“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. The Russians are coming! The Russians are coming! Round five? Another collusion, another impeachment, another Mueller investigation. And as proof positive we present to you the warrant itself, which is so broadly worded there can be possibility whatsoever of crime. And, the once-again stage appearance of A. Schiffty, who rates an absolute zero in the cred department.

  2. Anonymous the Stupid has no imagination, lies and deceives. now he makes statements that are stupid but he makes sure to delete them.

    ATS should be deleted.

    ===

    ATS self-deleted “is berating himself again;…”

  3. Since when do democrats give a damn about Constitutional law? This will be decided by the voters.

    1. Without knowing more, this ‘visit’ to MAL, by federal agents, has the appearance of Impropriety.

      And the DOJ also appears to be ‘stonewalling’ by constantly using the mantra of “we can’t comment on ongoing cases”. Some Accountability is needed here – why did this take place & why now?.

      1. To add that the behemoth and bloated agency has yet to even reveal the warrant to even the person it was directed toward. If this is not a fishing expedition by the fed god of corruption …than what is ?.

      1. I was just thinking that! But I don’t think they can keep him off the ballot—-they would have to PROVE that he had the “willingness & intention” of “injuring the U.S.” That’s extremely difficult to prove without it being in writing! And we KNOW they aren’t going to find it “written” anywhere!

  4. FBI Whistleblowers might save us all. It should raise red flags that the Liberal news outlets have not covered this development. That is unlike how they celebrated every whistleblower that approached Democrats during Trump’s presidency where they made lied, just like the FBI.

    Whistles Start to Blow at the FBI

    “There is a small bright spot: Whistleblowers are coming forth from within the FBI. Last month the public learned of two such cases via letters from lawmakers. On July 25 Sen. Chuck Grassley wrote to Attorney General Merrick Garland and FBI Director Christopher Wray that he had received credible whistleblower reports attesting to FBI manipulation of the Hunter Biden laptop story. Rep. Jim Jordan wrote to Mr. Wray two days later that whistleblowers had approached him about FBI efforts at “artificially padding domestic terrorism data.”

    The alleged conduct is dispiriting, but we can take heart that whistleblowers are coming forward. No one did so during Crossfire Hurricane, the FBI’s probe into the Trump campaign’s purported ties with Russia. Insiders told me this silence resulted in part from the nature of the investigation: It was a “headquarters special” in which only a handful of people had the full picture. Staff simply assumed the headquarters clique “must have had more.” It didn’t.”

  5. If you beleive the nonsense you spray – then you would quit attacking those who do not who are demanding a full and free inquiry.

    This is not about sports. This is about whether govenrnent, and specifically the power to use force against citizens has been acquired legitimately.

    As the declaration of independence states – Governments existance rests on the consent of the governed. That means the legitiamcy of elections.

    Even in sports we do not accept the results when one side changes the rules in the middle of the game, adds extra player to its side, and supliments the refs with members of its team.

    Following the law in elections is an absolute requirement for trust in government. Doing so TRANSPARENTLY is an absolute requirement fo trust in government.

    It is not a requirement that govenrment conduct elections perfectly. It is however a requirement that government conduct elections openly and honestly. In 2020 – that FAILED. As a result the 2020 election will ALWAYS carry with it the stench of credible allegations of fraud.

    Further those on the left brought this on themselves.

    Rahm Emanuel spoke the quite part outloud long ago – “Do not let a crisis go to waste”.

    Democrats NEVER thoughtfully consider what they are doing. They ALWAYS use whatever has the public’s attention to push through poorly thought changes in the hopes they will stick permanently.

    If our laws, and constitution do not work in times of crisis – they do not work at all.

    The rule of law, does not include an exception for those in power to do as they please when real or imagined crisis strikes.

    Regardless, the 2020 election was conducted lawlessly. It was conducted without transparency, and it was conducted without inquiry after the fact.

    Donald Trump is NOT entitled to a fair election. Voters are. the left likes to talk about disenfranchisement.

    Well that is exactly what YOU did when you conducted elections lawlessly, without transparency and without allowing inquiry.

    You ranted “trust us” – about the process whose fundimental purpose was to confirm and instill trust.

    In the end it does nto mtter one whit whether in a properly conducted election Biden would have won.

    What matters is that YOU did not trust voters. That YOU did not beleive you could win a legitimate election.
    That YOU changed the laws to win. That YOU hid what you were doing to win.
    That YOU thwarted bringing sunlight into elections to protect your win.

    Election laws exist for the purpose of establishing TRUST and legitimacy for the resulting government.

    Act lawlessly and you destroy trust and legitimacy.

  6. Hopefully the degenerate criminal establishment pushes even further ….more tyranny not less.
    We need to awaken the slumbering giant that is regular hard working Americans.
    Soon the kabuki theater bread and circuses wont be enough to tranquilize the American proletariat

  7. The officer is less of a Hero than Dereck Chauvin.

    But for hypocracy, democrats would have no standards at all.

    Alishi Babbit was at worst Tresspassing. Federal LAw prohibits the use of deadly force by Police except where there is an immediate threat of death or serious bodily harm to your self or others. No one else was in the speakers lobby when Babbit tried to enter. Byrd was armed – Babbit was not.

    Byrd claims he shouted himself hoarse telling her to stop – but there are numerous videos of the event and none have even garbled utterances from Byrd.

    Byrd MURDERED Babbit.

    I would note we have something similar in the West Tunnel.

    The Capital police were not authorized to use “deadly force”, You can look up what that means in terms of tactitics.
    But specifcally it meant they could not use pepper spray or an assortment of projectile weapons – until they were actually attacked.

    But what video we currently have in the est tunnel shows the CP initiating the attack – Firing projectiles and Pepper balls at the Crowd FIRST.

    That is what triggered the Crowd to push forward into the West tunnel – dragging several people near the front with them – included Rose Boylan.

    Boylan was then attacked by a black female officer and beaten repeatedly with a knight stick about the head – which is considered deadly force.
    Several people rushed to extract Boylan – and they were beaten too. Boylan was beaten by the officer while she was on the ground.

    And the violence of CP officers – prevented Boylan from getting help.

    Boylan too appears to have been murdered.

    And the violence at the Capital was initiated by the CP.

  8. What a joke you lefties are.
    Peak rtump derangement syndrom personified in your wet dream of “trump’s crimes”…..you just cant wrap your tiny two cell brains around the fact he isnt guilty of anything but standing up for Americans. You filth actualy disgust me.
    You just move from one craven fantasy to another….never holding yourselves accountable to your hypocrisy and lunacy.

  9. It looks like there is no outcry as the victim has to seek a court order to get a a physical copy of the search warrent and the affidavit:

    “A source tells Fox News that former President Trump and his legal team will likely seek a court order to force the FBI and the Justice Department to turn over a physical copy of the search warrant, the affidavit, and a complete inventory of what was taken in the Mar-a-Lago raid.”[1]

    [1] https://www.foxnews.com/live-news/president-donald-trump-fbi-raid-mar-a-lago-house-news

    1. That’s the difference: She got a physical copy while the former present has to seek a court order to get a hand out.

  10. The government and probably the archives had the Hunter Biden video and audio tape of Hunter holding the cash given to him by Putin.
    Now Trump doesn’t have good stuff to beat Biden with in 2024.

  11. Trump as President had the highest Security Clearance and could set and removed any classifications of documents. He also could decide if he wanted to take any with him and he retains his Security Clearance. If the Biden Admin changed any documents classification that Trump had they needed to notify him. If the Biden Admin wanted any document back that he had all they needed to do is contact him or his lawyers and ask. Trump had been in contact with the National Archives and the government via his lawyers, so this raid was not for documents. This raid by the DOJ/FBI was for something else either to trigger Trump supporters to violence or to try to find something in his home they can use in the future to block him from running. I believe both Trump and Hillary knew this was going to happen. Hillary was ready to market off the raid. Trump was ready with a video to the nation. The DOJ, FBI, the White House, the Left, and many RINOs look bad while Trump gets more control of the Republican Party, Independents, and some Dems.

  12. The FBLie had a CI working Trumps inner circle, spying on the man even now. I’m not buying the Archive reason for even a second, I read a little nugget that stated their entire goal was based around Trump having all the receipts on the Russia Collusion spectacle and the FBLie needed to remove that evidence. So the FBLie is now a mercenary group for 0bama and all his cronies. FWIW I don’t believe that whopper either but I do love juicy conspiracy theories.

      1. You spelled O B O N G O wrong, it’s B A R R Y S O E T O R O,

        Son of African and Indonesian citizens and immutably NOT a constitutional “natural born citizen” and immutably NOT eligible for the office of U.S. president.

      1. I was hoping you would tell him to stop breathing, in the name of climate change, of course.

    1. No doubt! He didn’t even make the cost of gas the most expensive in history, or spend enough money to throw the country into a recession!

      FJB

    2. Wally, you are a clown. By every conceivable metric Trump was the best present we have had since Ronald Reagan

  13. Jonathan: I waited patiently hoping the usual crowd would show their cards. I was not disappointed. So allow me to throw in my two cents re the “unprecedented” FBI raid on Mar-a-Lago.

    First, “Nobody’s above the law”. That’s not me. That’s Lindsey Graham–one of Trump’s biggest supporters. So if no one is above the law where does that leave Trump, now a private citizen. I add the last part because there are some in the Trump orbit who still think he is the ACTUAL president. Trump is facing six different criminal investigations. Now that is UNPRECEDENTED! In the case of the search of Mar-a-Lago we should remember that back in January the National Archives (NA) was able to retrieve 15 boxes of docs Trump purloined and took back home–in violation of the law. After review the NA discovered that a number of classified docs were missing. For over a year they tried to get the docs from Trump but he basically gave the NA the middle finger. The NA appealed to the DOJ who finally got a search warrant after Trump refused to comply with earlier requests. Had Trump voluntarily complied last year we wouldn’t be having this discussion.

    Second, there has been a lot of wild speculation about the purpose of the FBI raid. Accepting news reports, it probably relates to Trump’s refusal to return the NA requested documents. There are wild accusations by Fox News, GOP politicians and right-wing pundits that boil down to this: The Mar-a-Lago FBI raid is part of the “deep state” conspiracy by Biden, the DOJ and FBI to keep Trump off the ballot in 2024. Never mind that Biden learned about the raid like most of us–from the news. And FBI Director Chris Wray, a Republican, was appointed by Trump. And, If there was a “deep state” conspiracy how do you account for AG Willis’ investigation over voter fraud in Fulton County, Georgia? She began her investigation independently and before the controversy over the WH documents. Right now her investigation is the greatest legal threat to Trump.

    Third, for four years Trump treated the DOJ as his personal lawyers. He got Bill Barr to intervene in the Flynn and Stone cases. Eric Trump, not the smartest of the Trump children, tweeted yesterday: “I know the white house was well as anyone. I know the system. This {the Mar-a-Lago raid] did not happen without Joe Biden’s explicit approval”. Of course not. Eric expects every WH to act like his dad–intervene in any DOJ case in which his dad had a personal or political interest. Sorry, Eric. That is not how the WH is supposed to act in relation to the DOJ–and not how it operates under Biden. I don’t hear many Trump supporters actually claiming Trump had a right to take WH docs back home–well maybe except for some in this chatroom and Lara Trump, the former president’s daughter-in-law. She was was on Tucker Carlson’s show and bizarrely claimed her dad had a right to remove classified docs to Mar-a-Lago. She needs to re-read the Presidential Records Act.

    Fourth, we should remember Trump never misses an opportunity to make money from his personal problems. He even used the death of his ex, Ivana, to try to raise money. Not missing a beat after the FBI raid Trump sent out another email scam solicitation: “Mar-a-Lago was raided. The radical left is corrupt. We must return the power to the people. Please rush a donation immediately [$45 suggested minimum donation] to publicly stand with me against the never-ending witch hunt”. Yes, the master of the scam is at it again! Jim Bakker has nothing on the king of scam. But some, even some in this chatroom, will probably fall for Trump’s latest scam.

    Finally, in this “age of rage” I think Trump supporters should think twice about calling for a new “Civil War”. Is “lock & Load” to be the mantra for those who want to put Trump back into power. Hundreds of those who tried that back on Jan. 6 found out what happens when you violate the law. Frankly, Trump supporters have overdosed on the cool-aid. They should, instead, learn something from historical parallels. After Napoleon Bonaparte was first exiled to the island of Elba his supporters convinced him to return to Paris to re-establish the “Empire: Napoleon took their advice, returned to Paris but lasted only a year before he was permanently exiled to Corsica. I think Trump will end up in a jump suit before he tries for his comeback. Personally, I would rather see him exiled, like Napoleon, perhaps to an island somewhere off the coast of the Carolinas. Maybe Sandy Island where the descendants of slaves still live? Now that would be a fitting place for Trump to spend his remaining days.

    1. Your geography is about as good as your political opinions. Sandy Island is located on the Wacamaw river in South Carolina about 5 miles inland from the ocean.

      1. Apparently there are about 50 Gullah descendants living on Sandy Island – where the Waccamaw meets the Great Pee Dee River near Georgetown, SC. Most who are left are on Daufuski, St. Helena, Ediso, Wadmalaw, and John’s in SC, and Sapelo in GA. We have traveled those islands by boat and had a small group of the Daufuskie Gullah residents aboard our boat. They told us that most of their relatives live in NYC and other more metropolitan areas as it’s hard to maintain the island traditions and lifestyle.

    2. “Never mind that Biden learned about the raid like most of us–from the news”

      Anyone who believes this did not pass thru Biden’s orbit BEFORE it went down is a fool. And so you believe this, of course. Let’s refresh our memory on how many times was that line used by Obama. “I learned about it in the news just like everybody else.” And the media just nod, slurp it up and say, “Okee dokee, sir.”

      But if Trump said this during his time in the Oval, the media would be screaming and spinning stories about how “Trump lies! He HAD to know!”

    3. So if even ten per cent of what you said is even true then tell us all WHY hasn’t DOJ charged him with something yet? They have been investigating Donald John Trump since the summer of 2015 as he descended that escalator the investigations began YOU GOT NOTHING AND YOU KNOW IT!!! Could the Clintons stand up to the scrutiny Trump has faced? HELL NO!

      1. I would not push that.

        These left wing nuts are capable of creating fake crimes out of whole cloth – listen to the stupid J6 committee ranting.

        And worse DC judges and DC juries will convict.

        Stone was actually convicted of a crime the Mueller report says did not occur.

        DOJ would have no trouble making up a crime – or many, and getting Trump convicted in DC.

        They would likely lose on appeal – though it might require getting to SCOTUS to win.

    4. Did you happen to get one of Hillary’s “But my emails” hats before they’re sold out?

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