Could Trump run for president from prison? Yes

The federal and state criminal investigations swirling with growing intensity around former President Trump prompt observers to wonder where the third-time candidate for the Oval Office will be next year at this time.

It might be in prison as those inquiries proceed, bolstered by revival in New York City of the “Stormy” Daniels hush-money issue dating back seven years. The various proceedings create an increasing likelihood that the ex-president  may be charged, perhaps convicted, and even incarcerated for one or more offenses, including possible violation  of the World War I era Federal Espionage Act for the stashing of classified documents at his Mar-a-Lago facility here in a Florida, action emulated in much less severe form and under markedly different circumstances by President Biden and former Vice President Pence.

These unfolding developments targeting the 45th president lead to consideration whether he could become president again and occupy the White House if any of those conditions occur and, perchance, he ends up in the Big House.

The answer is decidedly “yes,” he can still run, be elected, and even win under the latter — and 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 and historians, scholars, and others of all political and ideological ilks almost uniformly reaching that same conclusion.

But recognition that criminal charges, convictions, even imprisonment would not bar him from becoming president, even if he is behind bars rather than the fence surrounding the White House, has overlooked or minimized the nexus to Florida where more than a century ago an imprisoned candidate staged a vigorous campaign for the presidency with a credible 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 residence in this country. 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. More than three years ago, California enacted a law requiring that candidates appearing on a 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 2019 case entitled Patterson v. Padilla, 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 known as U.S. Term Limits, Inc. v. Thornton, 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.

Here in Florida, incidentally, state law requirements for elective legislative offices in Tallahassee are more limited  than in most states: 30 years of age, registered voter for seven years, 21 years old (even though the voting age is 18), resident in the state for two years and living in the district the candidate seeks to represent for the past two years.

Thus, charged with a crime, even a serious one, convicted, or imprisoned, cannot constitutionally disqualify the ex-president, or any other individual, for that matter, 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 January 6th 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,  whether in pinstripes or an orange jump suit.

Someone else  has tried to do it and, despite long odds, experienced a modest measure of success, including here in Florida.

Eugene Debs, a well-known Socialist and labor leader of the late 19^th century and early 20th century, ran for president in 1920 despite the dilemma of seeking the office while in federal prison in Atlanta.

A former Democrat, Debs had run for president four times previously under the Socialist banner. He reached his high water mark in 1920, when he obtained 913,000 votes, 3.4% of the electorate, which went overwhelmingly for Republican Warren G. Harding, an Ohio senator, by a landslide margin of 60% over the Democratic challenger, 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, who later was elected president four times, leading the country and the Greatest Generation through the Depression and World War II.

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 nearly 6% of the votes in a four-way race although his vote total that year was lower because the 1920 turnout was much greater as the first time women could vote across the country after enactment of the 19th Amendment.

Debs did it all in the 1920 election while in jail. He was imprisoned in 1918 due to 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 jail, although his sentence was commuted by the incoming president 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 1972 election.

Debs was a credible candidate in Florida, where the Democrat Cox, riding the wave of the old Democratic Solid  South, easily defeated Harding 2-to-1, 62%-31%, the reverse of the national vote. Debs actually did a bit better here in Florida  than he did around the rest of the country, gaining nearly 3.6% of the ballots, 5,187, out of the approximately 145,000 cast by the fewer than 1 million Floridians at the time, a puny figure compared to the nearly  11 million votes of the 21 million living in 2020, when Trump carried the state by a solid 3.4% over Joe Biden, increasing his margin of 2.2% four years earlier over Hillary Clinton.  Incidentally, a fourth party candidate in 1920, a Prohibitionist, almost matched Debs here in 1920, drawing 5,124 votes.

Debs, not surprisingly, did his  best in the larger communities of the state, which only had 913,000 residents at the time, fewer than 5% of the current number, and still predominantly rural. He attained close to 5% of the vote in Dade/Miami, twice that figure in  Broward County, and inexplicably nearly 20% of the votes in Flagler County north of Daytona and near St. Augustine. In Southwest Florida, he won 3.2% of the ballots, a grand total of 54, in sparsely populated Lee County. He recorded none in Collier County because there was no such unit at that time; it was not established until 1923. Similarly, no votes were cast for the Socialist in Charlotte County in the 1920 election because it was not formed until the following year.

While Debs had no realistic chance of obtaining Florida’s six electoral votes (now inflated to 29) or of being elected president, no one disputed his eligibility for the presidency. That acquiescence demonstrates that being charged, convicted, and even incarcerated for a crime would not bar ex-President Trump 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 alone arranging for Secret Service protection from adjoining cellblocks.

But the former president 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, which was notable in another respect: it was the first time women voted for president  after ratification of the 19th Amendment, and they cast their ballots, like their men counterparts, heavily in favor of the winner, Republican Harding.

Incidentally, the offense for which Debs was convicted and imprisoned during his presidential run? Violation of the Espionage Act!

Marshall H. Tanick of Naples is a constitutional law attorney.

This article originally appeared on Fort Myers News-Press: Could Trump run for president from prison? Yes