Early reports that the FBI search of former President Donald J. Trump’s Florida residence was linked to an investigation into whether he had unlawfully taken government files as he left the White House drew attention to an obscure criminal law that included removing of official documents. The penalties for violating that law include disqualification from holding federal office.
As it is widely believed that Mr Trump is preparing to run for president again in 2024, that unusual sentence raised the prospect of him being legally barred from returning to the White House.
Specifically, the law in question—section 2071 of Title 18 of the United States Code—makes it a crime for anyone in custody of government records or records to “deliberately and unlawfully conceal, remove, mutilate, erase, falsify, or destroy.”
If convicted, suspects can be fined or sentenced to prison terms of up to three years. In addition, the statute says that if they are currently in federal office, they will “forfeit” that office and be “disqualified from holding any office under the United States.”
On the face of it, if Mr. Trump were to be charged and convicted of removing, concealing or destroying government documents under that law, he would appear ineligible to run for president again.
But there was cause for caution: The law came under brief scrutiny in 2015 after it was revealed that Hillary Clinton, then widely expected to be the 2016 Democratic presidential nominee, had used a private email server to conduct government business. while secretary of state.
Some Republicans were equally fascinated by whether the law could keep Ms. Clinton out of the White House, including Michael Mukasey, a former attorney general in the George W. Bush administration. So was at least one conservative think tank.
But in considering that situation, several legal scholars — including Seth B. Tillman of Maynooth University in Ireland and Eugene Volokh of the University of California, Los Angeles — noted that the Constitution sets criteria for who can become president, arguing that Supreme Court rulings suggest Congress cannot change them. The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but does not grant such authority under ordinary criminal law.
Mr Volokh later reported on his blog that Mr Mukasey – who is also a former federal judge – wrote that “on second thought” Mr Mukasey was mistaken and that Mr Tillman’s analysis was “accurate”. (Mrs. Clinton has never been charged with any crime in connection with her use of the server.)
On Monday, one of the most prominent voices referring to Section 2071, Democratic attorney Marc Elias — who served as general counsel to Mrs. Clinton’s campaign — initially cited the law’s disqualification provision. a Twitter message as “the really, really big reason why the heist is a potential blockbuster in American politics today.”
He continued with another Twitter post acknowledging that a Section 2071 conviction wouldn’t ultimately stop Mr Trump from seeking the presidency again, arguing that a legal battle over it would still be important. .
“Yes, I recognize the legal challenge that applying this law to a president would pose (since qualifications are enshrined in the constitution),” he said. wrote. “But the idea that a candidate should have to litigate this during a campaign is, in my opinion, a ‘blockbuster in American politics’.”