We know many people have questions about the impact of the federal indictment against former President Donald Trump and about what could happen next.
Former President Trump faces 37 counts in a federal indictment connected to the alleged mishandling of classified documents.
We spoke with two legal experts about the case: Georgetown University Law Professor David Super and the Vice President of the Institute for Constitutional Government at the Heritage Foundation, John Malcolm.
Question: Does an indictment or a conviction disqualify a candidate from running for president or serving as president?
Answer: No
“Nope, neither one of them disqualifies a president from running or serving,” said Malcolm. “The qualifications to run for president are set out in the Constitution. They are both a floor and a ceiling. They can’t be added to.”
“The indictments do not play a role and indeed a conviction wouldn’t either,” said Super. “The Constitution has very limited criteria for who is eligible to be president. Mr. Trump meets those criteria, and he would continue to regardless of what happens in these cases.”
Question: If former President Trump is re-elected as president, could he pardon himself for a federal conviction? Answer: Debatable
“I think that’s an open question,” said Super. “It’s never been tested. This has never come up. Richard Nixon believed he couldn’t pardon himself and his successor President Ford did it instead. But we don’t know what would happen if Mr. Trump was convicted, resumed the presidency, and tried to pardon himself.”
“That is a matter about which a lot of legal scholars disagree,” said Malcolm. “I tend to think based on what I have read that the answer is that he could pardon himself… While he might be able to pardon himself for federal offenses, he could not pardon himself for violations of state crimes.”
Question: Could a sitting president serve time in prison? Answer: Not likely while serving as president
“If he were convicted before being sworn into office, I suppose he could be sentenced although I don’t think any judge would do that,” said Malcolm. “If he is not tried until after he is in office, then the answer is no… It’s been accepted for a long time that a sitting president cannot be charged with a crime.”
“In all likelihood, if he has not been convicted before he resumes office, the Justice Department would drop the case,” said Super. “They have a longstanding policy against prosecuting sitting presidents and I assume they would likely apply that… If he is convicted before becoming president, then in theory the sentencing judge could sentence him to jail time.”
Question: What are the key differences between the Trump federal indictment and the on-going Biden documents investigations?
Answer: It’s complicated
“First off, President Biden cooperated entirely with the recovery of documents,” said Super. “Second, it doesn’t appear that the documents President Biden had were nearly as sensitive and third there’s no indication that President Biden had the intent, whereas this indictment has extensive information that President Trump knew what he had,” said Super.
“I don’t know the nature of the documents that President Biden had in his possession,” said Malcolm. “One of the motivating factors behind a prosecutor is whether or not they tried to hide the documents. Certainly, there are allegations in the Trump indictment that President Trump and his co-defendant Waltine Nauta went out of their way to hide these documents so that they would not be turned over to a grand jury subpoena.”
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