The U.S. House of Representatives has formally issued criminal referrals to the Department of Justice regarding former President Donald Trump’s alleged involvement in the January 6th riots. The referrals include allegations of “inciting or assisting an insurrection, obstruction of an official proceeding of Congress, conspiracy to defraud the United States, and conspiracy to make a false statement.”
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The criminal referral made to the Justice Department leaves Attorney General Merrick Garland to decide whether to bring criminal charges against the embattled former president. If Garland does, in fact, choose to bring charges against Trump, it would mark the first time a former president has ever been charged criminally. But Trump isn’t just a former president; Trump is a presidential candidate. Would Trump proceed with his re-election campaign if he is facing criminal charges?
Trump Would remain Legally Eligible
Legally speaking, nothing about an indictment would prevent Donald Trump from running for president. The Constitution is clear on what makes a citizen eligible to serve as president: Candidates must be natural-born U.S. citizens who are at least 35 years old and have been U.S. residents for at least 14 years.
Trump is good to go. The Constitution doesn’t say anything about an indictment precluding a presidential run. Now, if Trump were to be convicted of insurrection, he would not be eligible to run for president. But we’re talking only about a simple indictment.
Trump wouldn’t even be the first person to run for president after an indictment. In 1920, Eugene V. Debs, a Socialist candidate for president, was incarcerated when he appeared on the ballot. Debs had been convicted under the Espionage Act, in response to his vocal opposition to The Great War.
Reasonably, the incoming president, Warren G. Harding, pardoned Debs. Another candidate ran for president from prison even more recently than Debs. In 1992, it was Lyndon LaRouche, who was serving time for mail fraud. LaRouche was not a contender for the presidency, however. Trump is.
Would Trump run if indicted?
Since Trump is eligible to run for president if indicted, the question becomes: would he? My feeling is that yes, yes, he would. First, withdrawing from the race could be construed as an implicit acknowledgment of wrongdoing. Trump isn’t exactly the type to acknowledge wrongdoing. If nothing else, Trump has been consistent in claiming both his victimhood and his guiltlessness. Trump will forge ahead with his campaign for the sake of emphasizing that he has done nothing wrong. Second, any sort of withdrawal from the race would be construed as a loss. And Trump hates to lose. He made that clear after 2020, when he made an epic fuss over an election that he lost by roughly 7 million votes. Trump won’t be withdrawing from the race as long as he is legally eligible to run.
Would an indictment hurt Trump politically?
Maybe. An indictment would confirm to Trump’s base that Trump is the victim of a near decade long witch-hunt. But it might signal to mainstream Republicans and independents, both of whom are starting to sour on Trump, that the real estate mogul’s political peak is behind him.
Anyway, all this speculation is moot until Garland actually brings charges. And there are no guarantees that he will.
Harrison Kass is the Senior Editor at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, he joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. He lives in Oregon and listens to Dokken.