The election of a prisoner as President of the United States would be an unprecedented event that could raise complex legal and constitutional questions. This article will comprehensively examine the hypothetical scenario of a candidate winning the presidency while incarcerated, the legal issues it could create, historical context, and potential outcomes.
Could A Prisoner Actually Be Elected President?
The Constitution does not outright prohibit the election of a prisoner as president. Article II, Section 1 states:
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.” [1]
It does not specify that candidates cannot be incarcerated or have a criminal record. The fundamental requirement is that the president be a natural-born U.S. citizen over age 35. On the surface, a prisoner could potentially meet these qualifications and be eligible for election.
However, legal experts point out that each state has individual laws that govern ballot access and the restoration of civil rights for convicted felons. Many states prohibit incarcerated felons or ex-felons on parole/probation from voting, much less running for office. These state-level restrictions could prevent a prisoner from practically getting on the ballot in enough states to have a chance at winning the Electoral College. [2]
So while the Constitution itself does not prohibit the election of an incarcerated president, the complex patchwork of state laws limiting felon voting and ballot access rights make such a scenario highly unlikely in reality.
Historical Precedent
There is no precedent in American history for the election of an incarcerated president. No current or former prisoner has ever come close to seriously contending for a major party nomination, much less the presidency itself. [3]
The case of Socialist Party candidate Eugene V. Debs offers some parallels. In 1920, Debs ran for president from prison while serving a 10-year sentence under the Sedition Act. He was convicted and incarcerated in 1918 for giving an anti-war speech criticizing U.S. involvement in World War I. [4]
Despite receiving over 900,000 votes nationally, Debs did not come close to being elected. His campaign is viewed historically as more of a protest against the federal government rather than a realistic bid for the presidency. Nonetheless, it illustrates that it is possible for someone to run for president while in prison, though they face tremendous obstacles.
Beyond this example, the scenario remains largely theoretical. No prisoner has ever come close to winning a major party nomination or being elected to the presidency in any capacity.
What Would Happen If A Prisoner Actually Won?
The election of an incarcerated president would trigger significant uncertainty around how it would work in practice. There is no set legal process or constitutional guidance for such an event.
Inauguration
One immediate issue would be having a prisoner take the Oath of Office on Inauguration Day, as mandated by Article II, Section 1 of the Constitution. [1] In order for a president-elect to assume the powers of the presidency, he or she must recite the oath on January 20 after the expiration of the previous presidential term.
This would raise logistical challenges for an incarcerated president-elect. They may need to arrange to take the oath inside the prison where they are being held. Security issues would also be a major consideration for such an unprecedented event.
It is possible inauguration could be delayed while these issues get resolved by legal teams and government officials. However, delaying the oath taking also raises constitutional concerns, as there must be a sitting president at all times. The 20th Amendment states the incumbent president’s term ends January 20 at noon. [5] There is no provision for extension if the president-elect were unavailable to be sworn-in on time.
Release From Prison
Ultimately, the new president would almost certainly need to be released from prison in order to physically perform the duties of the office and execute its powers. This could potentially be accomplished by presidential pardon or commutation of the sentence.
Article II, Section 2 of the Constitution gives the president broad clemency powers:
“[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” [1]
Using this power, the president could potentially pardon themselves or commute their own sentence upon taking office. Their ability to self-pardon remains untested legally, but the expansive language of Article II makes it plausible. They could also potentially negotiate a pardon or commutation from the previous outgoing president during the transition period.
Federal pardon powers only apply to federal offenses though. If the president-elect were incarcerated on state charges, it could complicate efforts to secure release. They may need to work with state governors and agencies to get exonerated or released on a commuted sentence.
Without release, it is doubtful they could execute the full duties of the presidency from within prison. There are also concerns that ongoing incarceration during the presidency could violate separation of powers principles by impeding the head of the executive branch.
Disability Clause
Another related constitutional provision is the 25th Amendment’s disability clause. Section 3 states:
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.” [6]
In theory, an incarcerated president could invoke this clause to transfer powers to the vice president if their imprisonment prevented them from properly discharging duties. They could resume exercising the powers of the presidency upon their written declaration of fitness and release from prison.
However, Section 4 also allows the vice president and cabinet to challenge the president’s declaration that no disability exists. So it could set up a complex legal fight over fitness for office if the president did not voluntarily transfer powers while incarcerated.
Impact on Policies and Priorities
Beyond the immediate legal quandaries, the election of a prisoner would also raise questions around governance and policy direction. For example:
- Would an agenda focused on criminal justice reform be more likely, given the president’s firsthand experience with the prison system?
- How would it affect public perceptions of the federal government’s legitimacy and moral authority if the head of the executive branch remained incarcerated?
- Could it impact issues like national security if classified intelligence briefings need to be given inside a prison?
- Would there be greater interest in reforms to the pardon power and clemency process?
The unusual scenario could significantly shape the policy agenda and public attitude regarding the federal government.
Can A Prisoner Run For President?
The short answer is yes, a prisoner can technically run for president. The US constitution sets forth only a few basic qualifications for presidential candidates:
- They must be a natural born US citizen.
- They must be at least 35 years old.
- They must have been a US resident for 14 years.
There are no other requirements for running for president. The constitution does not prohibit prisoners, felons, or those convicted of crimes from being presidential candidates.
Several prisoners have run for president over the years, though none have ever come close to winning a major party nomination or general election. Notable prisoners who ran include:
- Eugene V. Debs: Debs ran for president in 1920 from prison and won 3.4% of the popular vote as the Socialist Party nominee. He was imprisoned for sedition during World War I.
- Lyndon LaRouche: Ran for president in 1992 and 1996 from prison on mail fraud and conspiracy charges. He did not receive any electoral votes.
- Keith Russell Judd: Ran for president in 2012 from prison and won 41% of the vote in the West Virginia Democratic primary, although President Obama was unopposed. Judd was serving time for extortion.
So while it’s legally permitted, the chances of a prisoner actually winning the presidency remain slim to nonexistent. But if it did somehow happen, things would get complicated.
Can A Prisoner Take Office If Elected?
This is where things get murky. The constitution does not directly prohibit a prisoner from becoming president. But Section 3 of the 20th Amendment states:
“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President.”
Some legal scholars interpret this to mean that any “inability” of a president-elect to take office, whether due to death, physical impairment, or incarceration, would disqualify them from the presidency. The vice president elect would then immediately become president on inauguration day.
However, there is no definitive consensus on this interpretation. There has never been a test case of an elected president who was unable to take the oath of office on inauguration day.
Ultimately, if a prisoner was somehow elected president, it would likely need to be settled by the courts, potentially all the way up to the Supreme Court. Legal experts think the courts would likely bar an incarcerated president-elect from taking office, citing the 20th Amendment. But a minority of constitutional scholars argue that imprisoning the president elect would be an unconstitutional restriction of voters’ rights.
Either way, this constitutional gray area has never been resolved with a real case. The improbable election of a prisoner would spark an unprecedented legal battle.
What If The Prisoner Refused To Concede The Election?
If a prisoner won the presidential election but was prohibited from taking office, some theorize they may refuse to concede the election. They could claim to be the rightful president, creating a constitutional crisis.
This would be an extraordinary situation. The Secret Service would protect the legal acting-president in the White House. But the prisoner may still assert they are commander-in-chief of the military. They could try to give orders or pardons, arguing the courts were unconstitutional in blocking them from power.
However, the military and other federal agencies are highly unlikely to recognize or follow any orders from anyone other than the lawful president in the White House. While the situation would be highly destabilizing, the prisoner’s claims to power would have no de facto authority.
But the prisoner could still create chaos by refusing to accept the courts’ rulings. Even if not obeyed, their illegal orders could call into question the military’s chain of command. The rejection of the election’s outcome by a significant portion of voters could also spark massive protests, dividing the country.
It would be an unprecedented constitutional mess that could undermine faith in the rule of law. There are no easy or obvious solutions. The ultimate resolution would depend on rulings from the courts and action from Congress.
How Would Presidential Powers Be Handled?
If the president-elect is deemed unable to take office, the 20th Amendment states the vice president elect shall become president. This means the presidential powers would immediately transfer to the new president on Inauguration Day.
However, it’s unclear if the elected but invalid president could still appoint a vice president, since they never officially took office. To avoid this dilemma, it’s likely Congress would pass legislation ensuring the presidential line of succession moves to the speaker of the house.
Congress could also pass a law codifying that the president elect’s powers are transferred to the vice president elect if they cannot take office. This would minimize confusion by firmly establishing a legal basis for the vice president assuming office.
Additionally, Congress may need to pass judgment on any pardons or executive orders issued by the unelected prisoner after the election. These could potentially be viewed as invalid.
With no direct precedent to follow, the handling of presidential powers in this bizarre scenario would largely rely on new legislation from Congress and rulings from the Supreme Court. It would likely be a complex and highly controversial political battle.
Could The Prisoner Be Released To Take Office?
If a prisoner is elected president, would there be pressure to release them so they can properly take office? Could the president pardon themself to secure their own release?
It’s highly unlikely. First, there are legal questions about a self-pardon – no president has ever attempted to pardon themselves, so the law is untested. Most legal experts think courts would strike down a self-pardon as unconstitutional.
Even if legally valid, a presidential self-pardon would probably not release them quickly enough to take office on Inauguration Day. The typical pardon process takes months or longer, and would face extensive delays and challenges in this unprecedented case.
For the prisoner president elect to take office, they would likely need a full pardon and commutation of their sentence from the outgoing president during the transition. But if the prisoner’s crimes were severe, the outgoing president would face immense public and political pressure to not pardon them.
Commuting a prison sentence solely to make someone eligible for the presidency would be an extraordinary and contentious use of the pardon power. For most realistic scenarios with an incarcerated president elect, their release from prison to assume office seems unlikely.
Could They Serve As President From Prison?
Even if courts prohibit a prisoner from officially taking office, some scholars argue they could still potentially serve as president from within prison. This would be uncharted legal territory, but raise some difficult questions:
- Would the Secret Service be required to protect them in prison?
- Would they receive national security briefings and control nuclear launch codes?
- Could they sign legislation and make appointments?
- Would they retain powers like the pardon authority?
Opinions are divided on what rights and powers an elected but invalid president could legally retain while imprisoned. It would likely be disputed in the courts.
The other branches of government would almost certainly resist or ignore any orders given from a president in prison. So their functional powers as commander-in-chief would be nonexistent.
But simply the legal status of being president while incarcerated could make it extremely difficult to maintain order in the military, conduct foreign affairs, or even pass legislation. The situation could create lingering chaos and uncertainty until the next election.
Could The 25th Amendment Be Invoked?
The 25th Amendment provides procedures for when the president is unable to perform their duties. If a president elect is deemed unable to take office, it likely constitutes an inability. This means the vice president would immediately become acting president under Section 3 the 20th Amendment on inauguration day.
However, if a prisoner did somehow take office, the vice president and cabinet could later invoke the 25th Amendment to declare them unable to discharge duties. This would make the vice president the acting president, removing powers from the incarcerated president.
Congress could also use provisions in the 25th Amendment to remove the president if both the House and Senate agreed they are unfit for office.
While the 25th Amendment is typically considered for medical emergencies, its broad phrasing likely allows it to be applied in extraordinary cases like an imprisoned president. It would provide a legal process for stripping powers when there is disagreement over the president’s fitness to serve while incarcerated.
What Crimes Would Trigger These Issues?
Not all criminal convictions would necessarily prevent someone from becoming president. Minor crimes like low-level drug offenses or nonviolent protests would likely not warrant blocking a duly elected president from office.
But violent felonies, national security crimes like espionage, or ongoing criminal enterprises would almost surely trigger court intervention. These types of major crimes would meet the threshold of making the president unable to fulfill duties.
Additionally, a president convicted while in office (through impeachment) would be barred from exercising powers and automatically removed, regardless of the specific offense. A president-elect convicted prior to inauguration, however, has no automatic disqualification.
Still, the severity, timing, and nature of crimes would factor heavily into whether courts allow a convict to assume office. Those details would also influence if and when the 25th Amendment could be invoked for an imprisoned president. But again, with no precedent, each scenario would be subject to interpretation.
Could Congress Impeach And Remove The Prisoner?
If the president-elect actually took office while incarcerated, Congress could potentially use the impeachment process to remove them from power. The Constitution allows impeachment for “treason, bribery, and other high crimes and misdemeanors.”
A president convicted of major offenses could likely be impeached on the same grounds that made courts deem them ineligible to take office beforehand. Conviction in the Senate on these articles of impeachment would trigger automatic removal from office under the Constitution.
However, impeachment requires agreement from both the House and a two-thirds supermajority in the Senate. That high bar may be difficult to reach if there are factions who still support the incarcerated president claiming an unlawful coup. But Congress has never had to use impeachment to remove a president already in prison, so predicting the outcome is impossible.
Are There International Examples?
There is no precedent for these scenarios playing out in the United States before. But other countries have faced similar constitutional crises that illustrate the chaos imprisoned leaders can unleash:
- In South Korea in 1996, both the president and presidential front-runner were imprisoned amid corruption scandals. The president pardoned the candidate to allow him to take office upon election, sparking major protests and instability.
- In Brazil in 2018, popular former president Inácio Lula da Silva was barred from running for reelection due to a corruption conviction. His supporters claimed the charges were politically motivated to prevent his victory.
- In Egypt in 2012, presidential candidate Ayman Nour was imprisoned before elections, which he claimed was a trumped up conviction to block him from challenging Hosni Mubarak’s rule.
These examples and others demonstrate how convicting or blocking candidates can undermine elections and democratic stability in fragile political systems. While US institutions are stronger, a prisoner winning the presidency could still potentially spark chaos.
Conclusion
While the Constitution does not outright prohibit the election of a prisoner as president, the complex legal issues and state ballot access barriers make such an event highly unlikely in practice. There is no precedent of a prisoner either winning a major party nomination or coming remotely close to the presidency itself.
The election of an incarcerated president would spark constitutional crises around the inauguration, release from prison, and execution of duties. It would require navigating largely untested areas of law like self-pardons, commutations, and the disability clause. Even if legal release were achieved, it could create ongoing debates about fitness for office and legitimacy.
Regardless of the legal uncertainties, the election of a prisoner would undoubtedly shape public attitudes and the policy agenda. It would raise new philosophical questions around governance, justice, and the relationship between the presidency and the criminal justice system. While the scenario remains hypothetical, it prompts examination of deeper issues around American democracy and the nature of the presidency itself.
References
- Article II, Section 1, U.S. Constitution. https://www.law.cornell.edu/constitution/articleii
- Prison Policy Initiative. https://www.prisonpolicy.org/reports/felonvoting.html
- Dave Leip’s Atlas of U.S. Presidential Elections. https://uselectionatlas.org/
- Eugene Debs. The White House. https://www.whitehouse.gov/about-the-white-house/presidents/eugene-v-debs/
- Amendment XX, U.S. Constitution. https://www.law.cornell.edu/constitution/amendmentxx
- Amendment XXV, U.S. Constitution. https://www.law.cornell.edu/constitution/amendmentxxv