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If Trump illegally removed the official documents, would he be barred from future office?

WASHINGTON — The FBI search for former President Donald J. Trump’s Florida residence has raised questions about whether the criminal investigation could legally prevent him from running for president again, even if he decides to run for president. the 2024 elections.

Any criminal conviction that appears to be related to the investigation includes an unusual penalty: disqualification from holding federal office. But there is cause for caution before concluding that if Mr. Trump were indicted and convicted under that law, he would not be able to legally return to the White House, even if the voters wanted him to.

Here’s a closer look at the matter, starting with the basics.

The Justice Department declined to comment. But by its very nature, the warrant means that a criminal investigation is underway. Early reports citing sources familiar with the case 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 recalled 15 boxes that Mr. Trump took to his Mar-a-Lago home from the White House residence when his term in office ended, saying some contained classified information.

But it’s not clear whether Mr Trump handed over everything. In a statement denouncing the FBI’s action on Monday, Mr. Trump said law enforcement officers “even broke into my vault.”

There are different laws which could potentially cover such a situation. For example, the Espionage Actthat criminalizes the unauthorized retention of defense-related information that could be used to harm the United States or aid a foreign adversary is punishable by up to 10 years in prison per violation.

But the law that has attracted particular attention is: Section 2071 of Title 18 of the United States Code, which makes it a crime for someone who has custody of government records or records to “deliberately and unlawfully conceal, remove, mutilate, erase, falsify or destroy”. Section 2071 is not limited to classified information.

If convicted under that law, defendants could be fined up to $2,000 and jailed for up to three years. In addition, the statute says that if they are currently in federal office, they will “forfeit” that office, and—perhaps most importantly, given widespread expectations that Mr. Trump will seek re-election again—they will be “disqualified from holding” a federal office.

If Mr. Trump were charged and convicted under Section 2071, voters or rival candidates in the state’s primary for the 2024 Republican presidential nomination could contest his eligibility for that position and request that his name be removed from the primary. ballot papers.

Each state administers its own elections, so the exact process may differ. But in general, such a challenge would first go to a state election council. The board’s decision may be appealed to the state court system, the outcome of which may in turn be appealed to the Supreme Court.

Arguing that the Article 2071 disqualification provision is unconstitutional with regard to the presidency.

Article II of the U.S. Constitution establishes three criteria for eligibility for the presidency: one must be a “natural-born citizen,” at least 35 years of age and at least 14 years of age in the United States.

Since the Constitution takes precedence when it conflicts with a federal statute, the argument would be that Congress does not have the power to change that list of criteria, for example, by adding a requirement that someone has not been convicted of wrongfully taking government documents.

Notably, the Constitution empowers Congress to disqualify people from federal office as a punishment for convictions in impeachment proceedings. But nothing in the text of the Constitution says that legislators may use ordinary criminal law to do so.

The Supreme Court has never ruled on a presidential candidate whose eligibility was challenged on the basis of a conviction under a law whose penalties included disqualification from office. But there have been instances involving Congress that have sparked similar disputes.

In a case from 1969, the Supreme Court rejected an attempt by the House of Representatives, by majority vote, to charge Adam Clayton Powell Jr. to prevent him from taking his seat; voters in his district had him re-elected despite accusations of misconduct. The court ruled that because he met the Constitution’s criteria for joining the House, “the House had no jurisdiction to exclude him from his membership.”

Referring to Alexander Hamilton, Chief Justice Earl Warren wrote in that majority opinion that “a fundamental tenet of our representative democracy is that “the people should choose who they want to rule 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 members of the House and senators elected from that state. Justice John Paul Stevens wrote that the state had no authority to add qualifications to the list of eligibility criteria established by the federal constitution.

Citing those and other precedents in an aside in a case from 2000 before the Chicago Seventh Circuit Court of Appeals, Judge Richard Posner, who is considered the most quoted American jurist of all time?claimed that Congress had no authority to supplement the constitutional eligibility requirements for the presidency.

Section 2071 came under brief scrutiny in 2015 after it was revealed that Ms. Clinton, then widely expected to be the 2016 Democratic presidential nominee, had used a private email server to conduct government business while she was Secretary of State. business was.

Mrs. Clinton has never been charged with any crime in connection with her use of the server. But many Republicans embraced Donald J. Trump’s criticism of her on the issue during his 2016 presidential campaign, and some were briefly captivated by the idea that the law could be used to keep Ms. Clinton out of the White House. Among that number was Michael Mukasey, a former attorney general in the George W. Bush administration. At least that’s how it was a conservative think tank.

mr. Volokh later reported an update on his blog that Mr Mukasey – who is also a former federal judge – had written him a friendly email saying that “on reflection” Mr Mukasey had been mistaken and that Mr Tillman’s analysis was “accurate” .

After Mar-a-Lago’s 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 Ms. Clinton’s 2016 campaign, initially quoted the law’s disqualification provision in: a Twitter message as “the really, really big reason why the heist is a potential blockbuster in American politics today.”

But he continued with another Twitter post, acknowledging that a Section 2071 conviction wouldn’t ultimately stop Mr Trump from running for president again — but arguing that a legal battle over it would be important nonetheless. due to the prospect of legal battles over whether his presidency name can be kept from state votes.

“Yes, I recognize the legal challenge that applying this law to a president would pose (since qualifications are enshrined in the constitution),” said Mr. Elias. wrote. “But the idea that a candidate should have to litigate this during a campaign is, in my opinion, a ‘blockbuster in American politics’.”

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