Trump’s New York felony conviction can’t keep him from becoming president – CBS News

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Former President Trump’s New York felony conviction Thursday on 34 counts of falsifying business records related to a “hush money” payment to adult film star Stormy Daniels can’t stop him from becoming president if the voters put him back in office, legal scholars seem to agree. 

The Constitution imposes very few prerequisites for the presidency — a candidate must be at least 35 years of age, natural-born citizens and a U.S. resident for a minimum of 14 years. It says nothing about the impact of a felony conviction on a president’s ability to serve. 

“The short answer is yes, that there’s no constitutional bar,” said Corey Brettschneider, a lawyer and professor of political science at Brown University and author of “The Presidents and the People.” “The Constitution lays out some specific requirements of what’s required … but there’s nothing explicitly in the Constitution about being convicted of a crime as a disqualification.” 

“There’s a wide understanding that the qualifications listed in the Constitution are exclusive — that is, we can’t add to those qualifications,” said Derek Muller, an election law professor at the University of Notre Dame. He added, “Whether or not you’ve been convicted of a felony is immaterial for qualification purposes.” 

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Jessica Levinson, a constitutional law professor at Loyola University and a CBS News contributor, stated plainly: “The Constitution does not have any prohibition on serving as president if you’re a convicted felon.”

What about the 14th Amendment?

Some states have tried to disqualify Trump under the 14th Amendment’s insurrection clause in the wake of the Jan. 6, 2021, U.S. Capitol assault

Last December, the Colorado Supreme Court allowed Trump to be removed from the primary ballot over 14th Amendment concerns, due to his conduct surrounding Jan. 6. The amendment’s insurrection clause, the court found, bars insurrectionists who have previously taken an oath to support the Constitution from holding public office. 

But the U.S. Supreme Court reversed the ruling in March, finding that Trump had to be restored to the ballot because only Congress can enforce the insurrection clause. The high court’s ruling resolved challenges to Trump’s eligibility for office pursued by voters in several other states. 

“Absent a [new] statute that lays out that disqualification, it isn’t a bar,'” Brettschneider said. 

The Constitution gives Congress power to enact laws that would enforce the 3rd section of the 14th Amendment, Brettschneider explained. 

What if Trump is sentenced to prison? 

His sentence may not include prison time, but practically speaking, the implications of a sentence could be more complex if Trump becomes president. 

“You could be convicted of a felony and still not have jail time, right?” Muller said. “You could just have a fine; you could have probation.”

But there’s no law against running for president and winning an election while imprisoned — or from serving as president from prison. 

If he is sentenced to prison and wins the election, Trump’s attorneys might argue that sitting presidents can’t be imprisoned, just as Trump has argued that sitting presidents can’t be indicted. 

“You could say there’s something inherent in the office of president suggesting that states can’t incarcerate people serving in federal office or holding those federal officers,” Muller said. “There’s a little bit of precedent on this. In some old cases that go back 200 years, there were some disputes about states trying to have cases involving federal officers to remove them from office, and the Supreme Court has been clear that states have no authority to do this.”

What about the 25th Amendment?

The 25th Amendment could be a factor, both Muller and Levinson said. 

Section 3 of the 25th Amendment says that “whenever the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the president pro tempore of the Senate and the speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office, the vice president shall immediately assume the powers and duties of the office as acting president.”

It could be argued that a president who is behind bars is unable to carry out his office, Muller said. Whether a convicted president serving time from behind bars could have a Cabinet confirmed could largely depend on the outcome of Senate elections, said Brandon Johnson, assistant professor at the Nebraska College of Law, who wrote an essay in the Harvard Law Review last year on the topic of a “convict in chief.” And if Trump were able to confirm a Cabinet, those members would likely be loyal to him and unwilling to supplant him. 

The 25th Amendment also says “such other body as Congress may by law provide” could get the ball rolling to transmit presidential powers to the vice president, Johnson wrote. 

“The congressional route I think is pretty much going to be a nonstarter too, unless there’s a significant change in the 2024 election, because Congress would have to agree to establish this body to begin with to review the president’s fitness for office,” Johnson told CBS News. 

Johnson argues that the most natural reading of the 25th Amendment would seem to require the vice president’s cooperation. 

“But if the vice president’s acquiescence is required, then the creation of a congressional body to declare the president unable to carry out their duties could face the same obstacles,” Johnson wrote. 

Could Trump pardon himself from the New York conviction? 

Trump, should he become president, cannot pardon himself from the New York conviction because it’s a state conviction, rather than a federal one. Presidents are only empowered to pardon federal crimes. 

Trump faces three more criminal cases — a state indictment in Georgia over alleged attempts to overturn the election; a federal indictment in Florida over his handling of classified documents; and a federal indictment in Washington, D.C., over alleged efforts to overturn the presidential election. 

–Melissa Quinn contributed to this report.

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