“Is it possible to bar convicted criminals from running for president without amending the Constitution?” – CM
Hi CM,
A general bar on people with criminal convictions running for president would likely require a constitutional amendment. Donald Trump is the first president with a conviction, but without such an amendment, he won’t necessarily be the last.
Article 2, Section 1 of the Constitution lists three eligibility requirements: The person must be a “natural born” citizen, at least 35 years old and a resident of the U.S. for at least 14 years. There’s no criminal background check like the ones they have for less important jobs. Eugene Debs famously ran for president from prison in 1920.
To be sure, a conviction for insurrection could bar an otherwise eligible candidate from office. That came up during the litigation over Trump’s eligibility in the 2024 election, when Colorado tried to keep him off the ballot due to the 14th Amendment’s insurrectionist ban. Trump wasn’t charged criminally with insurrection, but Justice Brett Kavanaugh observed during the Supreme Court hearing in Trump v. Anderson that a conviction for that crime could be disqualifying.
Certainly, Trump’s New York conviction for falsifying business records didn’t render him legally ineligible. He’s still appealing that conviction while in office, and his personal lawyers were in court this week pressing the latest step in their challenge. This week’s hearing was about whether they can move his case from state to federal court. But regardless of how that procedural step in the litigation turns out, his appeal ultimately could be decided by the Supreme Court either way, no matter whether it gets there through the state or federal appeals courts.
Thinking about Trump’s pending appeal in connection with the constitutional amendment issue, the fact that convictions can be overturned raises interesting questions about how such an amendment might be fashioned. Presumably, the bar should be lifted if the conviction is reversed on appeal. But what if, for example, an intermediate appeals court overturns the conviction, yet the prosecution seeks to reinstate it on appeal and that latest appeal is still pending at the time of the election? Something for the drafter of such an amendment to consider. Of course, convictions are overturned for all sorts of reasons, sometimes for reasons that don’t erase whatever moral opprobrium accompanied the initial charge. To illustrate the point by way of an extreme example, there would obviously be a political real-world difference between a candidate who’s exonerated of murder and another who gets evidence of a murder suppressed on appeal but clearly is still the killer. Unless and until the nation takes the heavy step of amending eligibility requirements, voters are still free to consider whatever factors they want to when evaluating a candidate for office, just as they were when Trump ran in his latest successful campaign. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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