“The Whole Enchilada”: Pundits Wrongly Claim the Mar-a-Lago Raid Could Disqualify Trump from Future Office

The FBI raid on Mar-a-Lago has unleashed a familiar euphoria among critics who have longed for–agents descending upon the President’s residence in a criminal operation. One MSNBC pundit declared that day of the “orange jumpsuit” may finally be at hand while another simply exclaimed “hallelujah.” It was a tad premature since we do not even know if classified material was found and, if so, whether there is a criminal case to be made from such a discovery.

previously testified in Congress on the earlier seizure of the boxes at Mar-a-Lago under the Presidential Records Act and how criminal prosecutions have been rare under the law. Nevertheless, criminal charges are possible, including under Section 2071 which states that anyone can be prosecuted who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office.” That crime, however, requires a showing of not just negligence but that “an act is …  done voluntarily and intentionally and with the specific intent to do something the law forbids.”

Notably, even the most serious cases of mishandling classified records have not resulted in major charges. One example is that of former Clinton National Security Adviser Sandy Berger who was found to have secretly stuffed classified material into his pants and socks to remove them from a secure facility. He then hid them in a spot to be retrieved later. It was a flagrant and premeditated violation of federal law and put national security secrets at risk. Yet, Berger was allowed to plead guilty to a misdemeanor and did not have to serve any jail time. Indeed, his security clearance was suspended for only three years.

However, critics were not particularly interested in whether Trump might have some suspended misdemeanor sentence. Rather, even before learning if any evidence of criminal conduct was found, critics turned to the ability to use the charge to disqualify Trump from future office. Section 2071 has excited the imagination of such critics because of a line that states that a convicted party can “be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.”

(MSNBC/via YouTube)

That was the enticing possibility highlighted by Marc Elias, Hillary Clinton’s campaign lawyer who was a critical player in pushing the false Russian collusion claims in the Steele dossier. In addition to accusations that he may have lied about the funding of the Steele dossier,  Elias has been sanctioned in court for his conduct.

Elias was not alone citing the possible use of a Section 2071 charge to block Trump’s expected presidential run in 2024. Former federal prosecutor Harry Litman even suggested that this could be the actual plan of the Justice Department to end Trump’s political career:  “So this could be the whole enchilada in terms of DOJ resolution.”

Consider that culinary-legal analysis for a second. The claim is that the Justice Department may be actively seeking to use a charge to block Trump as the real motivation for this raid and possible charge. There is not a hint of concern over the FBI being used to achieve such a political purpose. That is putting aside the fact that, unless there is evidence of a “willful and unlawful” effort to conceal or retain such material, the FBI could end up an enchilada short of a combination plate for prosecution.

There is also a significant constitutional hurdle facing this latest means of barring Trump from office.

This is not the first time that this disqualification argument has been made and scholars like Seth Tillman have previously raised constitutional objections to it. (Professor Josh Blackmun also has a column on this issue)

The problem is that the law would add a qualification or condition that is not stated in the Constitution. There are constitutional ways to impeach a president or to bar a former president from future office. The mishandling of official records is not one of them. In analogous cases like Powell v. McCormack and U.S. Term Limits v. Thornton, the Supreme Court rejected  the authority of states to impose new qualifications for congressional seats under Article I. The same is presumably true under Article II when it comes to the chief executive.

There is ample reason to doubt that the presidency would be deemed barred by statute in this fashion. What would not be in doubt is how such novel claim of disqualification would be received by millions of citizens already skeptical of the motivations of both the Biden Administration and specifically the FBI.

The basis and even the motivation of this raid will become clear in time, including whether there is evidence of willful and unlawful conduct by the former president. However, whatever this raid produces, this “enchilada” will likely be hard for most judges to swallow as a way to keeping Trump off the ballot in 2024.

This column also appeared on Fox.com

425 thoughts on ““The Whole Enchilada”: Pundits Wrongly Claim the Mar-a-Lago Raid Could Disqualify Trump from Future Office”

  1. This excessive force, armed raid on president Trump’s home and office is only the beginning.

    Charges for contempt are being prosecuted against Trump’s inner circle where they never have before.

    Peter Navarro was arrested as he was boarding a plane and they shackled him in leg irons for full humiliation, intimidation and thuggery by the Biden regime.

    Lawless protests and implicit threats against Supreme Court justices continue at their family homes as a politicized AG/DOJ turns a blind eye to enforcing the law!

    All around the country the FBI has used unnecessary, excessive force like battering rams to break down people’s doors to intimdiate and send a message.

    Anyone politically, actively, vociferously, and legally opposing the “regime” is a target now.

    Anyone supporting Trump is a target.

    Police state tactics and battering rams are regularly being used by the Biden FBI against political opponents.

    J6 prisoners are being politically persectuted, rights stripped, unconstitutionally held in the DC gulag.

    Senate Republicans are silent. Why? Because they agree with the tactics being deployed to intimidate, threaten, silence both Trump AND his supporters.

    It is a very scary time to be an American — now hunted, censored, persecuted by your own government simply because of your political views.

    Just wait until the Biden regime unleashes 87,000 new IRS agents on the deplorables.

    1. The Secret Service and Trump’s attorney were both informed of the search warrant before it was executed. Trump wasn’t even home at the time. Trump is proven to have violated the Presidential Records Act by flushing documents down the toilet (photos proving same were released yesterday) and he stole 15 boxes of materials, some of which were marked “Top Secret” and “Classified”. These are facts. Should the DOJ just let this go? Apparently, the National Archives examined the 15 boxes of documents and determined that they are incomplete. So, we should just trust Trump to return the rest of the documents? Does anyone doubt that Trump might give copies to Putin? Does anyone believe that Trump would return everything, given his track record? So, the DOJ should just let a loose cannon like Trump have Top Secret and Classified Documents and do nothing about it?

      No one is threatening, intimidating persecuting or abusing Trump or his supporters. Trump is proven to have already broken the law by stealing the 15 boxes of documents and tearing up and flushing others. He has no respect for the law.

      1. Trump is more honest and sqeaky clean than the whole lot of them hanging around for life up there on Capitol Hill. Not to mention the corrupt, sociopathic liars named Clinton, Biden, Pelosi, Kerry, Schiff, Schumer, et al. And war criminals Bush, Cheney, et al. Not one of them would survive even the slightest scrutiny that Trump AND his family have been through. Not one of them would still be standing. They would all be in prison for lying, cheating, stealing, corruption, treason, you name it. Trump is the cleanest of them all. By far. And they all know it, too.

      2. “No one is threatening, intimidating persecuting or abusing Trump or his supporters.”

        Of course they are. Nonstop. Open your eyes. Have you had your door broken down by a battering ram? No? Look around to see if you can find out how many conservatives and Repubs have had the FBI break down their front door and terrorize their family and children, forcing them to stand on the lawn in pajamas just to inflict maximum humiliation in front of their children and neighbors . Or how many are sitting in jail for 9 months, refused bail, not having been charged with a crime worse than trespassing? Actual hardcore criminals are treated better in our “justice” system than a conservative Trump supporter.

        1. NO ONE broke down any doors here: the Secret Service and Trump’s lawyer were both informed before the warrant was executed. Trump wasn’t even home, so NO ONE “terrorized him” or his family. He and Ivanka were in New York to give depositions in their tax fraud cases. NO ONE was standing on the front lawn in pajamas being humiliated.

          And, for what I hope is the last time, those J 6 rioters who are still in jail awaiting trial were determined by a JUDGE not to qualify for bail, or they were unable to raise bail. Reasons they would not be eligible for bail include: active warrant, prior history of flight, extensive criminal record, among other reasons. It is up to a JUDGE whether someone qualifies for bail, not up to Biden, the DOJ, Nancy Pelosi or anyone OTHER THAN the judge. If you don’t llike it, criticize the Judge who decided they didn’t qualify for bail. Doesn’t Fox explain the reasons why someone arrested for invading the Capitol didn’t qualify for bail? Some of them did have extensive criminal records. If you don’t learn your lesson after several trips to the criminal justice rodeo, a judge usually doesn’t feel it’s safe to put you back on the street pending trial.

      3. If they dare to prosecute Trump for “stealing” documents or “lying” or “contempt,” then they will have to prosecute Hillary Clinton for sure, also Barack Obama, Eric Holder, Susan Rice, Samantha Power, Jake Sullivan, Joe Biden and the rest of the gang including McCabe, Comey, Schiff, et al. Lock them all up.

      1. The Secret Service guards the gates to the property. There are photos from the execution of the search warrant, showing the gates and guards standing there. To Quote Snoop: “you better ask someone”.

  2. The big question is if Trump’s plumber has a top security clearance? Historians might name this “Toilet-Gate”.

    A recent book came out – with photos included – that reported Trump routinely flushed notes down the White House toilet and in foreign nations. The problem is that type of writing paper clogs up sewer pipes and doesn’t biodegrade very fast, so plumbers are sent into sewer traps to clean out Trump’s documents.

    There is a legal angle here also. Once the documents travel down the sewer pipe beyond the “curtilage” of the home and property, those documents are no longer the property of the flusher. Apparently Trump did this in foreign nations also so who’s knows what plumbers were reading America’s top secret documents?

    [source: book “Confidence Man” by Maggie Haberman]

    1. Ashhat, so you believe that Trump was flushing papers down a toilet (not shredding) and some papers didn’t get flushed and then someone followed THE PRESIDENT into the toilet and saw the papers and took a picture and sent it to the NY Times??

      Imagine thinking that THE PRESIDENT was flushing papers, again, not shredding them). Imagine thinking that the PRESIDENT sis not notice that some papers didn’t flush? Imagine that some jamoke hits the head right after THE PRESIDENT and sees the papers still in the toilet?? Imagine that this guy whips out a camera, takes a picture and sends it to Maggie Haberman???

      Now try to imagine that anyone who believes all of the above is actually able to feed himself.

    2. I’ve read information about the US capturing toilet flushings from foreigner dignitaries and heads of state to see what drugs they might be taking and what health problems they might have. Trump is dangerous. Who knows what he’s already let the Russians and/or the Chinese get hold of.

  3. After so many attemps against President Trump, who is not aware that the objective is to stain his name and disqualify him from running for office?

    His basic rights as a human being and US citizen, and those of his family and cloae associates, have been violated

    1. He’s a crook. He’s always been a crook. Ask the people of NYC. They’ve know that trump is a crook for decades.

  4. My nightmare is that The Donald runs and wins the prez but at the same time is doing jail time. So the documents for him to sign are passed through the jail cell bars.

    1. The first document would be his pardon.

      The second would fire everyone in the FBI and DOJ.

      Then he could get busy with the rest of the swamp.

  5. One commentator’s remarked that “these people are desperate” they know if he returns to the White House they’ll all be dealt with this time. Another said he wouldn’t doubt an assassination attempt and wondered about the SS.

    Have we been so mesmerized with our own lives that we’ve allowed our country, our freedom and America way of life be stolen? If they’ve gone this far what next marshal law and suspension of the midterms? What’s happening in America should concern every American regardless of political beliefs.

  6. “ Nevertheless, criminal charges are possible, including under Section 2071 which states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office.” That crime, however, requires a showing of not just negligence but “an act is … done voluntarily and intentionally and with the specific intent to do something the law forbids.”

    Well, given the well known history of Trump destroying and tearing up official documents and flushing them down the toilet. He stands a good chance to be charged with a crime. Even if it’s just a misdemeanor.

    The question should be why didn’t Trump hand over all the documents in the first place? Did he willfully keep some of them?

    1. Funny you forgot about the wicked witch of the west Nancy puplicly tearing up a govt. document on national TV. So I am to assume you are all for her door being broken down and her house raided? No one is above the law, right?

      1. She tore up the total BS Trump State of the Union speech, filled with grandiose lies about Trump’s alleged “accomplishments”. it wasn’t confidential or top secret–just a courtesy copy. No one “broke down” any doors or “raided” anyone’s house. The Secret Service and Trump’s attorney were informed in advance. Trump wasn’t even home–he was in New York.

        1. Natasha you are going to work all day and night wacking down the disinformation spewing out of their alternative facts.

          1. You are correct: “and still she persisted”. Maybe at some point some of them will wake up to reality. Some actually have. There’s just too much “there”.

      2. Ha ha ha! That was a copy of a speech. Ha ha ha! What law school did you go to? Did you graduate?

  7. [[I’m sorry to waste space here, but I just read, “an enchilada short of a combination plate…” I burst out laughing. That is the funniest thing I have ever read the good professor as saying.]
    (Anonymous, is this T/F?)

      1. Where did you see it? I think the professor said it was missing, i.e., “an enchilada short of a combination plate…” A mirage? Hallucination? Out-of-body experience?

        1. Natacha: (Oh, you were referring to the photo? Since my original comment referred to JT’s words (not the photo), I assumed you were referring to that.)

              1. Didn’t that look nasty to you? I order enchiladas all the time, and they don’t look like that–they’re usually in a flour or corn tortilla and covered with either cheese or red sauce.

                1. (strangely enough, today I had a tostada from a local restaurant for lunch. Maybe if we had shared a meal, we could talk out some of our different views. If we continued to disagree, we could throw the whole pukey mess at each other.)

  8. I have to commend Professor Turley for his evenhandedness and commitment to the rule of law and free speech.

    The people trying to get Donald Trump are way more dangerous to our republic than is the former president. In their zeal to destroy him, they make a mockery of our traditions and norms. President Trump is not perfect, of course, but he is far superior in his ethics, than men who hide in the shadows.

    The media, both political parties, Congress, universities, local schools, even many churches, are dead to me.

    1. Your opinion is that “The people trying to get Donald Trump are way more dangerous to our republic than is the former president.”
      My opinion is that Donald Trump is way more dangerous to our republic than anyone trying to “get” him.

      1. Yeah, it really sucked not having 9% plus inflation, a more secure border, cheap gas, lower energy bills, not being in a recession and not having the FBI used as a gestapo.

  9. As a conservative never-Trumper, I want Trump to run in 2024. Trump has been a master at playing victim ever since he shot that Pizza Hut commercial in the early 90s for money because he drove his business into the ground. His big lie, however, is the final straw. The numbers don’t lie. The big lie is supported by 30 or so million people. But not 70 million. Yup, let him run, and then let the deluge of big lie anti-Trump ads flood the media for a year showing what an evil liar, ass clown, and moron he is. Bring it on. Total humiliation.

  10. DOJ officials briefed on the Mar-a-Lago raid:

    NICHOLAS McQUAID: worked with Hunter Biden’s and Michael Sussmann’s criminal attorneys

    LISA MONACO: Obama aide implicated in Russiagate

    MAGGIE GOODLANDER: wife of top Biden aide Jake Sullivan, implicated in Russiagate

      1. Anonymous, you have no issue with the wife of Jake Sullivan being involved? LEt me remind everyone that Jakey was involved in the first attempt to take Trump down. Anonymous, you are willing to sell out the country in order to win political points in favor of the most corrupt president ever, Joe Biden.

  11. Disgusting. Reprehensible. Egregious. Fascist. Unfathomable. There are no other words for this. i would love to know precisely what the Dems are so absolutely terrified of when it comes to Donald Trump. They present as cowards, pedants, narcissists if not outright sociopaths – we currently have begun to resemble the Soviet Union. I pray every day that we do not make it all the way to Nazi Germany. Our modern DNC seems to be intent on getting bullets flying between us (wouldn’t be the first time, oh lovers of slavery) with their J6 trials and further statist nonsense in places like Georgia, when we should by all rights be living together peacefully, and I can find no other explanation other than insanity. The ‘wisdom’ of George Soros is the ‘wisdom’ of Charles Manson, replete with young Mansonites joyfully eating up every word. Obama may turn out be another Hitler, even if unintentionally, because he is blinded by his hubris. All we can do at present is pay attention, speak out, and vote. My reaction to this was abject shock. We have sunk to lows, beginning with the lockdown in 2020, I couldn’t imagine pre-Obama. Even he handled his pandemic at the time without the blatant fascism, and the world did not end. The Democratic Party is lost. We now have an American party and a Marxist one. Period.

  12. After Trump lost the last election he found documents from Obama administration era showing Hunter Biden admitting on a voice recording that he directly got paid by Putin a million dollars. Hunter said on tape:
    “How was I to know…she was with the Russians too!”
    Trump wanted to use this in the next election near the end so as to defeat Biden. If it comes out now then Biden won’t run again.

  13. I am not a lawyer and have no idea what legal machinations would ensue following the discovery of contraband in Trump’s home – if such contraband were found or manufactured. While I appreciate and value Turley’s legal analysis, I would presume the plan would be to try Trump in a DC court somehow. With the Sussman trial, we know that someone who was working to smear Trump was charged with lying to the FBI and whose lie was documented can be exonerated in a DC court. If Trump is somehow tried in DC, it is unlikely he will be exonerated regardless of the law, the evidence, or the Constitution.

      1. I believe (I just read) that the guy that signed off on the warrant was prosecuting Jeffrey Epstein in Florida and he resigned his prosecutorial position and the very next day went to work for Epstein’s staff members. But hey, the country had a good run.

  14. This is a sign that the DOJ and FBI have no fear of a future Trump presidency, in which they would be held accountable. They are confident that they will be able to prevent such a thing.

  15. The 14th Amendment’s “Disqualification Clause” is listed in the U.S. Constitution and Trump would seem to be in violation of both the letter & spirit.

    It also appears that this clause could be invoked in such a way as to remove politics from the equation. The clause only grants Congress exclusive authority to “forgive” (or not) anyone previously disqualified. It doesn’t clarify how the clause is originally invoked.

    For example: a Capitol police officer harmed during the January 6 insurrection (or any other person harmed) would have “legal standing” in a constitutional lawsuit. It seems likely any judge would allow at least allow such a legitimate plaintiff to challenge this clause in court.

    The Capitol police officer (plaintiff) could cite “14th Amendment injury” against Trump to invoke the “Disqualification Clause”. In constitutional cases the term “injury” can also mean “violation” (ie: 1st Amendment injury, 2nd Amendment injury (gun rights), 4th Amendment injury (warrantless searches), etc).

    Since this would be a constitutional case, the burden of proof would be easier to meet for any jury or judge. Constitutional cases are also more flexible in using new legal precedents – the 14th Amendment has also been interpreted to protect women’s rights and LGBT rights. The best part is, any legitimate plaintiff can go to court and test this litigation for free using an ACLU type attorney.

    This path removes the Democrats and the U.S. Attorney General from the equation (although not required). It sets a great precedent and deterrent for future presidents.

    1. What about a murdered Veteran, and the black officer who got away with her murder??
      Where are her rights?? Where are her families??

  16. If the Presidential Records Act is the “legitimate” legal justification for this, count me as a skeptic for that being the actual reason. There is a game certain types of prosecutors like to play — by certain types I mean unethical prosecutors who ought to be disbarred. They get a “legitimate” warrant for which probable cause is easy, when they are actually looking for something else or are on a fishing expedition in general.

    Perhaps the authorities are trying to solve a murder. They’re not getting anywhere and they focus on someone who was an acquaintance of the victim. They don’t have reason to believe he’s the murderer, in fact, they doubt that he is. But perhaps a search of his house might turn up something. They find Witness A and Witness B who claim they saw drugs in the house. Even something like selling cigarettes might do it. In New York that is considered no small thing. Just ask Eric Garner. They find the witnesses credibility dubious, but a judge is hardly going to be aware of that. Search warrant in hand, they go into the house looking for the murder weapon — which they don’t find. Illegal search accomplished.

    1. By the way, even if they find the murder weapon, it’s actually illegal. But the Courts will be delighted. Here’s something a 12-year-old knows but certain “adult” prosecutors do not. If you can’t state in open court why you are doing something, then you should not be doing it. We call this corruption.

  17. Democrats going Full Red Guard,?

    FBI officially the KGB/FSB? The numbers are against you.

    Civil unrest leading to Civil War? Inevitable?

    700 million guns in circulation. 34 straight months of background checks. 100 million plus gun owners.

    The Bolsheviks don’t have the majority of the guns. Ownership is not marksmanship or tactics. The 2nd Amendment is the remedy for this tyranny.

    Say when.

    1. John Paul,

      I have been reading “The Gulag Archipelago” by Aleksandr Solzhenitsyn. It is down right creepy how there are many parrellels in where we are today. As a kid growing up under the spector of the U.S.S.R., I couldn’t fathom how a society would choose communism. It made no sense. One thing Solzhenitsyn points out is how the people were to blame. They stood and did nothing as arrest after arrest happened or they told themselves that it was “good for the country”.

      “From the most ancient times justice has been a two-part comcept: virtue triumphs, and vice is punished.
      We have been fortunate enough to live a time when virtue, though it does not triumph, is nonetheless not always tormented by attack dogs. Beaten down, sickly, virtue has now been allowed to enter in all its tatters and sit in the corner, as long as it doesn’t raise its voice.” – Aleksandr Solzhenitsyn

      1. After Vietnam I spent four and a half years station in the Fulda Gap, West Germany. Two of those years across the border from KGB Putin who was in East Germany.

        I’ve read and re-read everything Solzhenitsyn has written. I’ve also read Marx, Lenin and Mao Tse-tung.

        “Political power grows out of the barrel of a gun.” Mao Ts-tung. We the People have 700 million guns.

        The University of Hawaii did a study in 1994 on Democide; Death by Government. Marxists killed 262 million in the Twentieth Century.

        https://www.hawaii.edu/powerkills/welcome.html

        We have the 2nd Amendment as the remedy for tyranny. No other nation has that remedy. No one is talking our guns. NEVER VOLUNTARILY SURRENDER YOUR GUNS!

        100 million plus gun owners with 700 million guns and 34 straight months of one million background checks.

        The numbers are against the Red Guard Democrats and the KGB/FSB FBI.

        Say when.

        1. Notice the Govt went in under Jeffery Espein’s old rep & their threat of violence.

          As a result the Govt lost more of their respectability.

          American supporters have to remain peaceful & smart.

        2. I wish I was as optomistic as you. Our 1st and 2nd amendments are under constant attack. They will most likely fall when this current indoctrinated youth takes over. The question will be, will things be “reset” before that happens. Will the dems over play their hand and awaken the sleeping giant like the Japanese? Or, will we just be lambs lead to slaughter? Timing is everything for both sides.

  18. I wonder who in Merit-less Garland’s NOJustice Department decided on carrying away 15 boxes? Were 10 boxes not sufficient to get the attention of the sycophant media? Were 25 boxes too many, too greedy?

  19. The Democrats are terrified of another Trump presidency, but not because they seriously oppose his policies — indeed, Biden has continued many of them. What the Dems are afraid of is giving Trump the power to investigate them and their more crime-ridden associates, like Hillary and Hunter. US politics have deteriorated to the point where political parties fight one another, not for the privilege of running the country, but for the insurance of not facing prosecution.

    1. That’s quite a conclusion to assume when you haven’t even read the warrant application.

      Turley notes “The basis and even the motivation of this raid will become clear in time, including whether there is evidence of willful and unlawful conduct by the former president.” He doesn’t jump to conclusions like you do.

      1. “That’s quite a conclusion to assume . . .”

        Just out of curiosity:

        How many times would you allow a scorpion to sting you, before concluding: “Maybe this is a stinging thing.”

        10X? 100? Ever?

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