Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Wednesday December 21, 2022
Impeachments, Criminal Referrals, and Trading Cards
The criminal referral of Donald Trump to the Department of Justice by a House committee investigating the Jan. 6 attack is largely symbolic – the panel itself has no power to prosecute any individual.
Nonetheless, the recommendation that Trump be investigated for four potential crimes – obstructing an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement; and inciting, assisting or aiding or comforting an insurrection – raises the prospect of an indictment, or even a conviction, of the former president.
It also poses serious ethical questions, given that Trump has already announced a 2024 run for the presidency, especially in regards to the referral over his alleged inciting or assisting an insurrection. Indeed, a Department of Justice investigation over Trump’s activities during the insurrection is already under way.
But would an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office?
The short answer is no. Here’s why:
The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In Section 1, Clause 5 of Article II, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
These three requirements – natural-born citizenship, age and residency – are the only specifications set forth in the United States’ founding document.
But in case of insurrection, the Constitution includes no qualification regarding those conditions – with one significant exception. Section 3 of the 14th Amendment disqualifies any person from holding federal office “who, having previously taken an oath … 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.”
The reason why this matters is the Department of Justice is currently investigating Trump for his activities related to the Jan. 6 insurrection at the Capitol. And one of the four criminal referrals made by the Jan. 6 House committee was over Trump’s alleged role in inciting, assisting or aiding and comforting an insurrection.
Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves.
History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member Matthew Lyon was elected to Congress from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.
Eugene Debs, founder of the Socialist Party of America, ran for president in 1920 while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected.
And controversial politician and conspiracy theorist Lyndon Larouche also ran for president from a jail cell in 1992. (The Conversation)