The case is much more serious than the first two. Last March, Donald Trump was charged with buying the silence of a former porn actress with whom he had had a relationship during the 2016 presidential campaign. Then, in June, the former president was a second times for illegally retaining classified documents and conspiring to thwart government efforts to retrieve them. This time, Donald Trump was indicted on Tuesday for having this time tried to stay in power after his defeat in the 2020 presidential election.
Despite these legal setbacks, the former president enjoys great popularity in his electorate and remains the big favorite in the Republican primary. According to a first poll commissioned by the New York Times and published on Monday before the new indictment, Donald Trump currently collects 54% of the voting intentions, far ahead of his main rival Ron DeSantis (17%).
His heavy judicial news should not prevent him from running in the presidential election of 2024, even this recent indictment which accuses him, unprecedented for a former American president, of having endangered the very heart of the system. American Constitution.
Indeed, an indictment in the United States, as in France, does not legally prevent a presidential candidate from continuing his campaign or being elected. And even if the trial opens before the presidential election in November 2024 and the judges render a decision in favor of guilt, Donald Trump could be elected despite everything.
A convicted person may be elected and exercise the functions of president, unless otherwise specified. And in this case, according to the indictment of this Tuesday, none of the four charges against Donald Trump mentions ineligibility.
“There aren’t many constitutional requirements to run for president,” New York lawyer Anna Cominsky told the Washington Post after Donald Trump was first charged in the classified documents case. The Constitution provides three conditions for running for the presidency of the United States: to be born American, to have resided at least 14 years in the country, and to be at least 35 years old.
There are, however, a few restrictions including participation “in an insurrection or rebellion,” according to Section 3 of the 14th Amendment, which precludes holding “civilian and military office in the government of the United States.” This provision, inherited from legislation passed after the Civil War to prevent former Confederate officials from being elected, was only rarely invoked, mainly during the short period after the American Civil War and until the amnesty law in 1872.
Despite this amendment, convicted political leaders have sometimes been able to run for the highest office. An emblematic case is that of the socialist leader Eugène Debs who campaigned in the 1920 election from prison. He had previously campaigned against the entry into the war of the United States during the First World War, and had been sentenced as such, under the Espionage Act, to 10 years in prison, in addition to being stripped of his electoral rights without being prohibited from standing for election.
However, he had not been convicted of “seditious conspiracy or incitement to insurrection”, an essential element to trigger the disqualification from any elective federal office according to the 14th amendment. Donald Trump, meanwhile, suffers only three counts: conspiracy to defraud the United States, conspiracy to obstruct official process, and conspiracy to interfere with the rights of voters to see their votes counted.
“In reality, we are in a total unprecedented”, estimated for his part Corentin Sellin, associate history and specialist in the United States with our colleagues from RFI, joining the opinion of a majority of observers. “We have no reference at all in contemporary times and it is unclear whether [this 14th Amendment clause] could be enforced. All this is very tenuous, has never been tested, never been judged by the courts either”. With the exception of this specific point of the Constitution, very debatable in the specific case of the favorite in the Republican primary, Donald Trump therefore does not risk electoral disqualification.
