Washington —is being arraigned Tuesday on 37 federal felony counts related to his alleged mishandling of classified documents after leaving office.
It marks the first time federal charges have been brought against a former president. This indictment is the second criminal case filed against Trump, and it marks the latest legal challenge the former president is confronting amid his. In early April, Trump in New York and appeared in state court to face of falsifying business records in the first degree. He pleaded not guilty to those charges.
Then, on May 9, Trump wasbrought by columnist E. Jean Carroll, who claimed Trump raped her in a department store fitting room in the 1990s and defamed her when she came forward several years ago. He also denied those allegations. The jury did not find that he raped Carroll, but did find that he sexually abused her, and ordered him to pay her roughly $5 million. The bar for finding someone liable in a civil case is lower than the burden of proof required to secure a criminal conviction, and does not count as a criminal record.
The three cases raise an intriguing question about his bid to retake the White House: can he still become president if he’s convicted in New York or Florida, or now that he’s been found liable in the Carroll case?
The short answer, from a legal perspective, is yes, according to experts.
While charges against a former president and leading contender for a major party’s presidential nomination are unprecedented, there is nothing in the Constitution that prevents someone who has been charged or convicted from seeking or taking office. There is also nothing barring someone found liable in a civil suit from entering the White House.
“It’s pretty widely accepted that the list of qualifications in the Constitution is exclusive — that is, Congress or states can’t add qualifications to those listed in the Constitution,” said Derek Muller, a law professor at the University of Iowa, before Trump’s indictment. “It’s something that really doesn’t affect your ability to run as a candidate, to appear on the ballot, or to even win the election.”
In the criminal case, a New York grand jury was convened by Manhattan District Attorney Alvin Bragg, who has been investigating matters related to amade to the porn star Stormy Daniels shortly before the 2016 presidential election. Michael Cohen, Trump’s then-attorney and “fixer,” made the payment in exchange for Daniels agreeing not to disclose an alleged affair she said she had with Trump a decade earlier, which he denies.
Trump reimbursed Cohen for the payment, and prosecutors zeroed in on the alleged falsification of business records over the reimbursements. Attorney Robert Costello, a Trump ally who says he advised Cohen on legal matters, said hethat Cohen acted on his own accord in arranging the deal with Daniels and was a “totally unreliable” witness.
Special counsel Jack Smith unsealed the 37-count federal indictment against Trump on June 9. The charges against Trump involve 31 records “relating to the national defense” discovered at Mar-a-Lago, according to the indictment, including White House intelligence briefings from 2018 through 2020 related to foreign countries, documents concerning military capabilities of foreign countries and the U.S., a June 2020 document involving a foreign country’s nuclear capabilities, an undated record about U.S. nuclear weaponry and a document from October 2018 concerning the communications with another country’s leader.
Twenty-one of these documents had a “TOP SECRET” classification marking, while nine were marked “SECRET.” The final document bore no marking, according to a chart included in the indictment.
Smith, appointed by Attorney General Merrick Garland in November, has been overseeing the documents probe, as well as a second investigation into efforts to stop the transfer of power after the 2020 presidential election and events related to the Jan. 6, 2021, assault on the U.S. Capitol.
Three sources familiar with the case told CBS News that Trump was indicted on seven counts involving the retention of national defense information, conspiracy and obstruction. The indictment has not yet been made public, and Trump is set to appear in federal court in Miami on Tuesday for his arraignment.
The decisions by local and federal prosecutors to charge Trump sent shockwaves throughout the political world and introduced an unpredictable new dimension to the 2024 race for the GOP nomination.
Legally speaking, however, the Constitution lays out just three requirements to become president: the person must be a natural-born citizen of the United States, 35 years or older and a resident of the U.S. for at least 14 years.
Indeed, candidates with criminal convictions have run for president in the past. There is even precedent for running for president from prison.
Dan Ortiz, a professor at the University of Virginia Law School, pointed to Eugene Debs, who ran for president while behind bars in a federal prison in Atlanta as the nominee of the Socialist Party in 1920. Debs had been convicted of violatingover an anti-war speech. He won more than 3% of the vote nationally.
“I know of nothing that would have barred him from the office if he had won the election,” Ortiz said.
, a fringe candidate who espoused conspiracy theories about an economic apocalypse, ran for president in every election between 1976 and 2004. He was convicted of tax and mail fraud in 1988, but that didn’t stop him from running his campaign from prison in 1992.
Although there may be practical hurdles involved in running a campaign under the shadow of criminal charges, including any restrictions on travel imposed by a judge, there are no constitutional obstacles to participating in the election, according to Muller.
“If you’re convicted of a felony and incarcerated, you can’t vote, but you can win the election,” Muller said. “The point is, there were meant to be very few qualifications, and it was meant to be left to the voters or the state.”
In the wake of the Jan. 6 attack on the Capitol, some House Democratsseeking to bar Trump from holding office again by invoking the 14th Amendment, which bars anyone who has “engaged in insurrection or rebellion” or “given aid or comfort” to enemies of the U.S. after having taken an oath to support the Constitution. That bill never made it out of the House before Republicans took control in January.
Some Trump allies have argued that being charged would actually bolster Trump’s candidacy for the GOP nomination by rallying the Republican base to his defense. Top GOP lawmakers and his rivals for the nomination have been reluctant to criticize Trump directly and have largely framed the indictment as an abuse of power by Manhattan prosecutors.
The former president also faces several other criminal investigations on the state and federal level that could complicate his ability to campaign for the nomination. But none of those cases would technically prevent him from running for or winning the White House, even if he is ultimately convicted.
Melissa Quinn contributed to this report.