Donald Trump has become the first former president to face criminal charges in U.S. history, indicted in New York for the role he played in paying hush money to a porn star.
The historic indictment raises many questions as the country barrels toward the 2024 presidential election, in which Trump is the leading candidate for the Republican nomination.
Whether the indictment will help or hinder Trump politically is yet to be seen, though early fundraising numbers suggest the charges have mobilized his base. But experts say legally, the indictment changes little for how the former president can proceed in his bid for the nation’s highest office.
“Legally speaking, there is nothing to bar a former president from being indicted for a state crime, running for office – even convicted,” said Jessica Levinson, founding director of Loyola Law School’s Public Service Institute. “It really just becomes an issue of, practically, how could you run the country behind bars, if ever came to something like that?”
Can Trump still run for president if indicted? Convicted?
“Absolutely,” said Jessica Levinson, founding director of Loyola Law School’s Public Service Institute.
The Constitution lays out the exclusive qualifications to run for the presidency, she said.
- Natural-born citizen.
- At least 35 years old.
- Resident of the U.S. for at least 14 years.
“That could be because the founders just didn’t envision that we would have people who are facing indictment and potentially conviction running for the highest office in the land,” she said.
In fact, the former president has said he does not plan to drop out of the 2024 race despite his legal problems.
“I won’t even think about leaving,” Trump told reporters before a speech at the Conservative Political Action Conference in March.
“Probably, it’ll enhance my numbers.”
Why was Trump indicted?
The charges against Trump have not been made public. But the New York grand jury was investigating the former president for a $130,000 payment he made just before the 2016 election to silence adult film star Stormy Daniels about an earlier affair.
Trump has denied the affair and any wrongdoing, calling the investigation a politically motivated “witch hunt” and urging his supporters to protest his treatment. Trump lawyer Joseph Tacopina called the indictment a “political prosecution” and said Trump’s team would fight it in court.
How does a grand jury work?
Grand juries decide whether a prosecutor’s evidence provides probable cause to issue an indictment, according to Cornell Law School’s Legal Information Institute.
Usually made up of 16 to 23 people, grand juries meet in private as an investigative body independent of a prosecuting attorney or judge. A district attorney shows the grand jury evidence and asks jurors to consider certain charges, David Weinstein, a former federal and state prosecutor, told USA TODAY.
Then the jury votes in secret on whether enough evidence exists to charge someone with a crime. If the majority of the jury believes a person committed a crime, it returns with an indictment. If it does not, the person is not required to plead to a criminal charge and there is no trial.
To be a grand juror in New York, where Trump was indicted, a person must be a U.S. citizen, at least 18 years old, a resident of the county to which they’re summoned to serve and able to understand and communicate in English. A person can’t have a felony conviction.
What law is Trump accused of breaking?
The exact charges Trump faces are still unknown. But the grand jury’s investigation gives some insight into the law or laws the former president may have broken.
Public information from witnesses who have been debriefed by prosecutors and provided testimony to the grand jury indicate that the investigation’s main focus has not strayed far from the payment Trump made to Daniels ahead of his 2016 campaign.
The hush money payment could be used to build a case for falsifying business records and violating campaign finance law.
“The crime here appears to be the falsification of business records to conceal the hush money payments by falsely describing them as legal fees,” said Barbara McQuade, a former U.S. attorney and now law professor at the University of Michigan. “The crime becomes a felony if it covers up another crime.”
Is hush money legal?
A hush money payment itself is not illegal, according to Levinson and McQuade.
“In this case, it appears that Stormy Daniels sold the rights to her story about an alleged affair with Trump to the National Enquirer, giving it exclusive rights to print it,” McQuade said. “The National Enquirer chose to never print the story. As long as Daniels got paid, there is no crime in that contractual arrangement.”
How will Trump’s election affect the 2024 presidential race?
Legally, not much. But politically, it could be a different story.
Trump’s actual and would-be 2024 Republican rivals have so far walked a fine line, criticizing the Manhattan district attorney for indicting Trump while weighing a run against the former president.
Former South Carolina Gov. Nikki Haley, who announced in February that she was running for president, said in an interview with Fox News that Bragg’s case is for “political points” and that he is trying to take “revenge” on the former president. Former Vice President Mike Pence, who is weighing a bid for president, called the indictment “unprecedented.”
Florida Gov. Ron DeSantis, who has not yet launched a 2024 presidential bid but is projected to be Trump’s top competitor, said in a statement on Twitter that the indictment is “un-American” and that Florida would not assist in an extradition request for Trump.
Among Trump’s own base, it’s possible an indictment could boost the former president’s support. After predicting his likely indictment earlier this month, he raised more than $1.5 million in fundraising, according to Fox News.
“He’s been saying that he’s the victim of a political witch hunt for years now, and this is just more proof that he can use that argument,” Levinson said. “But if he gets the nomination, and he has to appeal to a much broader swath of the electorate, I think this is a problem.”