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Could he still run for president? Why would the adult-film star case move before any of the ones about protecting democracy? How could you possibly find an impartial jury?
What’s below are answers to some of the questions we’ve been getting – versions of these were emailed in by subscribers of the What Matters newsletter – about the possible indictment of former President Donald Trump.
He’s involved in four different criminal investigations by three different levels of government – the Manhattan district attorney; the Fulton County, Georgia, district attorney; and the Department of Justice.
These questions are mostly concerned with Manhattan DA Alvin Bragg’s potential indictment of Trump over a hush-money payment scheme, but many could apply to each investigation.
The most-asked question is also the easiest to answer.
Yes, absolutely.
“Nothing stops Trump from running while indicted, or even convicted,” the University of California, Los Angeles law professor Richard Hasen told me in an email.
The Constitution requires only three things of candidates. They must be:
- A natural born citizen.
- At least 35 years old.
- A resident of the US for at least 14 years.
As a political matter, it’s maybe more difficult for an indicted candidate, who could become a convicted criminal, to win votes. Trials don’t let candidates put their best foot forward. But it is not forbidden for them to run or be elected.
There are a few asterisks both in the Constitution and the 14th and 22nd Amendments, none of which currently apply to Trump in the cases thought to be closest to formal indictment.
Term limits. The 22nd Amendment forbids anyone who has twice been president (meaning twice been elected or served part of someone else’s term and then won his or her own) from running again. That doesn’t apply to Trump since he lost the 2020 election.
Impeachment. If a person is impeached by the House and convicted by the Senate of high crimes and misdemeanors, he or she is removed from office and disqualified from serving again. Trump, although twice impeached by the House during his presidency, was also twice acquitted by the Senate.
Disqualification. The 14th Amendment includes a “disqualification clause,” written specifically with an eye toward former Confederate soldiers.
It reads:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
Potential charges in New York City with regard to the hush-money payment to an adult-film star have nothing to do with rebellion or insurrection. Nor do potential federal charges with regard to classified documents.
Potential charges in Fulton County, Georgia, with regard to 2020 election meddling or at the federal level with regard to the January 6, 2021, insurrection could perhaps be construed by some as a form of insurrection. But that is an open question that would have to work its way through the courts. The 2024 election is fast approaching.
If he was convicted of a felony – reminder, he has not yet even been charged – in New York, Trump would be barred from voting in his adoptive home state of Florida, at least until he had served out a potential sentence.
First off, there’s no suggestion of any coordination between the Manhattan DA, the Department of Justice and the Fulton County DA.
These are all separate investigations on separate issues moving at their own pace.
The payment to the adult-film actress Stormy Daniels occurred years ago in 2016. Trump has argued the statute of limitations has run out. Lawyers could argue the clock stopped when Trump left New York to become president in 2017.
It’s also not clear how exactly a state crime (falsifying business records) can be paired with a federal election crime to create a state felony. There are some very deep legal dives into this, like this one from Just Security. We will have to see what, if anything, Bragg adds if he does bring an indictment.
Of the four known criminal investigations into Trump, falsifying business records with regard to the hush-money payment to an adult-film actress seems like the smallest of potatoes, especially since federal prosecutors decided not to charge him when he left office.
His finances, subject of a long-running investigation, seem like a bigger deal. But the Manhattan DA decided not to criminally charge Trump with regard to tax crimes. Trump has been sued by the New York attorney general in civil court based on some of that evidence.
Investigations in Georgia with regard to election meddling and by the Justice Department with regard to January 6 and his treatment of classified data also seem more consequential.
But these cases are being pursued by different entities at different paces in different governments – New York City; Fulton County, Georgia; and the federal government.
“I do think that the charges are much more serious against Trump related to the election,” Hasen said in his email. “But falsifying business records can also be a crime. (I’m more skeptical about combining that in a state court with a federal campaign finance violation.)”
One federal law enforcement source told CNN’s John Miller over the weekend that Trump’s Secret Service detail is actively engaged with authorities in New York City about how this arrest process would work if Trump is ultimately indicted.
It’s usually a routine process of fingerprinting, a mug shot and an arraignment. It would not likely be a public event and clearly his protective detail would move through the building with Trump.
New York does not release most mug shots after a 2019 law intended to cut down on online extortion.
As Trump is among the most divisive and now well-known Americans in history, it’s hard to believe there’s a big, impartial jury pool out there.
The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
Finding such a jury “won’t be easy given the intense passions on both sides that he engenders,” Hasen said.
A Quinnipiac University poll conducted in March asked for registered voters’ opinion of Trump. Just 2% said they hadn’t heard enough about him to say.
The New York State Unified Court System’s trial juror’s handbook explains the “voir dire” process by which jurors are selected. Those accepted by both the prosecution and defense as being free of “bias or personal knowledge that could hinder his or her ability to judge a case impartially” must take an oath to act fairly and impartially.
We’re getting way ahead of ourselves. He hasn’t been indicted, much less tried or convicted. Any indictment, even for a Class E felony in New York, would be for the kind of nonviolent offense that would not lead to jail time for any defendant.
“I don’t expect Trump to be put in jail if he is indicted for any of these charges,” Hasen said. “Jail time would only come if he were convicted and sentenced to jail time.”
The idea that Trump would ever see the inside of a jail cell still seems completely far-fetched. Hasen said the Secret Service would have to arrange for his protection in jail. The logistics of that are mind-boggling. Would agents be placed into cells on either side of him? Would they dress as inmates or guards?
Top officials accused of wrongdoing have historically found a way out of jail. Former President Richard Nixon got a preemptive pardon from his successor, Gerald Ford. Nixon’s previous vice president, Spiro Agnew, resigned after he was caught up in a corruption scandal. Agnew made a plea deal and avoided jail time. Aaron Burr, also a former vice president, narrowly escaped a treason conviction. But then he left the country.
That remains to be seen. Jonathan Wackrow, a former Secret Service agent and current global head of security for Teneo, said on CNN on Monday that agents are taking a back seat – to the New York Police Department and New York State court officers who are in charge of maintaining order and safety, and to the FBI, which looks for potential acts of violence by extremists.
The Secret Service, far from coordinating the event as they might normally, are “in a protective mode,” Wackrow said.
“They are viewing this as really an administrative movement where they have to protect Donald Trump from point A to point B, let him do his business before the court, and leave. They are not playing that active role that we typically see them in.”
The New York Times published a report based on anonymous sources close to Trump on Tuesday that suggested he is, either out of bravado or genuine delight, relishing the idea of having to endure a “perp walk” in New York City. The “perp walk,” by the way, is the public march of a perpetrator into a police office for processing.
“He has repeatedly tried to show that he is not experiencing shame or hiding in any way, and I think you’re going to see that,” the Times reporter and CNN political analyst Maggie Haberman said on the network on Tuesday night.
“I do think there’s a part of him that does view this as a political asset,” said Marc Short, the former chief of staff to former Vice President Mike Pence, during an appearance on CNN on Wednesday. “Because he can use it to paint the other, more serious legal jeopardy he faces either in Georgia or the Department of Justice, as they’re politically motivated.”
But Short argued voters will tire of the baggage Trump is carrying, particularly if he faces additional potential indictments in the federal and Georgia investigations.
