The FBI apparently suspects Trump of taking official documents with him when he left the White House against the rules. If convicted of intentionally hiding or destroying government documents, he could face a fine or up to three years in prison. According to the law, he is no longer allowed to hold government positions.
But according to American constitutional lawyers, it is highly questionable whether that means Trump will no longer be allowed to participate in the presidential elections. They argue that the US Constitution only sets three requirements for candidates for the post of president: they must be American by birth, be at least 35 years old, and have lived in the US for at least 14 years.
The issue came up in 2015 when Hillary Clinton was accused of breaking the law as Secretary of State by using her private server for official emails. If convicted, would she be allowed to run in the presidential election the following year?
Yes, most constitutional lawyers concluded. The Supreme Court had already stated several times that only the three conditions of the constitution apply. According to the Court, neither Congress nor the US states can unilaterally add other grounds for exclusion.
Unwanted candidates
Some states have laws that bar people convicted of criminal offenses from official positions. But those restrictions only apply in those states themselves, not for federal functions and elections.
The rationale behind this is to prevent individual states from manipulating federal elections by enacting laws on their own that allow them to shoot “unwanted” candidates. According to the Court, this goes against the fundamental principle that the voters themselves determine who they want to be governed by.
Will Trump also be allowed to participate if he is found guilty of “inciting insurrection” for his role in the storming of the Capitol on January 6 last year? Under a 14th Amendment provision, government officials who have participated in or supported an insurrection or rebellion may no longer hold official positions.
The provision was introduced after the American Civil War to keep out former political and military figures from the rebellious southern states. But according to experts, that provision is unlikely to be an obstacle for Trump either.
Amnesty for those involved
Trump’s recent ruling is a North Carolina judge’s ruling on the case brought by a campaign group to remove Republican Congressman Madison Cawthorne from the electoral list. Cawthorne, one of Turmp’s most fanatical supporters, is said to have been guilty of ‘rebellion’ with his performance on January 6. But the judge ruled that Cawthorne can still run in the Congressional elections, because Congress had already declared an amnesty for the rebellious southerners in 1872. Whether the last word has been said is uncertain.
Even if you’re in prison, that shouldn’t be an obstacle to running in the election. A man imprisoned in Alabama even ran in the 1920 presidential election as “Prisoner 9653.”
Paradoxically, in many states, convicts are not allowed to vote in federal elections until they have served their sentences, while they are allowed to run for office. For Trump, that would mean that under Florida’s electoral laws, he cannot vote for himself in the presidential election if he is found guilty and has not served his full sentence at the time of the election.