The second indictment of former President Donald J. Trump — this time over his hoarding of sensitive government documents — adds to the unusual questions raised by the spectacle of someone running for president while facing charges.
The indictment — and any conviction — would not bar Mr. Trump from running.
Nevertheless, it would be extraordinary for a person who is under indictment, let alone convicted of a felony, to be a major party nominee.
There are only a few historical examples of somewhat serious candidates who even come close. They include the unsuccessful run in the 2016 Republican primary by Rick Perry, the former governor of Texas, after he was indicted on charges of abuse of power (the charges were dismissed months after he dropped out of the race), and the 1920 run by Eugene V. Debs as the Socialist Party nominee while he sat in prison for an Espionage Act conviction.
If Mr. Trump were to be elected president while a felony case against him was pending or after any conviction, many complications would ensue.
The Justice Department has in the past taken the position that even indicting a president while in office would be unconstitutional because it would interfere with the president’s ability to perform duties as head of the executive branch. Mr. Trump would surely try to get the case dismissed on that basis. There is no definitive Supreme Court ruling because the issue has never arisen before.
Notably, in 1997, the Supreme Court allowed a federal lawsuit against President Bill Clinton to proceed while he was in office. That was a civil case, however — not a criminal one. Mr. Trump also faces a state case, an indictment in Manhattan in April, where he is accused of falsifying business records related to a hush-money payment.
Even more extraordinary complications would arise were Mr. Trump to be convicted and incarcerated and yet elected anyway. One possibility is that he could win a federal court order requiring his release from prison as a result of a constitutional challenge. Another is that upon the commencement of his second term, he could be immediately removed from office under the 25th Amendment as “unable to discharge the powers and duties of his office.”
