his authority under the 25th Amendment, which provides a process to transfer authority to the vice president if the president is “unable to discharge the powers and duties of his office.” But that would require the vice president and a majority of the cabinet to declare Mr. Trump unable to fulfill his duties, a remote prospect given that these would be loyalists appointed by Mr. Trump himself.
More likely, Mr. Trump could sue to be released on the basis that his imprisonment was preventing him from fulfilling his constitutional obligations as president. Such a case would probably focus on the separation of powers, with Mr. Trump’s lawyers arguing that keeping a duly elected president in prison would be an infringement by the judicial branch on the operations of the executive branch.
On the federal charges only, he could also try to pardon himself — or to commute his sentence, leaving his conviction in place but ending his imprisonment. Either action would be an extraordinary assertion of presidential power, and the Supreme Court would be the final arbiter of whether a “self pardon” was constitutional.
Or President Biden, on his way out the door, could pardon Mr. Trump on the basis that “the people have spoken and I need to pardon him so he can govern,” Professor Chemerinsky said.
But that wouldn’t apply to the New York or Georgia cases, because the president does not have pardon power for state charges.
What if he’s elected with a case still in progress?
Again, no one knows, particularly when it comes to the New York and Georgia cases.
In the two federal cases, a likely outcome would be that a Trump-appointed attorney general would withdraw the charges.
The Justice Department does not indict sitting presidents, a policy outlined in a 1973 memo, during the Nixon era. It has never had reason to develop a policy on what to do with an incoming president who has already been indicted. But the rationale for not indicting sitting presidents — that it would interfere with their ability to perform their duties — applies just as well in this hypothetical scenario.
“The reasons why we wouldn’t want to indict a sitting president are the reasons we wouldn’t want to prosecute a sitting president,” said Professor Chemerinsky, who has disagreed with the department’s reasoning. “My guess is, if the Trump prosecution were still ongoing in some way and Trump were elected, the Justice Department — which would be the Trump Justice Department — would say, ‘We’re following the 1973 memo.’”
Like so much else here, this would be legally untested, and it is impossible to say what the Supreme Court would do if the question reached it.
In its Clinton v. Jones ruling in 1997, the court allowed a lawsuit against President Bill Clinton to proceed. But that case was civil, not criminal, and it was filed by a private citizen, not by the government itself.
Charlie Savage contributed reporting.
