He could follow the playbook of the socialist firebrand Eugene V. Debs, who in 1920 received nearly a million votes while behind bars.
The indictment and other ongoing criminal investigations of Donald Trump raise the real — if still remote — prospect that a leading contender for the 2024 presidential nomination could face prison time.
There are no legal obstacles to running for president as a convicted felon or even from behind bars. And if Trump finds himself in that predicament, he’ll be following in the footsteps of another rabble-rousing populist and frequent presidential candidate: the avowed socialist Eugene V. Debs, who received nearly a million votes while in prison a century ago.
Debs is far from the only person who has sought the highest office in the land while in prison, but he was the most successful. In 1920, he became the Socialist Party nominee while serving a 10-year federal sentence for urging people to resist the World War I draft.
He received 3 percent of the popular vote, a respectable tally for an incarcerated socialist, but nowhere near enough to force the nation to seriously grapple with an improbable constitutional question: What happens if an imprisoned candidate actually wins?
Trump’s escalating legal troubles are resurrecting that question. He has been indicted in New York for falsifying business records, a state crime that carries a maximum four years in prison when charged as a felony. Many experts contend that even if Trump is convicted, he is unlikely to see prison time because judges rarely sentence first-time offenders to prison for that type of felony. But three other ongoing criminal investigations of Trump — one in Georgia for election interference and two from special counsel Jack Smith in Washington — could trigger more serious felony charges and carry a higher risk of prison.
A Trump electoral victory from behind bars would open a constitutional can of worms, but the general view among legal scholars is that the need for a duly elected president to fulfill the duties of office would override a criminal conviction and require the sentence to at least be put on hold. And if Trump were convicted of a federal crime, he could even try to pardon himself immediately upon taking office — a maneuver that Debs himself promised to undertake if he won.
“Then we’re just going to get into uncharted waters,” Seton Hall law professor Eugene Mazo said. “I don’t think we have an answer to this.”
Trump and Debs, unlikely bedfellows
The comparison to Debs might not appeal to Trump, who is fond of railing against socialists (or people he labels socialists). Some might also view the comparison as unfair to Debs, who is seen by many in the labor and anti-war movements as a hero. Still, the two firebrands have a surprising amount in common.
Just as Trump portrays the array of legal challenges he faces as political persecution, Debs and his allies tried to use his legal woes as a rallying cry that would propel his presidential candidacy.
“They basically used his imprisonment to say he was a victim of the Red Scare and viewed it as a kind of badge of honor,” said Peter Dreier, a politics professor at Occidental College. “They held rallies all over the country with a prison picture of Debs on the picket signs. … He might have gotten more publicity running from prison. … You can imagine Trump doing the same thing.”
Indeed, some of the memes of Trump circulating on social media — including a mock-up of a Trump booking mugshot that was never taken — look much like lapel buttons that circulated during Debs’ 1920 campaign showing photos of him along with his federal prisoner number. “For President: Convict No. 9653,” the buttons said.
Trump — who famously said he could shoot someone on Fifth Avenue and not lose a single vote — is already trying to convince his supporters that they’re the ones under attack. “In reality, they’re not after me, they’re after you. And I just happen to be the person that’s in the way,” he said at a recent rally in Texas.
Debs, too, argued that he was taking the fall because his political movement threatened the entrenched political elites.
“It’s an interesting parallel,” said David Stebenne, a professor of history and law at Ohio State University. Debs “was viewed by his supporters as a martyr, and the Socialist Party did not trust the mainstream media of 1920,” the professor added.
No constitutional obstacles
Debs’ case raised a question many are asking now: Can a person run for president, or be elected president, after being convicted of a crime or even while in jail? The answer, then and now, appears to be yes.
“There’s nothing barring Trump from running. Even a federal conviction doesn’t prevent that. … Even if he were mentally insane,” Mazo said. “The Supreme Court has said what’s in the Constitution are the only requirements you need to run for federal office.”
Those requirements are minimal: A person must be at least 35 years old, must be a natural-born citizen and must have lived in the U.S. for at least 14 years.
The Supreme Court has never weighed in directly on those requirements, Mazo said, but in a 1995 case, the justices rejected an attempt by Arkansas to impose term limits on its U.S. senators and House members. That logic seems to extend to any attempt by a state to declare a presidential candidate ineligible for reasons not spelled out in the Constitution, the professor added.
States remain free to exclude felons from the ballot for state and local positions, just not federal ones, Mazo said. “In the states, we have different rules,” he said.
What would happen if a person in prison actually won the presidency is a thornier question. Would the new president have to govern from a jail cell?
Probably not. Many legal experts argue that a state-court sentence would have to be held in abeyance. Whether a federal sentence would also have to be postponed is less clear, but the question might not matter if the new president used his pardon power to set himself free — or preemptively pardon himself from any pending federal charges. (The pardon power covers federal crimes, but not state crimes like the New York charges for which Trump was indicted this week.)
Stebenne noted that Trump has extra motivation to win and dodge whatever charges federal prosecutors may be considering against him. “It provides a strange reason to run, but a powerful incentive,” the professor said. “If Trump attempted to do that, it would probably create some sort of constitutional crisis.”
An exotic cast of characters
After Debs, the history of prisoners seeking the presidency is peppered with eccentric personalities.
Conspiracy theorist Lyndon LaRouche ran for the White House eight times, with one of those bids — in 1992 — coming as he served a 15-year sentence for mail fraud, conspiracy and tax evasion. He was released in 1994 and died in 2019.