Trump's hush money trial continues with jury selection: live updates

At the moment he is not subject to any formal campaign restrictions, other than the requirement to be present in court, and he remains very competitive in the polls. But some of the cases are proceeding at a pace that could lead to pre-election verdicts — and the Constitution and American law have clear answers to only some of the questions that would arise if he is convicted.

Others would take the country into truly uncharted territory, with key decisions in the hands of federal judges.

Here's what we know and what we don't know.

Can Trump run if convicted?

This is the simplest question of all. The answer is yes.

The Constitution sets very few eligibility requirements for presidents. You must be at least 35 years old, a “natural” citizen, and have lived in the United States for at least 14 years.

There are no restrictions based on character or criminal record. While some states prohibit felons from running for state and local offices, these laws do not apply to federal offices.

The Republican and Democratic parties have guaranteed general election spots in every state, and the parties tell election officials who to put on the ballot. In theory, states could try to stop Mr. Trump from voting by passing laws requiring a clean criminal record, but that would be on shaky legal ground.

“We leave it up to the states to set the time, place and manner of elections,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law, “but I think the best reading of our Constitution is that you… State does not allow anything to be added to new material requirements.”

Although this view is not widely held among legal experts, it prevailed in court in 2019 after California passed a law requiring candidates to disclose their tax returns in order to appear on the primary ballot. A federal district judge blocked the law from taking effect, saying it was most likely unconstitutional. The California Supreme Court also unanimously rejected it as a violation of the state constitution, and the case never reached the U.S. Supreme Court.

What about the 14th Amendment?

The Supreme Court ruled unanimously in March that states could not keep Mr. Trump from their ballots under Section 3 of the 14th Amendment, which disqualifies people who “have engaged in insurrection or rebellion” after taking an oath in support of the Constitution constitution.

Numerous lawsuits had argued that Mr. Trump's actions before and on January 6, 2021 met this bar. In December, the Colorado Supreme Court ruled he was ineligible, and Maine's secretary of state did the same. But the Supreme Court — led by a conservative supermajority with three justices appointed by Mr. Trump himself — concluded that only Congress had the authority to enforce Section 3 against candidates for federal office. (Four of the justices, including the three liberals, wanted to allow a wider range of disqualification options.)

Congress won't do that if Republicans have control of the House. And the 14th Amendment is separate from criminal cases, meaning convictions wouldn't disqualify Mr. Trump either.

Congress can either designate groups of people to whom Section 3 applies (such as people who fought for the Confederacy) or specific crimes that would trigger disbarment if convicted, said Anthony Michael Kreis, an assistant professor of law at Georgia State University. But none of the crimes with which Mr. Trump is accused carry this automatic penalty.

“Whether or not Trump will be tried, convicted or acquitted is a separate question than whether or not he will be disqualified,” said Richard L. Hasen, an election law expert at the University of California, Los Angeles.

One of the charges in the federal case related to Mr. Trump's efforts to overturn the 2020 election – conspiracy to violate civil rights – once carried a disqualification penalty, Kreis said, but Congress repealed it decades ago.

Could the party replace him on the ticket?

Now that Mr. Trump has secured a majority of delegates to the Republican convention, the party has no mechanism to nominate anyone else. According to the convention's official rules, if a delegate attempts to endorse someone other than the person to whom the primary election results tied them, “such endorsement will not be recognized.”

Leading Republicans have also shown no interest in another candidate.

If he were forced to withdraw from the race after The party congress could then replace him with party leaders; They considered this in 2016 after the release of the “Access Hollywood” tape in which he bragged about grabbing women by their genitals. But that is highly unlikely given how vigorously the party has surrounded him.

Could he vote if convicted?

Probably not.

Mr. Trump is registered to vote in Florida and would lose the right to vote there if convicted of a felony.

Most Florida felons regain their right to vote after serving their entire sentence, including probation or parole, and paying all fines and fees. However, it is highly unlikely that Mr. Trump would have time to serve his sentence before Election Day if convicted.

He could also make a clemency petition that would require the approval of the governor — Ron DeSantis, who ran against Mr. Trump in the Republican primary — and two Florida Cabinet members. Chris Taylor, external affairs director for the Florida Commission on Offender Review, confirmed that a Florida resident convicted of a felony could apply to have their voting rights restored under this process, even if their conviction occurred outside of Florida.

Since Mr. Trump also has a residence in New York, he could change his voter registration there to take advantage of its more permissive approach: felons in New York can vote while on probation or parole. But like Florida and almost every other state, they are still ineligible for prison.

So if Mr. Trump is imprisoned, he could find himself in the extraordinary situation of being considered eligible but ineligible to vote.

What happens if Trump is elected from prison?

Nobody knows.

“We are so far removed from anything that has ever happened,” said Erwin Chemerinsky, a constitutional law expert at the University of California, Berkeley. “It is just a guess.”

Legally, Mr. Trump would still be president even if he were imprisoned. The Constitution says nothing to the contrary. “I don’t think the authors ever imagined we would be in this situation,” Professor Levinson said.

In practice, the election of an imprisoned president would trigger a legal crisis that would almost certainly have to be resolved by the courts.

In theory, Mr. Trump could be stripped of his authority under the 25th Amendment, which provides a process for transferring authority to the vice president if the president is “unable to discharge the powers and duties of his office.” But that would require the vice president and a majority of the Cabinet to declare Mr. Trump unfit to carry out his duties, an unlikely prospect given that these are loyalists self-appointed to Mr. Trump.

More likely, Mr. Trump could seek his release on the grounds that his detention prevents him from fulfilling his constitutional duties as president. Such a case would likely focus on the separation of powers, with Mr. Trump's lawyers arguing that jailing a duly elected president would constitute judicial interference with the operations of the executive branch.

Based solely on the federal charges, he could also seek to pardon himself — or commute his sentence by upholding his conviction but ending his incarceration. Either action would be an extraordinary assertion of presidential power, and the Supreme Court would be the final arbiter of whether a “self-pardon” is constitutional.

Or President Biden could pardon Mr. Trump on his way out the door, saying: “The people have spoken and I must pardon him so he can govern,” Professor Chemerinsky said.

However, this does not apply to the New York or Georgia cases because the president has no pardon power for state charges.

What if he is elected while a case is still pending?

Again, no one knows, especially when it comes to the New York and Georgia cases.

In the two federal cases, a likely outcome would be that a Trump-appointed attorney general would withdraw the charges.

The Justice Department does not file charges against sitting presidents, a policy outlined in a 1973 memo during the Nixon era. There was never any reason to develop a policy about what to do with a new president who had already been impeached. But the rationale for not indicting sitting presidents—that doing so would impair their ability to carry out their duties—also applies in this hypothetical scenario.

“The reasons we don’t want to prosecute a sitting president are the reasons we don’t want to prosecute a sitting president,” said Professor Chemerinsky, who disagreed with the department’s reasoning. “I suspect that if the Trump prosecution were still ongoing in any way and Trump were elected, the Justice Department – that would be the Trump Justice Department – would say, 'We're following the 1973 memo.'”

Like so much here, this would be legally untested, and it is impossible to say what the Supreme Court would do if the question were brought to it.

In its 1997 decision, Clinton v. Jones, the court allowed a lawsuit against President Bill Clinton. But it was a civil case, not a criminal one, and it was brought by a private individual, not the government itself.

Charlie Savage contributed to the reporting.