Aug. 9, 2022, 2:02 p.m. ETAug. 9, 2022, 2:02 p.m. ET
Charlie Savage
Mar-a-Lago a day after F.B.I. agents searched former President Donald J. Trump’s residence there.
WASHINGTON — The F.B.I. search of former President Donald J. Trump’s residence in Florida has raised the question of whether the criminal investigation could lead to legally blocking him from becoming president again, even if he decides to run in the 2024 election.
Any conviction under a criminal law that appears to relate to the investigation includes an unusual penalty: disqualification from holding any federal office. But there is reason for caution before concluding that if Mr. Trump were to be charged and convicted under that law, he could not legally return to the White House even if voters wanted him to.
Here is a closer look at the case, starting with the basics.
What motivated the search warrant?
The Justice Department has declined to comment. But by its nature, the warrant means a criminal investigation is underway. Early reports citing sources familiar with the matter have indicated that the criminal investigation behind the search warrant relates to suspicions that Mr. Trump unlawfully took government files with him when he left the White House.
Earlier this year, the National Archives retrieved 15 boxes that Mr. Trump took with him to his Mar-a-Lago home from the White House residence when his term ended, and said some were found to have contained classified information.
But it is not clear whether Mr. Trump handed over everything. In a statement denouncing the F.B.I.’s action on Monday, Mr. Trump said law enforcement officials “even broke into my safe.”
What laws apply to the removal of documents?
There are several laws that could potentially cover such a situation. For example, the Espionage Act, which criminalizes the unauthorized retention of defense-related information that could be used to harm the United States or aid a foreign adversary, carries a penalty of up to 10 years in prison per offense.
But the law that has attracted particular attention is Section 2071 of Title 18 of the United States Code, which makes it a crime if someone who has custody of government documents or records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” them. Section 2071 is not limited to classified information.
If convicted under that law, defendants can be fined up to $2,000 and sentenced to prison for up to three years. In addition, the statute says, if they are currently in a federal office, they “shall forfeit” that office, and — perhaps most importantly, given widespread expectations that Mr. Trump will seek re-election again — they shall “be disqualified from holding” any federal office.
ImageTrump supporters on Tuesday in Palm Beach, Fla., not far from Mar-a-Lago.Credit…Saul Martinez for The New York Times
How might a conviction play out in coming elections?
Were Mr. Trump to be charged and convicted under Section 2071, voters or rival candidates in state primary elections for the 2024 Republican presidential nomination could challenge his eligibility for that office, asking that his name be omitted from primary ballots.
Each state administers its own elections, so the exact process would vary. But in general, such a challenge would first go to a state elections board. The board’s decision could be appealed in the state court system, whose outcome could in turn be appealed to the Supreme Court.
How could any ballot disqualification be challenged?
With an argument that the disqualification provision of Section 2071 is unconstitutional as relates to the presidency.
Article II of the United States Constitution establishes three criteria for presidential eligibility: One must be a “natural born citizen,” at least 35 years old and a resident of the United States for at least 14 years.
Since the Constitution prevails when it and a federal statute conflict, the argument would be that Congress lacks the authority to alter that list of criteria — such as by adding a requirement that one has not been convicted of unlawfully taking government documents.
Notably, the Constitution does authorize Congress to render people ineligible to hold federal office as a penalty for convictions in impeachment proceedings. But nothing in the text of the Constitution says lawmakers may use ordinary criminal law to do so.
What have courts said?
The Supreme Court has never ruled on a presidential candidate whose eligibility was challenged based on a conviction under a law whose penalties included disqualification from office. But there have been cases involving Congress that raised analogous disputes.
In a 1969 case, the Supreme Court rejected an attempt by the House of Representatives, by majority vote, to block Adam Clayton Powell Jr. from taking his seat; voters in his district had re-elected him despite allegations of misconduct. The court ruled that, because he met the Constitution’s eligibility criteria to be a House member, “the House was without power to exclude him from its 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 please to govern them.”
And in a 1995 case, the Supreme Court struck down an amendment to the Arkansas constitution that had attempted to impose term limits on federal House members and senators elected from that state. Justice John Paul Stevens wrote that the state had no power to add qualifications to the list of eligibility criteria established by the federal Constitution.
Citing those and other precedents in an aside in a 2000 case before the Court of Appeals for the Seventh Circuit in Chicago, Judge Richard Posner, who has been deemed the most cited American legal scholar of all time, asserted that Congress lacked authority to supplement the eligibility requirements for the presidency listed in the Constitution.
What did people say about Hillary Clinton?
Section 2071 briefly received a close look in 2015, after it came to light that Mrs. Clinton, then widely anticipated to be the 2016 Democratic presidential nominee, had used a private email server to conduct government business while secretary of state.
Mrs. Clinton was never charged with any crime related to her use of the server. But many Republicans embraced Donald J. Trump’s criticism of her over the issue during his 2016 presidential campaign, and some were briefly entranced with the idea that the law might be used to keep Mrs. Clinton out of the White House. Among that number was Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.
But in considering that situation, Seth Barrett Tillman, an American and a legal scholar who now teaches at Maynooth University in Ireland, and Eugene Volokh of the University of California, Los Angeles — argued that they were wrong, citing the court rulings and the argument that Congress cannot alter the eligibility criteria set out in the Constitution’s text.
Mr. Volokh later reported an update on his blog that Mr. Mukasey — who is also a former federal judge — had written him a gracious email saying that “upon reflection,” Mr. Mukasey had been mistaken and Mr. Tillman’s analysis was “spot on.”
What are people saying about Trump now?
After the Mar-a-Lago search warrant came to light, one of the most prominent voices pointing to Section 2071 was that of Marc Elias, who served as general counsel for Mrs. Clinton’s 2016 campaign. He initially cited the law’s disqualification provision in a Twitter post as “the really, really big reason why the raid today is a potential blockbuster in American politics.”
But he followed up with another Twitter post acknowledging that any conviction under Section 2071 might not ultimately bar Mr. Trump from seeking the presidency again — but arguing that a legal fight over it would nevertheless be important because of the prospect of legal fights over whether his name could be kept off state ballots.
“Yes, I recognize the legal challenge that application of this law to a president would garner (since qualifications are set in Constitution),” Mr. Elias wrote. “But the idea that a candidate would have to litigate this is during a campaign is in my view a ‘blockbuster in American politics.’”
Source: nytimes.com
