Federal Legal Implications of Former President Donald Trump’s Conviction in New York State Court: Frequently Asked Questions
Legal Sidebari
Federal Legal Implications of Former
President Donald Trump’s Conviction in New
York State Court: Frequently Asked Questions
June 5, 2024
On May 30, 2024, former President Trump was convicted in New York state court of 34 counts of
falsifying business records in the first degree in violation of New York Penal Law § 175.10. The
conviction stems from a grand jury’s indictment charging that former President Trump authorized
payment to conceal damaging information about himself in advance of the 2016 presidential election and,
in 2017, approved false entries in New York business records to disguise the purpose of reimbursement.
The offenses, which are felonies under New York law, could (but might not) subject the former President
to a term of imprisonment. Sentencing is currently scheduled for July 11, 2024. The former President can
appeal through the New York court system and could, under certain circumstances, eventually seek
Supreme Court review of the state court conviction. In specific circumstances, he also might be able to
seek habeas corpus relief in state court or federal court.
Although state criminal cases are typically and primarily matters of state concern, Mr. Trump’s status as a
former President and candidate for the presidency in the 2024 election may raise questions about possible
federal legal implications of the New York state conviction. This Sidebar addresses select questions
regarding those implications.
Can former President Trump be a candidate for President as a convicted felon?
Article II, Section 1, clause 5 of the U.S. Constitution sets forth three qualifications for serving as
President, which are the individual must be a natural born citizen, at least 35 years old, and a U.S. resident
for at least 14 years. The constitutional qualifications for the presidency do not address felony conviction
status.
Can former President Trump serve as President if he is incarcerated as of
Inauguration Day?
If the sentence imposed by the judge in the New York case includes incarceration or detention in any form
for former President Trump, and he is elected President and is serving that sentence come Inauguration
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Day, it is possible the Department of Justice (DOJ) would seek his release. The DOJ Office of Legal
Counsel (OLC) has previously asserted that, because the “physical confinement of the chief executive
following a valid conviction would indisputably preclude the executive branch from performing its
constitutionally assigned functions . . . it is clear that a sitting President may not be constitutionally
imprisoned.” As for confinement by a state, OLC’s position is based in Article II, the Supremacy Clause,
and the principle that states cannot “retard, impede, [or] burden” the functioning of the federal
government. While a President-elect Trump would not assume the constitutional duties and powers of
office until January 20, 2025 (Inauguration Day), given the importance of the presidential transition and
the statutory powers and responsibilities vested in a President-elect, either he or the DOJ may seek release
from any confinement at some point after becoming the President-elect but before the inauguration.
The process by which such a release would occur, however, is uncertain. Typically, individuals who
believe they are being unconstitutionally imprisoned can seek their release through a writ of habeas
corpus. Federal law severely limits the availability of this option when an applicant is asking a federal
court to release him from state detention. As a result, former President Trump might need to bring his
habeas petition in state court and convince a state judge that his continued detention by the State of New
York violates the U.S. Constitution. Any decision by the New York state courts would likely be subject to
discretionary review by the U.S. Supreme Court, given the federal constitutional issues involved. In lieu
of judicial proceedings, the DOJ could also urge the governor of New York to exercise the governor’s
clemency powers to effectuate the release if former President Trump becomes the President-elect.
If, following Inauguration Day, a newly sworn in President Trump could not obtain his own release, the
Twenty-Fifth Amendment establishes a process by which the powers of the presidency could be
temporarily transferred to the Vice President during the pendency of the detention.
Could the Supreme Court’s pending decision on presidential immunity in Trump v.
United States impact the New York conviction?
In Trump v. United States, the Supreme Court is considering whether former President Trump is entitled
to immunity from federal criminal prosecution for allegedly attempting to overturn the results of the 2020
election. A decision in that case—which would likely have a substantial impact on the extent to which
Presidents (both sitting and former) enjoy immunity from criminal prosecution for actions taken while
President—may be released in the weeks to come, well before the resolution of Mr. Trump’s appeal of his
recent conviction in New York.
Whether the Supreme Court’s decision in Trump will impact the former President’s conviction in New
York depends on the scope and reasoning of the opinion. Although much of the factual narrative
underlying the New York case occurred during the 2016 presidential campaign, the fraudulent entries that
formed the basis for the 34 counts of falsifying business records occurred in 2017 while Mr. Trump was
President. When the State of New York made it clear that it intended to introduce evidence of Mr.
Trump’s actions and statements while President, including possible evidence of an Oval Office meeting
between President Trump and his then-personal attorney Michael Cohen, the defense sought to preclude
that evidence based on presidential immunity and asked the New York judge to delay the trial and “await
further guidance from the Supreme Court” in Trump. The judge rejected those requests as untimely.
Considering this background, if the Supreme Court were to release a sweeping opinion in Trump—for
example, one that accords Presidents absolute immunity for all acts taken while in office—that decision
might raise questions about the New York conviction. However, both the question presented and the oral
argument in Trump, as well as previous caselaw addressing presidential immunity from civil claims, all
suggest that if the Court recognizes presidential immunity in the criminal context, a narrower decision,
perhaps distinguishing between official and unofficial acts, may be more likely. In that scenario, the
Trump opinion’s possible effect on the New York conviction would depend on what sorts of actions the
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Supreme Court views as giving rise to immunity. While approving or authorizing private business records
may not be the type of official or presidential act that ultimately triggers immunity, a decision that broadly
defines the class of presidential actions to which presidential immunity attaches would have the potential
to inject uncertainty into former President Trump’s potential appeal of his New York conviction.
Could former President Trump be pardoned, or pardon himself if reelected, for the
state conviction?
Article II, Section 2 of the U.S. Constitution authorizes the President to pardon “Offences against the
United States,” excepting impeachment. This limitation means that the President’s power to pardon,
though broad, is limited to federal criminal offenses. The power does not encompass state offenses like
those of which former President Trump was convicted. Accordingly, although the extent to which a
President may pardon himself for a federal crime is unsettled, a President has no authority to issue a
pardon (either to himself or to another) for a state crime. Clemency, if available, would be pursuant to
state law and process.
Is former President Trump still entitled to Secret Service protection as a convicted
felon?
The federal statute covering the duties of the United States Secret Service, 18 U.S.C. § 3056, provides
that the Secret Service is “authorized” to protect, among others, “The President,” “Former Presidents …
for their lifetimes” and “Major Presidential . . . candidates.” Former Presidents and Major Presidential
candidates may decline this protection; a current President does not have this choice. While the statute
couches the duty to protect in terms of authorization to protect, courts have understood that the Secret
Service’s duty to protect is mandatory, unless declined by those individuals permitted by statute to
exercise this option. The statute does not contain language indicating that an individual who may
otherwise receive Secret Service protection may be disqualified from such protection.
Can former President Trump, as a convicted felon, vote in the 2024 federal elections?
State laws determine whether a citizen is disenfranchised from voting in federal (and state) elections
because of a felony conviction. Media reports indicate that former President Trump is registered to vote in
Florida and therefore, Florida law applies. The Florida constitution and state law disqualifies any person
convicted of a felony from voting until all terms of a sentence, including parole and probation, are
completed. Florida state law further provides, for convictions of murder and felony sexual offense or if a
convicted person has not completed all terms of a sentence, that the voting disqualification does not
terminate unless a person’s civil rights are restored pursuant to a provision of the Florida constitution
providing that the governor may grant clemency.
However, a Florida Department of State, Florida Division of Elections website states: “A felony
conviction in another state makes a person ineligible to vote in Florida only if the conviction would make
the person ineligible to vote in the state where the person was convicted.” In New York, the state where
former President Trump was convicted, the law bars felons from voting only during incarceration.
Therefore, if the policy stated by the Florida Division of Elections website is followed, it appears that
former President Trump would be barred from voting only during any period of incarceration that the
New York state court may impose. There is a dispute as to whether the Florida Divisions of Elections
website correctly interprets the Florida Constitution and relevant state law, neither of which specifically
addresses felony disenfranchisement for out-of-state convictions. In addition, the governor of Florida has
stated that if former President Trump is disenfranchised from voting, he would “qualify for restoration of
rights per the Florida Clemency Board.”
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Are there any other criminal cases pending against former President Trump?
At present, former President Trump is a defendant in three other criminal cases. First, he has been charged
in Georgia for allegedly violating a state racketeering law by participating in an enterprise to overturn the
results of the 2020 presidential election. Second, and relatedly, former President Trump has been charged
in the District of Columbia with violating several federal statutes for allegedly obstructing or interfering
with the 2020 presidential election. A third case generally involves the unlawful removal and retention of
certain government records, including classified information, found in former President Trump’s Mar-a-
Lago property in Palm Beach, FL. The Attorney General appointed Jack Smith as special counsel to
oversee the investigation and prosecution of this case against the former President. The special counsel
subsequently filed a superseding indictment, adding additional charges related to obstructing the
investigation.
Author Information
Michael A. Foster
Dave S. Sidhu
Section Research Manager
Legislative Attorney
Todd Garvey
L. Paige Whitaker
Legislative Attorney
Legislative Attorney
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