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.
I 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.”
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