Presidential Power Blog Essay

A Convict in Chief?


The indictment, arrest, and arraignment of former President Donald Trump have given rise to a slew of opinions and questions about the wisdom (both legal and political) of indicting a former President and current presidential candidate. But they also raise two additional questions: Can an incarcerated state prisoner even serve as President of the United States? And is there a mechanism through which Congress, federal officials, or the states can transfer power away from a President because of their imprisonment?

The election of an incarcerated presidential candidate may seem an unlikely scenario, but if the past decade of U.S. politics has taught us anything, it should be to caution us against discounting unlikely political outcomes. Nor is there any guarantee that this current situation is a unique event that will not be repeated as future Presidents leave office. Indeed, while Donald Trump’s criminal indictment is a first for the United States, prosecutions of former national leaders is not unheard of in functioning democracies.

While there is no express constitutional prohibition on a President being incarcerated, it is self-evident that an incarcerated President would pose serious threats to the continued functioning of our country. On the other hand, removing a democratically elected President — even one behind bars — raises serious questions about democratic legitimacy and runs the risk of starting a retaliatory cycle. The question, then, is whether there are implicit legal or constitutional pathways to address the possibility of a “Convict in Chief.”

The discussion that follows provides a brief sketch of these pathways. As Professor Michael Dorf has also argued, it turns out that the Constitution provides few (if any) realistic and permissible avenues to ensure that an incarcerated President does not grind the executive branch to a halt. Neither the “qualifications clause” of Article II, nor the Twentieth or Twenty-Fifth Amendments — designed to handle potentially incapacitated Presidents-elect and Presidents, respectively — offer viable methods to prevent the election of an incarcerated President or to transfer presidential power away from such an individual. Thus, the absence of a clear constitutional remedy should kickstart a conversation about structural changes that may be needed to safeguard our democracy going forward. While Professor Dorf focused primarily on possible channels for resolving the difficulties posed by a federally incarcerated President, the following discussion contemplates ways of dealing with a President serving time in state prison.

I. Constitutional Qualifications and Electing an Incarcerated Presidential Candidate

The simplest way to prevent the election of a candidate currently serving a sentence in state prison would be to bar them from running. However, the Constitution itself places precious few limits on who can be President.  The qualifications clause of Article II consists of just a single sentence delineating only three requirements a candidate must meet to be eligible to serve as president:

No Person except [1] a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have [2] attained to the Age of thirty five Years, and [3] been fourteen Years a Resident within the United States. 

While the Supreme Court has not heard a challenge to this specific clause, the Court has had occasion to interpret the similarly worded qualifications clauses of Article I. In the 1969 case, Powell v. McCormack, the Court held that the House of Representatives could not exclude a member for reasons other than those listed in the qualifications clause of Article I, § 2, cl. 2, which provides: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” And inU.S. Term Limits, Inc. v. Thornton, the Supreme Court made clear that qualifications for federal legislative office established by that clause, as well as by § 3, cl. 3—which sets out comparable qualifications for the Senate—are exclusive and exhaustive, and cannot be modified by the states absent a constitutional amendment.

The language of the qualifications clause in Article II is similarly definite and would likely be subject to the same fate. It therefore seems unlikely that either the states or Congress could disqualify presidential candidates who are currently incarcerated, formerly incarcerated, or under state or federal indictment.          

Nor does the Twentieth Amendment provide an easy answer. Also known as the “Lame Duck Amendment,” that amendment changed the timeline and logistics of transitioning Congress and the President after an election, including introducing a mechanism for dealing with a constitutionally unqualified President-elect:

[T]he Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. (Emphasis added.)

Notwithstanding the procedural mechanism this amendment provides Congress, the same limitations on substantive constitutional qualifications identified in Thornton would likely apply here, because the phrase “shall have qualified” is most naturally read as cross-referencing the qualifications clause of Article II. Thus, even under the Twentieth Amendment, Congress’s role seems limited by the text to only those situations in which a candidate was not a citizen, under thirty-five, or had not been a resident for fourteen years.

Nor does the states’ ability to regulate their presidential electors seem to provide a viable solution. In 2020, the Supreme Court reaffirmed that states can require electors to sign a pledge to vote for a particular party’s candidate and held that they can enforce that requirement with monetary sanctions or by replacing an individual who violates that pledge with another elector. Attempts to use this discretion to prohibit electors from casting their ballots for an incarcerated candidate, however, would likely not pass constitutional muster. Although not central to the holding in Chiafalo v. Washington, Justice Kagan’s opinion calls out this type of electoral regulation specifically, cautioning that: “[I]f a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” Put another way, states cannot create an additional qualification through the back door of regulating electors.

II. Presidential Duties and the Twenty-Fifth Amendment

But the qualifications clause is not all that the Constitution has to say about presidential fitness. The very next clause of Article II, § 1 provides for presidential succession, declaring that “[i]n Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office the Same shall devolve on the Vice President” (emphasis added). A President in state prison is arguably incapable of “discharg[ing] the Powers and Duties of the” presidency. Restrictions on communication alone would render it nearly impossible for an inmate to carry out their day-to-day presidential responsibilities. The inability of prisons to secure classified information would make conducting foreign affairs unmanageable, supervising military operations untenable, and dealing with national crises intolerable. Even routine but constitutionally required duties such as “giv[ing] to the Congress Information of the State of the Union, and recommend[ing] to their Consideration such Measures as he shall judge necessary and expedient,” would create significant if not insurmountable hurdles.

While the logistical challenges facing an incarcerated President may be obvious, the Constitution is unclear on who gets to determine whether a President is constitutionally unable to fulfill their duties. Prior to the passage of the Twenty-Fifth Amendment, the only times this clause had been applied was after a President’s death, when the Vice President had always assumed the powers of the presidency without any need for an external actor to trigger the process of succession. The other specified reasons for transferring presidential power to the Vice President — disability, resignation, or inability — were not subject to the same easy answers. James Garfield, for example, was “disabled” by an assassination attempt that put him in a coma for almost three months before he passed away. Woodrow Wilson was arguably disabled for the last year-and-a-half of his presidency after a massive stroke. But these men retained the title and powers of the presidency, at least in name, in part because the Constitution did not specify who had the power to declare the President constitutionally disabled or unable to fulfill his duties.

The ratification of the Twenty-Fifth Amendment in 1967 finally provided a mechanism by which external actors could initiate a process to transfer the powers of the presidency to the Vice President. Section 4 of the amendment allows “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” to submit a “written declaration that the President is unable to discharge the powers and duties of his office” to both houses of Congress. Upon receipt of this declaration, “the Vice President shall immediately assume the powers and duties of the office as Acting President.”

Notably, Section 4 of the amendment has never been invoked. Even when President Ronald Reagan was undergoing surgery after John Hinckley’s assassination attempt, the Vice President, George H.W. Bush, and Cabinet did not take the formal step of submitting a written declaration to Congress invoking the amendment.

Consider what this means for an elected inmate. An incarcerated President would at best face enormous difficulty in discharging the duties and powers of the office and may even be physically incapable of such a feat. But a President who continued to campaign while incarcerated would presumably be unwilling to declare their own inability to serve as the Commander in Chief. Absent presidential cooperation, who could enforce this provision?

It is possible to envision that a candidate facing a prison term shorter than their term in office might pick a running mate whom they trust enough to assume the powers of the office until their release date. But the potential for a voluntary release of power is a thin reed on which to stake the country’s need for a functioning Executive. And while it is possible to envision a Vice President and Cabinet invoking the Twenty-Fifth Amendment in the case of an imprisoned President, presumably a Convict in Chief would prioritize loyalty when selecting cabinet secretaries to avoid this involuntary invocation of the Twenty-Fifth.

Perhaps the more realistic option to declare an incarcerated President incapable of fulfilling the powers and duties of the presidency would be for Congress to create a body to do just that. Recall that the Twenty-Fifth Amendment allows “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” (emphases added) to attempt to transfer the powers of the presidency away from a disabled or incapacitated President. The most natural reading of this language would seem to require the Vice President to be a part of any declaration to Congress. 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 discussed above.

Moreover, even if the Vice President could be excluded from congressional attempts to declare the President unfit under the Twenty-Fifth Amendment, attempts to do so are fraught. First, the amendment provides no guidance regarding what such a body should look like, or how it should be established. This becomes especially important if different parties control the House of Representatives and the Senate. Inter-chambers fights about the makeup of this body could prevent its formation entirely. Second, the amendment gives the President a path to challenge any declaration of unfitness by submitting their own declaration of fitness to the House and Senate. The same bodies that could initiate the transfer of presidential power can also contest this declaration, at which point a 2/3 majority of Congress must vote to keep the President out of power. Finally, even if a supermajority coalition could be cobbled together, the wisdom of congressional removal of a President through a method other than impeachment is questionable as it could be seen as using a constitutional back door to effectuate a (admittedly temporary) legislative coup against a democratically elected leader.


What should be clear from the preceding discussion is that there is no clear answer to the problems posed by the election of a Convict in Chief. Indeed, the constitutionally sanctioned methods of dealing with such an event seem woefully inadequate. Perhaps this was by design. The high bar placed on removing a President may reflect the choices made by the Founders (and the drafters of subsequent amendments) that respecting the outcomes of democratic elections should be of utmost importance. But at some point, the functioning of the country should outweigh these concerns. Whether such fundamental balancing can be done in our current political climate remains to be seen. In the meantime, we would be wise to anticipate this potential constitutional crisis and begin thinking about ways to fill in the current absence of a constitutionally permissible avenue for navigating the election of a Convict in Chief.

* Acting Assistant Professor at NYU School of Law. My thanks to Eric Berger, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Madeleine Gyory, Elise Bernlohr Maizel, and the editors of the Harvard Law Review for their insightful comments and feedback.