'Everything which is not forbidden is allowed' mentality is US-centric


I am a newly admitted lawyer in the state of California, and I was a lawyer for three years in Turkey (a country with slightly more than the population of California and Texas). Because I now practice law in California, I have been fielding a lot of questions from Turkey about the U.S. presidential race and the qualifications for becoming president.


Former President Trump's New York State felony convictions


The Republican presidential nominee Donald J. Trump was convicted in New York state court in May 2024 of 34 felony charges relating to the falsification of the Trump company's business records.


According to the New York indictment, in the run-up to the 2016 U.S. presidential election, then-candidate Trump participated in a scheme to camouflage payments made for sexual services so that they would appear to be legitimate presidential campaign expenses. President Trump's New York sentencing proceeding is scheduled for Sept. 18, 2024.


Pursuant to the Consolidated Law of New York Ch-40 - Articles 70.00 and 174.10, falsifying business records in the first-degree is a class E felony. As a result of the jury's verdict, the Republican presidential nominee faces the possibility of a sentence (per count) ranging from probation to four years of imprisonment.


For the 34 convictions, the sentence imposed could be as little as a minimum of a no-jail-time sentence, or if aggregated, a maximum sentence of 136 years imprisonment.


This is the first time in American history that a former U.S. president has been convicted of a felony and that a major-party (Republican or Democratic) presidential candidate is facing a sentencing proceeding while running for the U.S. presidency.


Over 100 years ago, in the presidential election of 1920, a third-party candidate, labor and anti-war activist Eugene Debs ran for the presidency while serving time in a Georgia prison. Debs (who had been sentenced for the crime of sedition, specifically making anti-war statements while the U.S. was engaged in World War I) capitalized on his imprisoned status. In fact, some of his supporters wore political pins with Debs' name and prisoner number on them: "Convict No. 9653 for President."


Although Warren G. Harding (a Republican) won that race and became America's 29th president, Debs received almost one million votes of a total popular vote of some 27 million.


Presidential candidates Trump and Debs appear to be similarly situated. However, each has approached his respective indictment differently. Debs proudly and loudly admitted his "criminality." At Debs' sentencing, Debs told the court that he stood by his words and asked for no immunity.


In contrast, former President Trump (who has consistently contested the hush money falsification charges), has sought immunity in other criminal cases, in other jurisdictions in which he has been charged, and the U.S Supreme Court on July 1, 2024, granted the former president partial immunity (for official acts within the president's constitutional authority) in Mr. Trump's insurrection facilitation prosecution.


The former president now seeks to undo the New York jury's verdict based on the high court's immunity decision.


The parameters of a former American president's powers have global import. What is happening in the current campaign for the U.S. presidency has attracted the attention of those in my home country to include those in my undergraduate and law school institutions. This article is for them, and you - Daily Journal readers. 


The race for the U.S. presidency


As I have explained to my colleagues afar, nothing in the U.S. Constitution or in any other American law prevents a candidate for the U.S. presidency from running for or assuming the post of president on the grounds that the candidate has been charged or convicted of a crime.


Article II, Section 1, paragraph 5 of the U.S. Constitution provides that a candidate for the presidency must be at least 35 years old, a natural-born citizen, and with a 14-year period of residency within the United States. That constitutional provision does not explicitly make clear whether the 14 years must be fulfilled continuously or whether it can be fulfilled cumulatively, with non-consecutive periods. Art. II's constitutional provisions concerning residency qualifications for president were raised during the 2008 presidential election between Republican candidate Senator John McCain (R) and then-senator Barack Obama (D).


Senator McCain's eligibility to run for presidency was at issue since McCain was born in the Panama Canal zone where McCain's father (a Naval officer) and mother were stationed.


Ultimately, federal legislation resolved any questions about McCain's satisfaction with the constitutional residency provisions. A bi-partisan U.S. Senate put an end to any debate on McCain's qualification and considered McCain under all circumstances a natural-born U.S. citizen. Thus, Senator McCain from all quarters was deemed to have the constitutional qualifications to ascend to America's presidency.


What is surprising to many of my fellow lawyers in Turkey is that the U.S. Constitution is silent on the subject of disqualification in running for or assuming the office of the presidency resulting from the filing of criminal charges or convictions.


As I have explained to those in Turkey, the common law maxim "everything which is not forbidden is allowed" is applicable here. This maxim permits former President Trump not to just run for the office of the presidency but also to become president again - should he win. 


Having studied the Federalist Papers (mostly written by founding father Alexander Hamilton to encourage the former colonies to agree to adopt the 1787 Philadelphia Constitution), it appears to have been a given that those seeking political office in the break-away new nation would be honorable and have honorable motives. This has been interpreted to mean having honorable motives or behavior, as well as having virtue for the common good.


But being honorable (meaning someone who has not committed crimes or misconduct and/or who places the well-being of the community over the well-being of oneself) appears to be implicit in the framers' understanding of the role of the U.S. chief executive. In accordance with Art. I, section 9, clause 8 of the U.S Constitution, the framers made clear that this person would never be addressed by the honorific of king.


The framers' debate in 1787 about whether to include an affirmative list of rights or whether to assume that rights were implicit, and which resulted in the 1791 ratification of the first ten amendments in the Bill of Rights, seems to have taken up much of the bandwidth of the framers. Given that dueling (drawing pistols to defend honor of oneself or another) was in practice during the time of the framers and Hamilton himself would die in New Jersey in 1804 defending his honor in a duel, it seems implicit that the framers conceived of "honorability" as a qualification for the presidency.


Hamilton, in his Federalist Paper #68, indicates this by stating that "... there will be a constant probability of seeing the station (the presidency) filled by characters pre-eminent for ability and virtue." Acting honorably was also a condition precedent to becoming a federal judge. In Federalist Paper #78, Hamilton wrote that federal judges would have an independent spirit that is critical for the faithful performance of their duty.


It is not a stretch to imagine that the framers would have thought that committing felony crimes (to include the falsification of records) would have been disqualifying dishonorable conduct.


Turkey's presidential candidates and presidents must exhibit honorable behavior


Turkey, my home country, also has presidency age requirements as well as an education criterion. According to Article 101, paragraph 1 of the Constitution of Turkey, the president is elected among Turkish citizens who are above forty years old, have completed higher education, and are eligible to be elected as members of parliament. Therefore, a presidential candidate must first satisfy the criteria of being a member of parliament.


Regarding membership of parliament, Article 76, paragraph 2 of the Turkish Constitution contains the following regulation: "Persons ... who have been sentenced to a prison term totaling one year or more excluding involuntary offences, or to a heavy imprisonment; those who have been convicted for dishonourable offences such as embezzlement, corruption, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy; and persons convicted of smuggling, conspiracy in official bidding or purchasing, of offences related to the disclosure of state secrets, of involvement in acts of terrorism, or incitement and encouragement of such activities, shall not be elected as a deputy, even if they have been granted amnesty."


The Turkish Constitution does not permit a person convicted with certain criminal charges to become a candidate for presidency. In fact, the Turkish Constitution disallows a presidential candidate charged with one year or more of imprisonment. As such, committing crimes classified as "shameful (dishonorable)," including fraud, voids a person's candidacy. 


The modern Turkish Republic was founded over 100 years ago, on October 29, 1923. This occurred after the collapse of the Ottoman Empire in 1922, and after the Turkish War of Independence in the aftermath of World War I.


Turkey's first modern leader known as "Mustafa Kemal Atatürk," who had served as a commander of the Turkish resistance, encouraged the creation of a constitution. Then, the Turkish Republic created its founding document- a constitution in 1924.


Atatürk told the Turkish parliament that their greatest accomplishment is the Turkish Republic, founded on Turkish heroism and the rich Turkish culture. He also stated, "The Turkish nation possesses excellent character and intelligence, and it carries the torch of positive sciences." The Turkish Constitution (1924) has been modified a few times since its debut, the last time in 1982.


With some modest differences, the current constitution affirms and preserves Ataturk's core principles. In all versions of the Turkish constitution, criminal convictions of a candidate would be disqualifying. Articles 12 and 31 of the 1924 Constitution, which bar people convicted of certain crimes from being president or a member of parliament, remain as articles 76 and 101 of the 1982 Turkish Constitution. 


The Preamble of the 1982 Constitution states that it aligns with Atatürk's reforms and principles. Additionally, the Preamble ensures that activities contrary to Turkish national interests, Turkish existence and indivisibility, and the historical and moral values of Turkish identity, as well as the nationalism, principles, and reforms of Atatürk, are not protected.


Article 2 of the Constitution defines the Turkish Republic as "a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, ..."


Further, Turkey's bar on criminals ascending to the Turkish presidency is designed to protectthecore Constitutional values of the Turkish Republic. The constitution includes the duty of providing welfare, peace, and happiness of society, and to remove any obstacles that restrict fundamental rights and freedoms, in accordance with justice and the rule of law. 


Turkey's first president, Atatürk, embodied the honorable qualities envisioned by the Turkish constitution. He implemented reforms such as replacing the Arabic alphabet with the Latin alphabet, adopted surnames and received the surname Atatürk ("Father of the Turks"), and transformed the legal system by adopting civil, penal, and commercial codes based on European models. He also promoted regulations that allowed women to vote in parliamentary elections. Atatürk and Hamilton appeared to share similar ideas about the qualifications and characteristics necessary for those serving in positions of power in their nations.


Turkey and the U.S. have different views on presidential qualifications and eligibility. Although the United States does not bar a felon from running for or assuming the office of the American presidency, Turkey does. As someone with ties to both countries and who is part of the legal profession, I have a few hunches about which country approaches this situation best. Time will tell.