WASHINGTON — The FBI search of former President Donald Trump’s Florida residence has raised questions about whether a criminal investigation could hinder his ability to become president again, even if he chooses to run in the 2024 election.
Any punishment under criminal law that appears to be related to an investigation involves an unusual penalty: disqualification from holding any federal office. But there are reasons to be cautious before concluding that if Trump was charged and convicted under that law, he could not legally return to the White House, even if voters wanted him to.
Here’s a more detailed analysis of the case, starting with the most basic.
What was the origin of the search warrant?
The Justice Department has declined to comment. But by its very nature, a warrant means that a criminal investigation is underway. Early reports, citing sources familiar with the matter, have indicated that the criminal investigation behind the search warrant is related to suspicions that Trump illegally took government files when he left the White House.
Earlier this year, the National Archives recovered 15 boxes taken from Trump’s White House residence to Mar-a-Lago home when his term ended, saying it found classified information in some Went.
But it is not clear whether Trump has given up everything. In a statement condemning the FBI’s action on Monday, Trump said law enforcement officers “even broke into my vault.”
What laws apply to document extraction?
There are a number of laws that could potentially cover such a situation. For example, the Espionage Act, which criminalizes unauthorized withholding of defense information that could be used to harm the United States or aid a foreign adversary, carries a prison sentence of up to 10 years per offense. fine is imposed.
But the law that has attracted particular attention is Section 2071 of Title 18 of the United States Code, which makes it “concealing, deleting, mutilating, erasing, falsifying, or destroying” anyone in custody of government documents or records. creates crime. illegally. Section 2071 is not limited to classified information.
If convicted under that law, defendants could face fines of up to $2,000 and up to three years in prison. In addition, the statute states that if they are currently in federal office, they will “lose” that office and, perhaps more significantly, given widespread expectations that Trump will seek re-election—any federal office. will be “disqualified from catching”.
How can a sentence affect the next elections?
If Trump was charged and convicted under Section 2071, voters or rival candidates in the state primary for the 2024 Republican presidential nomination could challenge his eligibility for that office by asking that his name be on the primary ballot. be removed from
Each state conducts its own elections, so the exact process will vary. But usually, the challenge comes before the state election board first. The board’s decision can be appealed in the state court system, the result of which can be appealed to the Supreme Court.
How can exile on a ballot be challenged?
On the ground that the disqualification provision of section 2071 is unconstitutional as it pertains to the office of the President.
Article II of the United States Constitution establishes three criteria for presidential eligibility: one must be a “natural born citizen”, be at least 35 years old, and be a resident of the United States for at least 14 years.
Since the Constitution takes precedence in a conflict between federal law and federal law, the argument would be that Congress does not have the authority to change that list of criteria, for example, not guilty of illegally taking government documents. add to the need. ,
Specifically, the Constitution authorizes Congress to disqualify individuals from holding federal office as punishment for convictions in impeachment proceedings. But nothing in the text of the Constitution states that legislators can use ordinary criminal law to do so.
What have the courts said?
The Supreme Court has never ruled a presidential candidate whose qualifications have been questioned on the basis of conviction under a law whose penalties include disqualification from office. But there have been cases related to Congress which have raised similar controversies.
In a 1969 case, the Supreme Court rejected an attempt by a majority House of Representatives to block Adam Clayton Powell Jr. from taking his seat; He was re-elected by the voters of his district despite allegations of misconduct. The court ruled that since he met the Constitution’s eligibility criteria for membership in the House, “the House had no power to exclude him from membership.”
Citing Alexander Hamilton, Chief Justice Earl Warren wrote in that majority opinion that “a fundamental principle of our representative democracy is that the people should choose whom they choose to govern themselves.”
And in a 1995 case, the Supreme Court struck down an amendment to the Arkansas Constitution that attempted to impose term limits on members of the House of Representatives and senators elected from that state. Judge John Paul Stevens wrote that the state has no power to add qualifications to the list of eligibility criteria established by the federal constitution.
Citing these and other examples in a 2000 case before the 7th Circuit Court of Appeals in Chicago, Judge Richard Posner, considered the most cited American jurist of all time, insisted that Congress had no eligibility requirements. The right to complement is lacking. Presidency in the Constitution.
What did people say about Hillary Clinton?
Section 2071 was briefly reviewed in 2015, when it emerged that Clinton, who was projected to be the Democratic presidential nominee in 2016, had used a private email server to conduct government business while still secretary of state. did.
Clinton was never charged with any crime related to the use of the server. While many Republicans acknowledged Donald Trump’s criticism of the issue during his 2016 presidential campaign, some briefly warmed to the idea that the law could be used to keep Clinton out of the White House. Among them was Michael Mukasi, a former attorney general in the George W. Bush administration. So there was at least one conservative think tank.
But considering that position, Seth Barrett Tillman, an American and legal scholar who now teaches at Maynooth University in Ireland, and Eugene Volokh of the University of California, Los Angeles, argued against judicial sentences and Congressional arguments. that they were wrong. It cannot alter the eligibility criteria established in the text of the Constitution.
Volokh later wrote on his blog that Mukasi – who is also a former federal judge – wrote him a polite email stating that “on reflection,” Mukasi was wrong and Tillman’s analysis was “sound.”
What is being said about Trump now?
After the Mar-a-Lago search warrant came to light, one of the most prominent voices targeting Section 2071 was that of Mark Elias, who served as general counsel for the Clinton campaign in 2016. Initially, he referred to the provision for disarmament. in law a post on twitter As for “the really, really big reason why today’s raid is a potential blockbuster in American politics.”
But he acknowledged with another Twitter post that no sentence under Section 2071 could ultimately deter Trump from seeking the presidency again, arguing that a legal battle over it is still likely. will be important. Names can be put off state ballots.
“Yes, I recognize the legal challenge that the application of this law to the President may benefit (since the qualifications are enshrined in the Constitution)”, wrote Elijah. “But the idea that a candidate has to prosecute it during a campaign is, in my opinion, a ‘blockbuster in American politics.
Charlie Savage is a Washington-based national security and legal policy correspondent. A Pulitzer Prize winner, he previously worked on The Boston Globe and The Miami Herald. his most recent book is Power Wars: The Relentless Rise of Presidential Authority and Secrecy, @charlie_savage • Facebook