Here’s how Donald Trump could theoretically run for president and govern the US from prison, according to 9 legal scholars
The Constitution won’t stop Trump from running, even if he’s behind bars.
But getting elected and running the country from prison would be complicated.
Trump says the FBI searched his Mar-a-Lago residence — and other investigations loom.
Picture this: It’s 9 p.m. on January 13, 2026 — a Tuesday — and you tune in to your favorite cable-news network to watch the president’s annual State of the Union address.
But this year, the president doesn’t take a bulletproof limo from the White House to the US Capitol. Gone are the hundreds of members of Congress traditionally in attendance. Instead, the commander in chief is wearing an orange jumpsuit, his message streamed to lawmakers and into your living room via Zoom from his prison cell.
Yes, this scenario is equally far-fetched and outlandish — in the extreme.
But it’s also possible, law experts told Insider, particularly given former President Donald Trump’s mounting legal woes and his expressed desire to win back the White House in 2024.
Those legal problems intensified in dramatic fashion on August 8 as the FBI reportedly searched his Mar-a-Lago residence in Florida.
The Justice Department is currently scrutinizing Trump’s efforts to overturn the results of the 2020 US election. The National Archives also asked the department in February to investigate if Trump broke the law when he took official government records with him to Mar-a-Lago after leaving the White House. And for months, the US House January 6 select committee has built a decidedly public case that Trump was intimately involved in the deadly attack on January 6 attack on the US Capitol, and did nothing for hours to stop it.
If Trump landed in prison, nothing in the Constitution would block him from another White House run, according to nine legal experts interviewed by Insider.
The Constitution requires only that presidential candidates are natural born US citizens who are at least 35 years old and have been US residents for at least 14 years. And practically anyone — even fictional characters — can take the first step toward the White House by filing organizational paperwork with the Federal Election Commission.
“If he happens to be in prison at the time of the next presidential election, the fact that he’s in prison will not prevent him from running,” said Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law in Chapel Hill.
Running for president from prison has, in fact, been done before — twice.
The Socialist presidential candidate Eugene Debs was incarcerated in a federal prison in Atlanta in 1920 when he won about 3.5% of the national vote. President Warren G. Harding later pardoned Debs, who had been convicted of treason under the Espionage Act for his vocal opposition to US involvement in World War I.
Lyndon LaRouche also ran for president in 1992 from a prison cell after he was convicted of mail fraud in 1988.
Whether Trump could run for president from prison — he has not been charged with a crime despite being the subject of local- and state-level inquiries — is therefore the easy question to answer, according to legal scholars.
From there, matters get more complicated.
Behind bars on the campaign trail
Campaigning from even a minimum-security prison would at best be stilted, and at worst, darn near impossible — especially for a candidate such as Trump who thrives on in-person rallies that draw five-figure crowds.
Somehow convincing tens of millions of Americans that an incarcerated septuagenarian was fit to lead the free world would prove an equally monumental challenge.
But say voters decided to elect an imprisoned Trump anyway.
From prison, Trump “would be subject to the same rules as other prisoners, which could restrict their communications and ability to appear at events,” said Barbara McQuade, a law professor at the University of Michigan and a former US attorney. “He would need to rely on proxies to campaign for him.”
Then there are the chaos-inducing unknowns: Would Trump use his powers to make his life cushier? Would he attempt to pardon himself? How would he defend himself if he faced, say, a third impeachment trial?
Trump has maintained that investigations into his actions, as well as his two impeachment trials, are all part of a “witch hunt” against him and that he’s committed no crime.
“Our Country is broken, our elections are rigged, corrupt, and stolen, our prosecutors are politicized, and I will just have to keep on fighting like I have been for the last five years!” Trump said in a statement in May.
Asked about whether Trump would consider running in 2024 if he were incarcerated, Trump spokesman Jason Miller told Insider in a May 25 email, “This is legitimately the stupidest press inquiry I’ve received in 2021.” Miller has since left his post as Trump’s spokesman to launch a tech startup.
For ballot access, many states of play
If an imprisoned Trump ran for president and won the Republican Party nomination in 2024, this alone wouldn’t guarantee that his name would appear on each state’s ballot that November.
State legislatures, particularly in Democratic-led states, could attempt to pass laws that would make it more difficult for Trump to qualify.
As of February 2017, 18 states had introduced bills that looked at requiring presidential candidates to disclose income-tax returns to be placed on the general-election ballot, according to the National Conference of State Legislatures. Those bills gave Democrats plenty of headlines but didn’t go far.
During the 2020 election, efforts continued. The Illinois Senate, for example, voted to compel Trump to release five years of his personal income-tax returns — he has famously refused to publicly release them — or be barred from appearing on the state’s presidential ballot. The measure never cleared the Illinois House, and therefore didn’t become law.
Ballot-access measures almost always create legal fights. That’s because the US Constitution establishes the requirements to run for president, and changing or adding to those requirements would almost certainly require ratification of a constitutional amendment — a feat that hasn’t been achieved in nearly 30 years.
And any presidential candidate who meets the Constitution’s requirements, then submits the number of qualified voter signatures required by each state, should be eligible to appear on the ballot.
It’s much easier for states to restrict ballot access for state-level candidates, such as former Gov. Rod Blagojevich of Illinois, a Trump buddy who was famously pardoned by the president in February 2020. He served eight years in federal prison after being convicted on public-corruption charges. Blagojevich is barred from holding any local or state office. But federal office is still fair game.
‘Nuclear football’ in an adjacent cell?
In the Oval Office, Trump conducted business at the ornate Resolute Desk. From prison, he’d likely have little more than a metal table.
But Trump could probably do a lot of the chief executive’s job from a prison cell, with some accommodations, according to legal scholars.
First, he could take the oath of office there, as nothing within the Constitution requires a president to be at any particular location, Laurence Tribe, a constitutional-law professor at Harvard University, said.
President Lyndon B. Johnson took his oath aboard Air Force One in 1963 after the assassination of President John F. Kennedy.
After taking the oath, Trump could theoretically do from a prison cell many of the things presidents normally do from the Oval Office, Tribe said. He could issue pardons, veto bills, issue executive orders, sign legislation, and make political appointments.
“Some presidents have described the White House as a prison, but the Constitution doesn’t specify that that’s the only prison you could occupy in order to serve as president,” Tribe added.
One constitutional requirement for a president is a periodic State of the Union address to Congress.
But they don’t need to be delivered in person. From 1801 until 1913, presidents gave written messages to Congress instead of delivering in-person speeches.
So it’s possible that Trump could deliver the address via Zoom while wearing orange prison garb, Tribe said.
Another logistical question: What would happen to the “nuclear football,” a briefcase that’s supposed to stay near the president and holds the codes needed to launch an attack, Tribe said.
“Would the military aide who carries the briefcase be in an adjacent cell?” he asked, rhetorically.
What’s quite likely is that US Secret Service agents would protect an imprisoned Trump, according to former federal law-enforcement officials.
Being the president comes with some powers that could help Trump improve his situation, scholars said.
But that depends a lot on where he winds up.
If he wound up in federal prison, he’d likely have more sway over his fate. He could attempt to issue a presidential self-pardon, but that’s never been tested, and it’s legally murky whether that would hold up in court.
As president, Trump would technically oversee the Federal Bureau of Prisons. So if he were in federal custody, Trump could look for loopholes to improve his setup.
“I assume he could designate the White House” as a Bureau of Prisons facility where “he’s the only inmate,” Frank Bowman, a law professor at the University of Missouri, said.
But if Trump were convicted of a state crime, federal-level executive powers wouldn’t do much. Pardon power varies by state, and Trump’s freedom could be in the hands of a governor or state parole board.
“There is a possibility for state charges of the governor pardoning him,” Brian Kalt, a law professor at Michigan State University, said.
Trump and his businesses are party to more than a dozen different significant investigations and lawsuits, many at the state level. Two states in particular — Georgia and New York — are the sources of Trump’s greatest state-level legal peril.
In New York, Democrat Kathy Hochul is governor and is strongly favored to win a four-year term in office come November. Rep. Lee Zeldin, a New York Republican who played a key role as a surrogate defending the president during his first Senate impeachment trial in 2020, is running against Hochul.
Hochul would all but certainly reject calls to cut Trump legal slack in any fashion, pardons included.
In Georgia, Trump is facing a criminal investigation over his attempts in the state to overturn the 2020 election results. Fulton County District Attorney Fani Willis said she could reach a decision on whether to charge Trump criminally as early as this autumn.
An independent state board handles pardon decisions in Georgia. Members of the Georgia parole board are appointed by the governor for seven-year terms, and all five members of the board were appointed by Republican governors.
While Trump would be able to appear on a ballot, he might not be able to vote from his prison cell. In Georgia and New York, voting rights for people convicted of felonies are lost until the completion of a sentence. Sixteen other states follow the same rules.
Enter the 25th Amendment
If a president is in prison, would he be “unable to discharge the powers and duties” of his office?
That’s a question that would certainly be raised, and one that would bring the 25th Amendment — which covers presidential disability and succession — into the equation.
“I guess a very credible argument could be made that he is disabled under the plain language of that amendment,” Gerhardt said.
Trump could theoretically hand over power to his vice president for an extended period of time if he wanted to declare himself unable to serve as commander in chief. That vice president “could be his son, or whoever else that happens to be,” Gerhardt said.
Alternatively, the 25th Amendment includes a mechanism for the vice president and a majority of the Cabinet to declare the president unfit for office. He would be removed only if two-thirds of both chambers of Congress voted to do so. It’s a steep hurdle, and legal experts said it was extremely unlikely that Trump’s vice president and Cabinet would agree to boot him from office.
Another option: yet another Trump impeachment. House lawmakers have already impeached Trump twice, only for the Senate to acquit him both times. Removing a president after impeachment could be easier than using the 25th Amendment because it would require only a majority of the House and a two-thirds vote in the Senate.
Lawmakers pushing to impeach Trump would confront questions about whether a president could be impeached for things they did before taking office or for conduct during a previous term, Bowman said.
Another snag for Trump could be the 14th Amendment. A section of that amendment blocks people from holding federal office if they “engaged in insurrection or rebellion” or gave “aid or comfort” to enemies of the US. But experts said it was unclear whether that Reconstruction-era amendment could be used to bar Trump from a presidential comeback.
The criminal charges that prosecutors are discussing don’t deal with the insurrection at the US Capitol, “so that’s sort of off the table,” Kalt of Michigan State University said.
While the prospect of Trump winning the presidency from prison sits somewhere between implausible and impossible, Trump is nothing if not notable for defying odds.
“This president throughout his public career — short as it has been — has reminded us that there are things we would have regarded as unthinkable before that are not only thinkable but happen,” Tribe said.
“It’s probably not as outlandish as I think it is,” Gerhardt said. “You can’t say ‘never’ anymore.”
Conservative attorney and Trump critic George Conway suggested on Twitter that Trump might even be more likely to run in 2024 if he’s in prison because being elected might help him get out.
This article was originally published on May 26, 2021, and since updated to reflect new developments.
Read the original article on Business Insider