Trump could still be elected president despite 2nd indictment, experts say

But practical reasons could make it a challenge, experts tell ABC News.

July 28, 2023, 1:37 PM

Former President Donald Trump, facing a possible third indictment, can still be elected president -- even if he is convicted -- experts told ABC News.

But there are practical reasons that could make it a challenge, the experts told ABC News after Trump was indicted by the Manhattan District Attorney Alvin Bragg in April. He pleaded not guilty to 34 felony counts of falsifying business records brought by Bragg.

On Thursday, Trump was indicted on additional federal charges stemming from special counsel Jack Smith's probe into his handling of classified information after leaving office, after already pleading not guilty to 37 counts in June. He also faces a third possible indictment resulting from an investigation into efforts to overturn the 2020 election.

Trump has denied all wrongdoing in each of the investigations, calling them partisan witch hunts intended to interfere with his 2024 presidential bid.

He's also said he will still run even if convicted.

In an interview with radio host John Fredericks on Friday, Trump was asked whether a conviction would put an end to his White House campaign.

"Not at all, there's nothing in the Constitution to say that it could and not at all," he said.

The former president had a similarly defiant tone back in March when he told the crowd at the Conservative Political Action Conference he would "absolutely" stay in the race for president even if he were to be criminally indicted. No charges had been brought against him at the time.

The U.S. Constitution does not list the absence of a criminal record as a qualification for the presidency. It says only that natural born citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president.

Constitutional experts also told ABC News that previous Supreme Court rulings hold that Congress cannot add qualifications to the office of the president. In addition, a state cannot prohibit indicted or convicted felons from running for federal office.

"Some people are surprised to learn that there's no constitutional bar on a felon running for president, but there's no such bar," said Kate Shaw, ABC News legal analyst and professor at Cardozo School of Law.

PHOTO: Former President Donald Trump attends the Conservative Political Action Conference (CPAC) in National Harbor, Maryland, Mar. 4, 2023.
Former President Donald Trump attends the Conservative Political Action Conference (CPAC) in National Harbor, Maryland, Mar. 4, 2023.
Evelyn Hockstein/Reuters

"Because of the 22nd Amendment, the individual can't have been twice elected president previously," Shaw said. "But there's nothing in the Constitution disqualifying individuals convicted of crimes from running for or serving as president."

Shaw said that while incarceration "would presumably make campaigning difficult if not impossible," the impediment would be a "practical problem, not a legal one."

James Sampler, a constitutional law professor at Hofstra University, told ABC News that the Constitution sets the minimum requirements, but leaves the rest up to the voters.

"It depends on the wisdom of the people to determine that an individual is not fit for office," Sampler said. "So the most fundamental obstacle that President Trump has in seeking office in 2024 is the obstacle that anyone has, but he has it in a different and more pronounced way -- which is proving to the voters that the individual deserves the office."

If Trump were to be indicted or convicted and prevented by law from traveling out of state, Sampler said, that would impose a practical limitation on his ability to travel the country and campaign -- but it wouldn't prohibit him from running.

Sampler also pointed out an irony in the electoral system, in which many states bar convicted felons from voting. According to the Sentencing Project advocacy group, 48 states have laws that ban people with felony convictions from voting.

"It is a sad day for a country that ostensibly values democratic participation and equality, that individuals who've been convicted of a felony can be prohibited from participating even as voters in our democracy, but a president convicted of a felony is still allowed," he said.

Jessica Levinson, a professor of election law at Loyola Law School, agreed.

"You could conceivably have a situation where the president of the United States is not disqualified from being president ... but can't vote for himself," Levinson told ABC News.

"The interesting thing about the qualifications like you have to be born here, you have to live here for a certain amount of time ... all of that is kind of getting at the idea that we want you to be loyal to our country," Levinson said. "But you could conceivably be convicted of crimes against our country, and still be able to serve as president."

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