11 June 2024

Should a Convicted Felon be the Next President of the US?

American Citizens are in a Bind

On Thursday, May 30th, 2024, former President Trump was convicted in New York City by a jury of seven men and five women of thirty-four criminal charges consisting of falsifying business records with the intend to deceive. Regardless of his tirade against the American legal system, he stands as a convicted felon unless he could prove otherwise on appeal. This is an unprecedented conviction. Mr. Trump is the first American president who has been criminally convicted. Lamentably, the republican establishment continues to stand by the former president and to question the legality of this trial thereby challenging the integrity of the rule of law.

Whether one favors or opposes former President Trump, it is evident that, contrary to what he has argued, this trial demonstrated that no citizen of the US is above the law. According to the former president and his sympathizers, the American legal system is “rigged.”  They allege that President Biden and the leadership of the democratic party have waged “lawfare,” namely weaponizing the law to gain political advantage over the former president in the forthcoming presidential election on November 5th. For reasonable and fair-minded people, however, this trial represents the success of the rule of law in the US. In spite of members of both political parties frequently trying to influence the American legal system to gain political advantage over their opponents, in this case the court and the jury stood their ground. As a result, for citizens who respect the rule of law, it is a date for celebrating the independence of our legal institutions.

Many, including American citizens, and foreigners, are asking whether a convicted felon could be elected and serve as president of the US. The answer to their query is a resounding, yes. In spite of people’s bewilderment, there is nothing in the US Constitution to prevent a convicted felon from occupying the Oval Office if fairly elected. Yet the more pressing question is: Should reasonable and fair-minded citizens vote for a convicted felon based solely on their partisan politics disregarding the general welfare? This is not a factual question, but rather a question about good judgement in politics. Good judgment, however, is not only about virtuous or vicious character but also about who can deliver better outcomes for those affected by policies.

It is important to highlight that ours is a constitutional democracy founded on respect for the rule of law and the democratic principle to elect public officials. While the rule of law provides legal guarantees for citizens who are presumed to be innocent until proven guilty beyond reasonable doubt by a jury of their peers, it does not restrict the will of the people to determine who will govern them, including voting for those who might have been sentenced to serve a prison term. Only “We the People” have the right to determine who will govern them.

American citizens will likely face a stark dilemma in the forthcoming presidential election. We are caught between a rock, and a hard place. Either to vote for former President Trump, who is a convicted felon, or to re-elect President Biden, a person whose mental and physical faculties seem to be faltering. Despite all the reassurances by the democratic party establishment, it is evident that his mental and physical abilities are at least questionable. So to allow President Biden to run for office again might be seen as a folly on the part of the democratic party leadership or as an act of hubris or self-delusion by the president and those who stand to benefit from such a presumably unsound decision. They seem to be gambling with our national interest at a time of great international peril because, even if President Biden were to be re-elected, the likelihood of finishing his term in office is improbable. In the event that were to happen, Vice President Kamila Harris will automatically become the acting president. Yet the vice president’s political capital and leadership acumen are mostly unknown.

One can underscore that citizens always have the choice to vote for public officials based on character, policies, or both. For example, despite serious character flaws, the American populace re-elected former President Clinton to the Oval office in1996. Moreover, he was able to be an effective president at home and abroad. This example shows that failure of character need not prevent an elected official from being an effective leader in promoting the general welfare. Hence, those who support and are ready to vote to elect former President Trump to the Oval Office based on his policies can pivot their argument by citing, for example, former President Clinton when the majority of denizens chose to elect him based on his policies disregarding his moral shortcomings.

Still, one might argue that the above analogy is not necessarily compelling. There are degrees of failure of character. Former President Clinton was never a convicted felon. Also, he was never charged with election interference. Moreover, he did not encourage riots in Washington, D.C. to support him against the will of the people. By demanding that Vice President Pence did not certify President Biden’s victory, one could argue that former President Trump incited an unsuccessful legal coup but an attempted coup, nonetheless. Even nowadays, many supporters of former President Trump and Mr. Trump himself continues to challenge the results of the past presidential election as having been “rigged” with no evidence to support their bogus claim. Unlike former President Trump, former President Clinton did not challenge the foundation of our constitutional democracy by ignoring the rule of law or the will of the people.

Some Trump’s acolytes have sided with the former president by arguing that the New York trial was politically motivated and hence a legal sham. And yet, none of those who have argued so thus far have been able to present a shred of evidence to prove that the judge presiding over the case, the prosecutor team, or the jury were politically motivated rather than motivated by upholding the law. In any case, the former president is ready to appeal his conviction and can exhaust all the legal means at his disposal, including appealing to the Supreme Court of the US (aka, SCOTUS) to try to prove his innocence. No one can prevent any citizen, including a former president, for using his right to try to prove his innocence beyond reasonable doubt in a court of law. That is a vital component of the rule of law, be that in a system of Common Law that prevails in the US, or a system of Civil Law that prevails in Europe.

In the past, former President Trump has flirted with the idea of pardoning himself of any criminal offences that he might have committed while in office but claimed that he had no intention of doing so. But just the fact that he has alluded to such a possibility is worrisome. Since our constitution is silent regarding a self-pardoning power and given the criminal federal charges that the former president is facing, we should be skeptical of his word. Given his bombastic rhetoric and behavior and his disregard for truth, it is reasonable to expect that if President Trump were to be elected, he could choose to pardon himself of all federal criminal charges against him. As a result, he could establish a dangerous precedent whereby the president of the US (aka, POTUS) would be above the law. Such a possible but deplorable outcome would be against the spirit of the Founding Fathers who repudiated royal prerogative in favor of a republican form of government based on respect for both the rule of law and the democratic will of the people.

In the event that former President Trump were elected, he could appeal to SCOTUS to justify a possible self-pardoning decision. Given the present conservative majority of the highest Court, where the former president appointed three of the current nine justices, and the unprecedented nature of his criminal charges, a five to four majority decision in favor of the questionable presidential prerogative of self-pardoning is not only a possible but also a probable outcome.

Of course, “We the People” can choose to vote for a convicted felon for president based on policy, but “We the People” can also demand that it is time for our representatives in Congress to enact a constitutional amendment  based on character to prevent any future convicted felon president to pardon himself or herself for federal crimes committed while in office. To allow POTUS and/or SCOTUS the possibility to approve such a perilous presidential prerogative would be to make a travesty of the rule of law thereby threatening the foundation of our constitutional democracy. Despite whom we choose to vote for in the forthcoming presidential election, whether based on character, policy, or both, as vigilant citizens we have a right and, more importantly, a duty to prevent such a threat to the future of our republic.


SUGGESTED CITATION  Medina, Vicente: Should a Convicted Felon be the Next President of the US?: American Citizens are in a Bind, VerfBlog, 2024/6/11, https://verfassungsblog.de/trump-felon-election/, DOI: 10.59704/839e1b9d34b58766.

8 Comments

  1. Pyrrhon von Elis Tue 11 Jun 2024 at 16:24 - Reply

    I think the actual question should always regard the alternative.

    What is it that the democratic party does wrong that somebody like Trump seems like a viable candidate? I’m no expert in US politics but you can see the sort of blame-shifting attitude here with regards to political shifts as well.

    The best way of opposing bad candidates is by offering good policies. It seems like the democrats fail to do this on such a level that a convicted felon is seen as a preferrable option by nearly half of the country. That’s not a mistake of the populus but a mistake made by the opposition. Voters aren’t wrong in a democracy – parties that don’t adapt to current wishes are.

  2. Christian Dannhauser Tue 11 Jun 2024 at 17:30 - Reply

    One should note and know, that Trump is now a felon according to New York State Law.
    The presidential pardoning power but does not exceed to the states, so self-pardoning would not work here. The same counts for Georgia.
    Pardoning Trump in New York would only be possible for Cathy Hochul.

  3. Félix E. Martín Tue 11 Jun 2024 at 23:55 - Reply

    Mr. Trump may be able to overturn his conviction on procedural grounds and/or the misapplication of the law and other technicalities. Nonetheless, the facts presented at his trial will stand, rendering him a convicted felon, not an “innocent man” as he claims. Further, I don’t think that he will be able to pardon himself a the state level. This was not a federal case. Thus, he may still win the national election and serve as President of the U.S.A. from a state penitentiary in the State of New York.

  4. Miguel Roig Thu 13 Jun 2024 at 12:29 - Reply

    As Felix and Christian have pointed out, it seems that an elected president would not be able to pardon himself of a conviction from a state court. However, because the Trump case shows that someone could be tried and convicted at the federal level and, if elected, could then pardon himself, I totally agree that the current constitutional loophole needs to be urgently addressed. Of course, the more serious challenge for us all is the current state of information dissemination, which not only has resulted in groups of people living in diametrically opposite political realities, but also in groups with vastly different views of ourselves and the world that defy logic and (scientific) truth.

  5. N.W. Mon 24 Jun 2024 at 16:25 - Reply

    Much bigger problem here is the weaponization of justice system to persecute political opponents. I am no fan of Trump, but reviving misdemeanors for which the statute of limitation has expired to attempt to link it inexplicable federal crime that the federal prosecutor refused to try, coupled with a judge who broke the ethics rules by donating money to the accused person’s political opponent and the jury who was instructed that they don’t need unanimity on legal qualification as long as they pick one of the three is banana republic level judiciary. Trump or no Trump, this is a disgrace for a developed democracy. As Pyrrhon nicely put it, voters are not wrong, they see the rot in the current state of politics and they want change. The fact that they want it so much they would rather vote for Trump should trigger some serious soul-searching for the Dems, not further destruction of the institutions.