Early reports that the FBI’s search of former President Donald Trump’s Florida residence was related to an investigation into whether he had illegally taken government files when he left the White House focused attention on an obscure criminal law that prohibits the removal of official records. Penalties for violating that law include disqualification from holding any federal office.
Because Trump is widely believed to be preparing to run for president again in 2024, that unusual sanction raised the possibility that he could be legally barred from returning to the White House.
Specifically, the law in question, U.S.C. Title 18, Section 2071, makes it a crime if someone who has custody of government documents or records “conceals, deletes, mutilates, erases, falsifies, or destroys them deliberately and illegally.
If convicted, defendants can be fined or sentenced to prison for up to three years. Additionally, the statute says that if they are currently in federal office, they will “lose” that office and be “disqualified from holding any office in the United States.”
On the face of it, then, if Trump were to be charged and convicted of deleting, concealing, or destroying government records under that law, he would appear to be ineligible to be president again.
But there was reason to be cautious: The law was briefly scrutinized in 2015, after it emerged that Hillary Rodham Clinton, then widely anticipated as the 2016 Democratic presidential nominee, had used a private email server to conduct government affairs while secretary. of State.
Some Republicans briefly questioned whether the law could keep Clinton out of the White House, including Michael Mukasey, a former attorney general in President George W. Bush’s administration. So was at least one conservative think tank.
But considering that situation, several legal scholars, including Seth B. Tillman of the University of Maynouth in Ireland and Eugene Volokh of the University of California, Los Angeles, pointed out that the Constitution establishes eligibility criteria for who can be president and argued that the Supreme Court rulings suggest that Congress cannot modify them. The Constitution allows Congress to disqualify individuals from holding office in impeachment proceedings, but does not provide such power for ordinary criminal law.
Volokh later reported on his blog that Mukasey, who was also a federal judge, wrote that “upon reflection,” Mukasey had been wrong and Tillman’s analysis was “sound.” (Clinton was never charged with any crime related to her use of the server.)
On Monday, one of the most prominent voices targeting Section 2071, Democratic attorney Marc Elias, who served as general counsel to the Clinton campaign, initially cited the law’s disqualification provision in a Twitter post as “ the really important reason why today’s raid is a potential blockbuster in American politics.”
He followed up with another Twitter post acknowledging that any conviction under Section 2071 might not stop Trump from seeking the presidency again, but arguing that a legal fight over it would still be important.
“Yes, I recognize the legal challenge that the application of this law to a president would generate (since the requirements are established in the Constitution),” he wrote. “But the idea that a candidate would have to litigate this during a campaign is, in my opinion, a ‘blockbuster in American politics.'”
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