Felony Convictions to Presidential Positions: Should There Be a Limit on Holding Public Office?

I. Introduction

We need leaders not in love with money but in love with justice. Not in love with publicity but in love with humanity. Leaders who can subject their particular egos to the pressing urgencies of the great cause of freedom.

— Martin Luther King, Jr.^[1]

Donald Trump won the 2024 presidential election, yet the results have left the country divided on its confidence in his presidency.^[2] While not wholly surprised by President Trump’s victory, post-election reports reveal that many Americans remain skeptical of his ability to unify the country.^[3] In addition to the worries surrounding the future of politics and policy, there is one concern in particular that this election has raised that has not been considered in many years—should a convicted felon be able to hold office as President?

Approximately seventy-eight million people in the United States have a criminal record, with an estimated twenty million being felony convictions.^[4] While felony convictions pose the possibility of jail time, the consequences of a felony record extend well past the point when an individual has satisfied their sentence.^[5] Convicted felons often face continuous obstacles known as “disenfranchisement” laws that hinder their participation in the democratic process even after they have completed their sentence.^[6] These laws strip away rights, most commonly the right to vote, from people who have past criminal convictions.^[7] The negative impact of disenfranchisement laws was noticeable with voting rights in the 2024 election, where four million Americans were ineligible to vote due to felony convictions.^[8] However, while voter disenfranchisement is an ongoing issue, the 2024 election also raised a different concern—those convicted felons who may be unable to vote for positions of power may nonetheless be able to run for those positions, even as high as the President.^[9]

The focus of this Comment is to shed light on the unprecedented situation the country is now in. Through a background of felonies and disenfranchisement laws,^[10] this Comment will discuss the context surrounding the recent controversy on whether President Trump, as well as future Presidents, should be able to hold such a position of power following a felony conviction. In turn, this Comment will analyze whether the limit to re-enfranchising felons to the civil aspects of society should extend to holding federal positions of power, specifically those convicted for a crime of dishonesty, and what conflicts would arise if a line were to be drawn.

Part II discusses what it means to be a felon and what theories lie behind the justification of conviction. Part III discusses the origins of the concept of felon disenfranchisement alongside the reasons why there has been a gradual shift away from the concept. Part IV discusses the lesser-known idea of candidate disenfranchisement and how the ability to hold public office varies between federal and state laws. Part V discusses the current event that has caused candidate disenfranchisement to take the main stage by looking into the powers of the President alongside the conviction of Donald Trump to see how the two notions may conflict. Finally, Part VI discusses possible routes for addressing the controversy behind a felon holding office as President, as well as any constitutional implications and obstacles that may be faced.

II. Felonies and Punishment: A Background

To better determine whether a convicted felon should be able to run for President necessarily requires an understanding of the underlying mental state that is needed to become a felon and why exactly people are punished for it. Such an understanding provides context as to why those who commit certain felonies are excluded from certain civil aspects of society, specifically the right to hold office.

A. What Does It Mean to Be a Felon?

Defining the term “felony” is a task that one may find to be much more difficult than expected—primarily because it is so ambiguous that it is virtually impossible to precisely understand the meaning.^[11] The most common use of the word felony is to distinguish certain high crimes and grave offenses from the lesser offenses known as misdemeanors.^[12] The Model Penal Code classifies a crime as a felony if a person who is convicted may be sentenced to death or imprisonment for a term in excess of one year.^[13] Many states follow a similar pattern of defining felonies.^[14] While modern statutes and codes provide the sentencing details, a gray area remains as to what exactly constitutes a felony and why specific crimes are labeled as felonies.

In its earliest form, a felony was not considered a serious crime as it is seen today, but rather it was viewed as a breach of faith and trust between “lord and man.”^[15] The punishment for this resulted in the loss of land through escheatment back to the lord.^[16] As this originates from feudal times, the doctrine of disloyalty to the lord eventually lost its meaning and morphed into a more common definition of a felony—a serious crime punishable by death.^[17] Eventually, the definition was generalized even further as the number of types of felonies began to multiply, and what is left today remains ambiguous.^[18] Despite the evolution and subsequent uncertainty in meaning, the heart of the definition of a “felony” appears to remain true to the original meaning from feudal times—the intent and free will to commit a morally blameworthy act.^[19] A felony should not be an accident—there must be deliberation and clear intentionality to cause harm.^[20] Moreover, felonies call for the unrestrained exercise of an individual’s volitional will in the absence of a necessity.^[21] The individual’s intent and volition both go toward an action that is viewed overall as rising to the level of malice, wickedness, depravity of heart, or moral blameworthiness—similar to the original concepts of disloyalty and breach of trust rooted in feudal times.^[22]

Altogether, while the ambiguity behind the definition of a felony is inevitable, it may nonetheless be simplified to refer to the intentional forethought to commit a morally blameworthy act under one’s own volition.^[23] This leaves open the remaining requirement of understanding what it means when a person is convicted of one.

B. Why Are Felons Punished?

Punishment is a crucial feature of the legal system because it is a consequence of a criminal conviction.^[24] Although multiple theories suggest that punishment is necessary for the criminal legal system to function, there is disagreement over the moral principles behind it and the adverse effects it has on the lives of those convicted.^[25] There are two leading theories behind the justification of criminal punishment—retributivism and utilitarianism.^[26]

Under a retributivist approach, “punishment is justified because people deserve it.”^[27] Similar to the concept of “an eye for an eye,” this theory reasons that “the severity of punishment should be proportional to the degree of wrongdoing.”^[28] This theory, however, has raised tensions surrounding social judgment and assuming someone’s moral guilt.^[29] As a result, the utilitarian theory has dominated in American jurisprudence.^[30]

Under a utilitarian approach, the justification for punishment lies in the useful purpose that it serves.^[31] The principle of utility recognizes this by creating a system in which every action is either approved or disapproved of according to its tendency “to augment or diminish the happiness of the party” or individual in question.^[32] As a result, punishment must impose a sufficient amount of pain that will exceed any pleasure the criminal anticipated from committing the crime in order to deter the criminal and other people from committing crimes.^[33]

Despite the drastic variations between the theories of criminal punishment, they both exist as a way of determining what effective criminal law should look like.^[34] Whether it is to deter harmful behavior or inflict the punishment that one deserves, the overall idea of criminal punishment is that it sends a message about what behavior society deems as blameworthy.^[35] Because their behavior is blameworthy, felons receive a sentence with an exact form of punishment, typically with a defined value.^[36] However, individuals do not always revert to their pre-conviction life once a sentence has been fulfilled.^[37] Instead, they face continuous hurdles to maintain the rights they held before being convicted—a concept better known as disenfranchisement.^[38]

III. The Rise and Fall of Felony Disenfranchisement

The idea of restricting felons from civil aspects of society is a long-established concept in the United States.^[39] While this concept originates from restricting felons from the right to vote, disenfranchisement laws cover a wide range of civil rights.^[40] However, laws specifically aimed at the right to vote have been shown to have an adverse effect on minority groups—thereby causing a gradual drawback in the provisions that place these restrictions on felons.^[41]

A. The Origins of Felony Disenfranchisement

Disenfranchisement laws embody the act of depriving someone of a right, and more commonly, the act of depriving the right to vote from citizens with past criminal convictions.^[42] Disenfranchising felons from the right to vote is not a new idea—there is a long history of its prevalence within the United States.^[43] The concept of felony disenfranchisement is rooted in the idea of “civil death,” which dates back to ancient Greece and Rome, where citizens were deprived of their basic civil rights once they had committed crimes that “broke the social contract of a political body.”^[44] The concept stayed throughout colonial-era America during the time in which only white male property owners could vote.^[45] After the Civil War, voting rights were eventually extended to African Americans with the caveat that harsh disenfranchisement laws were imposed—such as the use of literacy tests, property qualifications, poll taxes, and the prohibition of people with certain felony convictions from voting—laws which primarily targeted Black voters.^[46]

The Supreme Court did not address the issue of felony disenfranchisement laws directly until 1974.^[47] In Richardson v. Ramirez, the Court upheld several provisions within the Constitution of California and the California Elections Code that disenfranchised felons who were convicted of bribery, perjury, forgery, malfeasance in office, or “other high crimes.”^[48] By focusing strictly on the Fourteenth Amendment, the Court held that Section Two contained an express authorization of states’ rights to exclude felons from the ability to vote.^[49] Moreover, the Court noted that at the time of the amendment’s adoption, it was the understanding of the framers that twenty-nine states had provisions prohibiting the right to vote for convicted felons—thereby rooting felony disenfranchisement in the original meaning of the Fourteenth Amendment.^[50]

Following the decision in Richardson, discrimination on the basis of felony conviction status had essentially been legalized in the context of voting rights.^[51] However, as America began to progress, the states slowly began to realize the negative implications behind these disenfranchisement laws.^[52] While the rationale behind voter disenfranchisement suggests that allowing convicted felons to vote would undermine the integrity and “purity of the ballot box,” it appears that a vast majority of the public supports the restoration of voting rights to felons.^[53]

B. The Gradual Shift Away from Felon Disenfranchisement

There has been a notable decrease in the number of felony disenfranchisement provisions across the country.^[54] This is predominantly accomplished through legislatures revising voting rights provisions, threats of litigation, restoration and pardon procedures, and direct votes from citizens to restore the rights of convicted felons.^[55] Much of this movement toward re-enfranchisement is largely due to the negative effects of disenfranchisement laws and the theories behind allowing convicted felons to vote.^[56]

Felon disenfranchisement laws have a disproportionate impact on minorities because of the connection with mass incarceration rates.^[57] In 2022, approximately 1.2 million people were incarcerated in state or federal prisons, with an additional 3.7 million people on probation or parole.^[58] Moreover, the imprisonment rate over the past ten years has been predominantly African Americans, American Indians, and Latinos.^[59] In 2012, the imprisonment rate for white people was 296 for every 100,000 Americans, whereas the rate for African Americans was 1,866.^[60] By 2022, although imprisonment rates had decreased among all races, the rate for white people was 229 for every 100,000 Americans, whereas it was 1,196 for African Americans—a difference that remains substantially high.^[61] As a result of disparities in incarceration rates for people of color, those disparities consequently replicate themselves in society post-conviction through disenfranchisement laws that prevent the same people of color from voting.^[62]

The outcome thus results in the undermining of democracy, rehabilitation, and the anti-recidivism goals of the criminal justice system.^[63] The American democracy is intended to be inclusive, yet ex-felons constitute such a large part of the United States population that their exclusion from the political process inherently goes against basic civil and political rights.^[64] More importantly, restrictions on voting hinder rehabilitative goals.^[65] Ex-felons who maintain the right to vote have lower rates of recidivism than those who continue to be barred because voting signifies the return to society and citizenship that ex-felons desire once their sentence is complete.^[66] Without the right to vote, ex-felons may be left feeling helpless and defeated to the point that they may re-offend.^[67]

The negative effects of disenfranchisement laws have not gone unnoticed. As of 2024, an estimated 4 million Americans are disenfranchised due to a felony conviction—a drastic decrease from the 5.9 million disenfranchised in 2016.^[68] However, while the trend in decreasing the effects of disenfranchisement is heavily focused on the laws centered around the right to vote, disenfranchisement also restrains other forms of political participation, such as running for public office.^[69]

IV. Positions of Power

The 2024 election highlighted the gradual shift away from disenfranchising felons from the right to vote. At the same time, the election raised another concern that is of importance in this Comment: candidate disenfranchisement. While voter disenfranchisement limits the right to vote, candidate disenfranchisement limits the right to hold public office.^[70] However, there are drastic differences between whether that public office is state or federal. While the federal government hardly addresses the qualifications to hold public office, almost every state has a statute in place to limit such a right.^[71] As for the states, that line appears to be drawn at felons who have committed crimes of dishonesty.^[72]

A. Candidate Disenfranchisement

The phrase “felony disenfranchisement” is heavily referred to in the context of stripping away voting rights from convicted felons. However, felony disenfranchisement encompasses much more than the right to vote.^[73] Alongside voter disenfranchisement is the concept of candidate disenfranchisement, which refers to laws that do not allow convicted felons to run for or hold political office.^[74] Candidate disenfranchisement has rarely been a leading issue as compared to voter disenfranchisement, primarily because few felons seek public office, whereas a greater number of felons desire to exercise their right to vote due to the substantial effect it has on them.^[75] In the states that have minimal restrictions on a felon’s right to run for public office, this creates an unusual paradox—convicted felons may have the right to run for public office, but they do not have the right to vote for those who run for public office.^[76]

The origins of candidate disenfranchisement are inherently connected to the repercussions of felony disenfranchisement in that convicted felons are continuously denied various aspects of citizenship, even after their sentences have been completed.^[77] Because of the momentous impact that voting rights had on American history, subsequently leading to the passage of the Voting Rights Act of 1965, it is expected that voter disenfranchisement takes center stage when discussing felony disenfranchisement as a whole.^[78] However, when convicted felons have completed their sentence, they are faced with additional types of restrictions in various areas—not just voting.^[79]

One such restriction on citizenship that convicted felons face is the ability to hold public office.^[80] This issue has not been highly talked about until the recent election, primarily because such few convicted felons have run for public office in the past.^[81] Moreover, there are notable differences in the ability to run for public office depending on whether it is a state or federal position, and while it may come as a surprise, convicted felons have a greater ability to run for positions of power at the federal level as compared to the state level.^[82]

1. The Federal Government’s Perspective

Not only is there no explicit right to run for public office mentioned in the Constitution, but the Qualifications Clauses also do not establish a prohibition on a person running for or holding federal public office based on past felony convictions for the House, Senate, or President.^[83] For the President, specifically, the Qualifications Clause only requires the person to be a citizen of the United States, thirty-five years old, and have been a resident of the United States for fourteen years.^[84] These few requirements emphasize the intent of the framers to minimize restrictions on the electoral process.^[85] Alexander Hamilton defended such restrictions, stating that “the true principle of a republic is, that the people should choose whom they please to govern them.”^[86] This statement has held strong to this day and has gone so far as to allow convicted felons to be a part of the electoral process. The most notable instances of a convicted felon running for federal public office include presidential nominee Eugene Debs and Alaska Senator Ted Stevens.^[87]

Eugene Debs was a well-known Socialist Party nominee who ran for President five times—with one of which being while he was in federal prison.^[88] In 1918, Debs delivered a speech in Canton, Ohio, where he advocated against American-style capitalism, which included criticism of the Supreme Court.^[89] Debs was arrested shortly after his speech and was charged with ten counts of violating the Sedition and Espionage Acts.^[90] He was sentenced to ten years in federal prison, but that did not stop him from running for President.^[91] In 1920, Debs was nominated as the presidential candidate for the Socialist Party, which was the first time anyone had been nominated for such a position from inside prison.^[92] Although he did not win the election, Debs did win 3.5% of the electorate vote, and he was eventually released from prison by his winning opponent, President Warren Harding.^[93] But more astonishingly, Debs’s nomination and candidacy highlighted the ability of a felon to run for federal office—specifically, the President.

From the perspective of the Senate, Alaska’s longest-serving Republican senator, Ted Stevens, stood for re-election in 2008 despite being convicted on seven counts of corruption.^[94] The Republican senator had lied to conceal gifts received by the chief of Veco, an oil company in Alaska, which included complete renovations to his home.^[95] The conviction made Stevens the fifth sitting senator to be convicted of a crime, and although he did not give up his bid for re-election, he lost to his Democratic opponent, Mark Begich.^[96] While Stevens was eventually exonerated in 2009, his original conviction and re-election bid further emphasize the ability of convicted felons to hold public office at the federal level.^[97]

Eugene Debs and Ted Stevens were able to continue to run for federal public office positions despite their felony convictions, primarily because there are no restrictions on the ability to run for federal office based on felony status.^[98] The same cannot be said for the individual states—many of which have imposed various restrictions on who can run for or hold office at the state level based on their criminal history.^[99] However, these states may have valid reasoning behind the decision to impose these restrictions, which bears the question of whether the United States should take that reasoning into consideration for its own public officeholders.

2. The States’ Perspective

Although the right to run for federal public office is not explicitly mentioned in the U.S. Constitution, the Supreme Court has recognized the states’ interest in having the right to control who is listed on their ballots for state office elections in cases such as Lubin v. Panish.^[100] There, the Court emphasized that the role of the primary election process is underscored by the importance of assuring that “fragmentation of voter choice is minimized” and that there is a regulation of the filing of “frivolous candidates.”^[101] Failing to regulate such candidates runs the risk of allowing all citizens to present themselves on the ballot without regard to the seriousness of that candidate’s desires and motivations, which would therefore make a rational voter’s choice more difficult and impede the electoral process.^[102] Because of this, the states hold the ability to control whose name appears on their ballots—a power which has yet to be reciprocated on a federal level.^[103]

While the Supreme Court has primarily addressed state law restrictions on candidacy in the context of filing fees and other “reasonable requirements,” state courts have interpreted opinions such as Lubin as a way to justify candidate disenfranchisement laws for state public office.^[104] For example, when the Governor of West Virginia challenged the constitutionality of placing limits on the number of terms he could serve in office, the state court recognized that any restriction on a substantial group of people was inherently unconstitutional.^[105] However, by interpreting the Supreme Court cases cited by the Governor, the state court simultaneously recognized “incidental limitations” on eligibility for office that place restrictions only with regard to “objective qualifications, established on a rational basis, in a valid attempt to insure [sic] wisdom, dignity, responsiveness, and competence in public officials.”^[106] In further illustrating this reasoning, the court provided a list of examples of such incidental limitations that would restrict candidacy—one of which being someone who was “under conviction for a felony.”^[107] As a result of the decision, West Virginia became one of many states to justify its restrictive laws on the eligibility for public office based on felony status through judicial means.^[108]

The Supreme Court decisions permitting eligibility restrictions for candidates provide clarity as to why individual state laws have introduced such diverse stances on the types of limitations that should be imposed on convicted felons who seek to hold public office.^[109] These differences have resulted in statutes defining eligibility requirements that vary widely depending on which state the person is in.^[110] There are only a few states that do not outright deny the right for a convicted felon to hold public office, whereas a vast majority of the remaining states take the opposite approach by either barring convicted felons from holding public office altogether or by allowing them to hold office only when certain conditions are met.^[111]

For example, Maine is one of the few states that does not strip away the right to hold public office after a felony conviction.^[112] While there was previously a statute stating that a person may be removed from office due to a conviction, it was eventually repealed in 2019, thereby leaving Maine with no such restriction.^[113] The state did not provide any reasoning as to why the statute was repealed or as to why convicted felons were now permitted to hold office, but some indication may be attributed to the previously mentioned ideas of rehabilitation and recidivism.^[114] Primarily discussed in the context of voter disenfranchisement, excluding convicted felons from the democratic process discourages civic participation and has the possibility of increasing the chances that the person repeats the same problematic behavior.^[115] Civil reintegration, on the other hand, has been hypothesized to facilitate the development of productive and responsible law-abiding citizens.^[116]

The possible theories behind Maine’s approach may appear valid, yet almost all the states continue to limit the ability of a convicted felon to hold office. For example, the Constitution of Pennsylvania provides that a person convicted of “embezzlement of public moneys, bribery, perjury or other infamous crime” is incapable of holding any office of trust or profit in the state.^[117] Missouri requires the forfeiture of office if a person is convicted of an offense involving misconduct in office or dishonesty.^[118] The right to hold office is restored upon the completion of the sentence, except for felonies connected with the exercise of the right to vote, in which the person is forever disqualified from holding any public office.^[119] The remaining state statutes apply similar restrictions—with a majority specifically targeting crimes relating to money and dishonesty.^[120] Out of the immense list of crimes within each state, it is telling that these states targeted these specific crimes for their officeholders—and the reasoning behind it explains why.

B. The Common Trend: Not All Convictions Are Equal

The exclusion from holding public office is far from a new concept.^[121] The justification lies in that states have a valid interest in excluding “those who would impair efficiency and honesty in government operations.”^[122] And according to the courts, this justification is merely a balancing test: the possible unfairness of the loss to hold public office weighed against “the inherent danger to the body politic that a criminal may exercise the powers of government.”^[123] To comply with this balancing test, the states have targeted specific crimes that pose such an inherent danger.

The targeting of such inherently dangerous crimes should not come as a new idea to the federal government. In fact, this process is comparable to sets of legal rules such as the Federal Rules of Evidence and the Model Rules of Professional Conduct. In the realm of evidence, Rule 609 governs the impeachment of witnesses by evidence of a criminal conviction.^[124] More specifically, Rule 609 emphasizes that evidence of a witness’s conviction of any crime requiring an element of “a dishonest act or false statement” must be admitted and may subsequently be used to impeach a witness based on their character for truthfulness.^[125] The reasoning for this lies in the inherent assumption that a witness who has been convicted of a crime relevant to their truthfulness is more likely to lie on the stand as opposed to a witness who has not been convicted.^[126] Lying on the stand imposes a grave risk of harm to the people who are relying on the truth, which is what the Rules of Evidence aim to avoid by allowing impeachment for such crimes of dishonesty.^[127]

Similarly, the realm of professional responsibility addresses the need to maintain integrity in the legal profession through Rule 8.4 of the Model Rules of Professional Conduct, which provides that it is an act of misconduct for a lawyer to commit a crime that has an adverse effect on their honesty, trustworthiness, or fitness as a lawyer.^[128] Moreover, a lawyer cannot engage in conduct that involves dishonesty, fraud, deceit, misrepresentation, or is overall prejudicial to the administration of justice.^[129] The reasoning behind this rule is made clear—“[l]awyers holding public office assume legal responsibilities going beyond those of other citizens.”^[130] When lawyers commit a crime that reflects adversely on their honesty, it suggests an inability to fulfill the professional role of public office.^[131] Because of this, the Model Rules of Professional Conduct implement this safeguard to protect citizens who may be harmed as a result of such conduct by lawyers.^[132]

The focal point in both of these rules appears to be centered on a person’s ability to exercise some form of power—in this case, testifying in court or providing legal assistance—coupled with the risk of that person abusing the power due to having been convicted of a crime related to dishonesty. Applying this concern to the states’ apparent interest in deterring those convicted of crimes of dishonesty from holding public office, it would follow that the overall goal is to prevent officeholders from acting untruthfully to the detriment of the people and to, in turn, cause the people to lose trust in the government.^[133] The emphasis on crimes of dishonesty here, as compared to other crimes, is in large part due to an officeholder’s access to funds and financial assets that would allow them to make immoral decisions that play in their favor.^[134] Bribery, for example, could involve either offering a pecuniary benefit to someone in exchange for a vote or accepting a pecuniary benefit from someone in exchange for violating a legal duty as an official.^[135] In either outcome, the officeholder has breached some form of trust through financial methods made available to them by their office position.

Because of the risk of someone taking advantage of a position that the people have entrusted them with, the states have mitigated the problem through their laws by ensuring that people convicted of crimes of dishonesty can no longer hold office.^[136] While this is a mitigation method that only the states have implemented, recent developments in the presidential election have opened the door to considering whether the federal government should follow suit.

V. A New Disenfranchisement Issue Has Taken the Lead: The President

Based on the prevalence of statutes, the states appear to have thought out the possibility of a person holding public office after having been convicted of a crime of dishonesty. Although the federal government does not seem to have the same concern, the recent election of President Trump following his criminal conviction has the possibility of sparking the conversation as to whether the federal government should follow the path of the state statutes.^[137] The key points in this conversation would be whether President Trump committed a crime of dishonesty, and if he did, how does that pose a risk to the nation as a whole in regard to the powers that he now holds as President?

A. The Trump Effect

Over a century after Eugene Debs’s presidential campaign from a prison cell, the United States is now facing a similar situation—but this time a convicted felon has actually been elected.^[138] The 2024 presidential election marked the shocking political comeback of Donald Trump after facing not only a felony conviction but also indictments and accusations of authoritarianism.^[139] This is now the first time in history that our country will have a convicted felon holding office as President.^[140]

Donald Trump’s conviction has a long history. On May 30, 2024, a Manhattan jury found Trump guilty of thirty-four charges of falsifying business records.^[141] The language of the penal law simply states that a person is guilty of falsifying business records in the first degree when they commit the crime of falsifying business records in the second degree and when the intent to defraud includes an intent to commit, aid, or conceal the commission of another crime.^[142] The “other crime” that Trump was found to have intended to commit, aid, or conceal was under the New York Election Law for conspiracy to promote or prevent an election.^[143]

Trump’s conviction developed from a $130,000 “hush money” payment that his attorney, Michael Cohen, made to adult film star Stormy Daniels before the 2016 election.^[144] The supposed purpose of the payment was to prevent voters from discovering Daniels’s allegation that she had sexual relations with Trump in previous years and ensure that Daniels remained silent on the matter.^[145] However, the charges themselves primarily dealt with the behind-the-scenes paperwork that went toward Trump reimbursing Cohen for the payment made to Daniels.^[146] The total amount paid to Cohen came out to $420,000—all of which was calculated on handwritten notes by an executive at the Trump Organization.^[147] The reason why Trump received thirty-four charges for these records is because each charge corresponded to a singular check, invoice, and voucher generated for Cohen’s reimbursement.^[148] Specifically, the records accounted for a total of eleven checks, eleven invoices, and twelve vouchers.^[149] After several weeks of trial, Trump was subsequently found guilty of the felony of falsifying business records in the first degree.^[150]

After Trump’s conviction, the American people were aware of the questionable situation that had occurred just months before the presidential election.^[151] Yet after his conviction became reality, opinions continued to appear split.^[152] On one end, voters appeared to be appalled by the idea of a convicted felon running for President, and on the other end, some voters praised the idea.^[153] From the perspective of those who were wary of Trump’s second term, much of their concerns could be attributed to the question of—as a political figure who has been connected with such high-profile cases involving large sums of money—how will this criminal record influence his actions as President?^[154]

Unlike the states, there is no safeguard to prevent those convicted of crimes of dishonesty from holding public office at the federal level; and with a thirty-four-count conviction involving false statements with an underlying crime of election conspiracy, there is little doubt that a majority of the states would consider Trump ineligible to hold public office for committing a crime of dishonesty.^[155] Whether the federal government should consider a similar path as the states requires determining not only what powers the President holds and how those powers would affect the people, but also the risks involved with implementing such restrictive laws.

B. The Powers of the President

To consider whether a person convicted of a crime of dishonesty should hold office as President, it is necessary to understand what powers the President holds to begin with and how those powers would impact the people. For example, with President Trump in office again, he now holds the general responsibility of carrying out the powers of the Executive Branch.^[156] These powers have expanded since the inception of the Constitution, thereby creating a flexibility of such power that influences much of what the President does and has a direct impact on the nation.^[157] More importantly, it increases the risk of the President abusing such flexibility in power based on “sweeping claims of authority.”^[158]

The executive powers enumerated in the Constitution include the power to recommend laws, veto laws, appoint federal officers, grant pardons, command the armed forces, conduct foreign affairs, and overall “take care” that the laws are faithfully executed.^[159] Many of these powers go much deeper than what is stated in the Constitution. The reasoning for this can be traced back to Justice Jackson’s famous concurrence in the case of Youngstown Sheet & Tube Co. v. Sawyer.^[160] There, Jackson emphasized that presidential powers are not fixed—they fluctuate depending on their “disjunction or conjunction” with the powers of Congress.^[161] Specifically, there are three categories that the President’s exercise of power can fall into: (1) if Congress expressly or impliedly authorized the President’s action, then that action is almost always constitutional; (2) if Congress neither authorized nor forbade the action, then the constitutionality requires an evaluation of congressional acquiescence, indifference, and the overall context; and (3) if Congress expressly or impliedly forbade the President’s action, then that action is unconstitutional unless it remains within the inherent powers of the President.^[162] As the Youngstown framework makes clear, the President’s powers may be more flexible than what is enumerated in the Constitution.

An example of such flexibility in powers may be seen in the case of Dames & Moore v. Regan, where President Carter issued a series of executive orders to freeze Iranian assets and suspend claims against Iran in response to the hostage crisis.^[163] As for the act of freezing assets, the Court found it was pursuant to express congressional authorization within the International Emergency Economic Powers Act—thereby falling into the first Youngstown category.^[164] Carter’s act of suspending claims against Iran was not expressly authorized by Congress, but the Court reasoned that through a history of congressional acquiescence in executive claims settlements, inferences could be drawn that the President was authorized by Congress to suspend the claims—thereby falling into the second Youngstown category.^[165] Cases such as Dames & Moore emphasize that although an exercise of power by the President may not be explicitly enumerated in the Constitution, the President may nonetheless be permitted to exercise such power if it is authorized in some form by Congress.

During the Obama Administration, for example, thirty-four executive orders were issued during his second year in office, and only fifteen cited a specific law as the source of authority, while the remaining orders relied on the general authority vested in the President by the Constitution and the laws of the United States.^[166] As this risk of abuse of power relates to felony convictions, there is now an additional risk of possible dishonest motives for personal gain by the President—which is far from a new concept.^[167] Such dishonest motives have been seen with federal officials for centuries, with one notable instance being the Teapot Dome Scandal in 1922 that involved the Secretary of the Department of the Interior granting oil companies lucrative rights to naval oil reserves in exchange for personal “loans” totaling $400,000.^[168] The desire for personal gains by cabinet officials during this scandal allowed for what should have been public oil land to be deeded away to private interests, thereby having a detrimental effect on the environment and, in turn, the people.^[169] A more recent example includes Robert Menendez, the first United States Senator to be found guilty of acting as an agent of a foreign power.^[170] His conviction arises from an international bribery scheme in which Menendez accepted gold and cash in exchange for political favors.^[171] In the words of the United States district attorney whose office prosecuted Menendez, situations such as this are not politics “as usual” but rather politics “for profit.”^[172] “Corruption isn’t costless . . . . It erodes public trust, and it undermines the rule of law.”^[173] From this perspective, it is clearer to see how such crimes of dishonesty have an impact on the people and the legal system as a whole when public officials use their powers to their advantage.

So how, then, does a President’s conviction for a crime of dishonesty similarly affect the people today? The answer lies in the increased risk of continuing to be dishonest through the use of the position’s power, such as the risk of passing executive orders with a secondary motive. For example, the New Deal Era was known as a “heyday” in the number of executive orders issued by Franklin D. Roosevelt (FDR), which reached a total of 3,721 by the end of his terms.^[174] FDR’s use of executive orders was observed to have been a reflection of his own fundamental views, and as many of his orders dealt with major areas such as industrial recovery, the Great Depression, and World War II, it is apparent to see how executive orders have a substantial impact on the people, their lives, and the economy.^[175] As the position of President holds such power to cause these impacts, it is essential to ensure that the one who is holding such a position is not making these decisions for their own personal gain. If the federal government does decide to address such a risk of abuse of power by the President, there are multiple routes it can take to do so.

VI. Addressing the Issue

Federal public officials pose a risk of using their powers to their advantage rather than considering the needs of the people, and that risk is even greater when it comes to the powers of the President. The idea of imposing restrictions is not absurd—almost every state has a statute in place today targeting crimes of dishonesty. If the federal government were to follow suit, what are the possible ways in which it could do so?

A. Option 1: Amend the Constitution

As a starting point, Article II of the Constitution only sets out three qualifications for serving as President: (1) the individual must be a natural-born citizen, (2) at least thirty-five years old, and (3) a U.S. resident for at least fourteen years.^[176] Nowhere in the Constitution is there an explicit mention of felony conviction status or the prohibition thereof in the presidential qualifications.^[177] As a result, the answer to many questions about whether Trump is still eligible to be President after his conviction is yes—seeing as he meets the criteria under the Qualifications Clause.^[178] However, if the federal government were to amend the Constitution to add a fourth qualification stating that the individual may not have been convicted of a crime of dishonesty, the answer would change for Trump.

The complication with this option is that it is “difficult, perhaps even impossible” to amend the Constitution.^[179] The Constitution has only been amended twenty-seven times since its inception in 1787, with the most recent amendment being ratified over thirty years ago.^[180] Article V of the Constitution contributes to this difficulty by laying out only two methods for amendments.^[181] The first method requires Congress to propose an amendment by a two-thirds vote.^[182] The second method requires Congress to call a convention to propose the amendment at the request of two-thirds of the state legislatures.^[183] Moreover, the amendment must also be ratified by either three-fourths of the state legislatures or by three-fourths of state ratifying conventions.^[184] Seeing as Trump won the popular vote and the Republican Party now has control of both the House and Senate, it is unlikely that any of the Article V methods would be successful.^[185] Therefore, the federal government would need to approach a different option.

B. Option 2: Congress Creates a New Law

As Article I of the Constitution states, Congress has the power to make laws.^[186] Congress also has the power to regulate commerce.^[187] The reason why these two statements coincide is because the Commerce Clause is perhaps the most powerful method for Congress to enact laws.^[188] A famous example of this phenomenon is the case of Heart of Atlanta Motel, Inc. v. United States where the Supreme Court held that Congress did not exceed its Commerce Clause powers by extending the antidiscrimination provisions of the Civil Rights Act of 1964 to hotels due to a majority of business coming from customers who were traveling on the highways—thereby having an impact on interstate commerce.^[189] Because of the power of the Commerce Clause in allowing Congress to make laws, the strongest way to implement a law to restrict a convicted felon from holding office as President would be if Congress could justify that the President’s powers have an impact on interstate commerce.

The most effective way to justify this assertion is by looking back to the Youngstown case. Not only does Jackson’s concurrence lay out a framework for the President’s powers, but the facts of the case itself demonstrate what impact the President can have on commerce.^[190] In response to a concern that a steel strike would impede the Korean War effort, President Truman signed an executive order that directed the Secretary of Commerce to seize and operate the steel mills.^[191] The President believed his action was necessary to avoid the stoppage of steel production within the United States.^[192] However, the Court held that this was outside of the President’s powers due to the lack of authorization from Congress.^[193] Nevertheless, Youngstown illustrates that the President’s powers, such as issuing executive orders, can have a substantial impact on the economic activities that affect interstate commerce. By utilizing this reasoning, Congress would have a strong argument for enforcing a law that restricts who can hold office as President. The bigger issue, however, is what problems would arise from such a law.

A top area of concern would be related to presidential immunity. If Congress were to pass a law restricting a person from holding office as President due to a felony conviction, and if that person commits the felony while in office, this would necessarily require an investigation of the President. The first and only case to consider whether a criminal prosecution may proceed against a President for actions taken during his presidency is a case that ironically involves Trump himself.^[194] Following a federal grand jury indictment for various crimes, including election fraud, while Trump was in office during his first term, Trump moved to dismiss the indictment based on presidential immunity from allegations that fell within the core of his official duties.^[195]

By referencing the Youngstown framework, the Court concluded that as for conduct that falls within his “exclusive sphere of constitutional authority,” the President is absolutely immune from criminal prosecution.^[196] However, for conduct that falls within the “zone of twilight” where Congress neither authorized nor forbade the President’s actions, there is at least a presumptive immunity from criminal prosecutions for the President’s official conduct in order to allow him to carry out his duties without undue caution of an investigation.^[197] And as for the President’s unofficial acts, as in, those that are neither enumerated to him in the Constitution nor authorized by Congress, there is no immunity.^[198]

The Trump case offers insight into what the outcome would be if the President were charged with a felony while in office, and while also under a restrictive law implemented by Congress. If the President’s actions constituting the felony fall within his official acts, then there would be a conflict between a Supreme Court decision holding that the President is immune from prosecution and a rule from Congress stating that a convicted felon cannot hold office as President.^[199] However, it is important to recognize that proceedings directly involving the President have been uncommon, and there is likely a rare chance that a case such as Trump would happen again.^[200] Moreover, if Congress were to follow the statutory language of the states by specifically targeting “crimes of dishonesty,” it is also likely that such a narrow specification would decrease the chance of a president having to face prosecution.^[201] A final point to consider relating to statutory language would be for Congress to carve out a time frame providing that only those convicted of a crime of dishonesty prior to their presidential candidacy are ineligible to hold office as President—thereby eliminating the risk of conflict arising from in-office prosecutions. There are various ways for Congress to construct a law that would add such a restriction to the presidency, but one final consideration is whether the law would be necessary to begin with.

C. Option 3: Do Nothing?

Before Trump’s conviction was even confirmed, 40% of voters stated they would be willing to vote for him if he were to be convicted of a crime.^[202] Following his conviction, Trump still managed to win the popular vote by a little over two million votes—presumably with a majority of those voters having at least some background knowledge of the fact that he was a convicted felon.^[203] Even with prior knowledge of Trump’s conviction, a majority of the people voted for him anyway, which leads one to believe that they are unbothered by his felony status. If that is the case, then perhaps Congress should not consider taking the route of passing a restrictive law if electing a convicted felon appears to be what the people want.

Alongside how the people voted, there is also the consideration of how the President’s life is always on display. Unlike lawmakers and judges, the President is in office twenty-four hours a day, seven days a week.^[204] This pressure causes there to be a lack of distinction between what is private and what is public, thereby resulting in the President having “virtually no personal life” while in office.^[205] While this may be bad news for the President, it works out in favor of the people. Because the President’s life is so public, the people will know immediately when he has done something absurd.^[206] And if what he has done inevitably results in a conviction of treason, bribery, or “other high Crimes and Misdemeanors,” then there is a strong possibility that he may be removed from office through impeachment.^[207] The arguably most well-known example of this would be President Clinton’s impeachment for perjury and obstruction of justice following his sexual relations with Monica Lewinsky.^[208]

The idea of impeachment is to prevent a President from continuing to hold office if the President has committed a crime that is particularly incompatible with the position.^[209] However, even with the theoretical safeguard of the Impeachment Clause, there remains the question of whether it is truly functional. Trump himself has been impeached twice—the first time for interference with the 2016 election and the second time for incitement of insurrection following the January 6, 2021, riots—yet neither impeachment trial resulted in his removal from office.^[210] Because of this, while it may seem unnecessary for Congress to make a law that would restrict those convicted of crimes of dishonesty from holding office when the impeachment provision already achieves this goal specifically by targeting “bribery” and “other high Crimes,” Congress must also consider the political polarization in the government today and the risk that whichever party holds power in the House and Senate may inevitably influence the outcome of an impeachment trial.^[211]

Congress holds a powerful segue to creating a law that would prevent a convicted felon from holding public office, and such a law would conceivably be for the betterment of the nation by ensuring honesty in office. However, not only does such a law face possible conflict with the Executive Branch, but it may also be unwarranted and redundant in comparison to the act of impeachment. These are just a few of the many considerations that the federal government must make before moving forward in such an unprecedented moment in this nation’s history.

VII. Conclusion

The disenfranchisement of felons from basic civil processes has been a prominent issue in America for centuries. But while disenfranchisement laws have slowly begun to fade away in the context of voting, some areas might be better if left untouched. Specifically for crimes of dishonesty involving acts such as bribery, embezzlement, or fraud, a majority of the states have already taken a stance that felons of these types of crimes cannot hold public office. Following the unprecedented re-election of President Donald Trump, despite his felony convictions, now may be the time for the federal government to consider following suit with the states. By choosing to allow a convicted felon in office, the government runs the risk of abuse of power to the detriment of the people.

Rachel Reinbolt