In a 2024 Run, Trump Has the Constitution on His Side

The raid on Trump’s home foreshadows a clash between not only prosecutors and the 45th president but the Constitution and federal law.

AP/Morry Gash
President Trump at a rally August 5, 2022, at Waukesha, Wisconsin. AP/Morry Gash

The FBI’s raid on Mar-a-Lago is shrouded in secrecy, but a possible outcome that could upend the landscape of American politics has come into view: If President Trump is found guilty of criminally mishandling documents, he could face disqualification from office.

The raid on Mr. Trump’s home and the possible prosecution of the man himself has foreshadowed a clash not only between prosecutors and the 45th president but also one between the Constitution and federal law over who holds the power to set qualifications for becoming president.     

That was raised on Twitter by a prominent Democrat, lawyer Marc Elias, who pointed to 18 U.S. Code § 2071, which mandates that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys” protected documents “shall forfeit his office and be disqualified from holding any office under the United States.”

Mr. Elias would go on to “recognize the legal challenge that application of this law to a president would garner (since qualifications are set in Constitution). But the idea that a candidate would have to litigate this is during a campaign is in my view a ‘blockbuster in American politics.’”

While cautioning that we do not yet know if the statute above is in fact the one underwriting the warrant, a law professor, Joshua Blackman, tells the Sun that he reads it as referring to “bureaucrats” or other “appointed officials,” not elected officials, whose qualifications are rooted in the Constitution. 

If the case were pressed against Mr. Trump, that litigation would turn on whether the qualifications laid out in Article II, Section 1, Clause 5 of the Constitution — that the president must be a natural-born citizen of the United States, be at least 35 years old, and have been a resident of the United States for 14 years — can be augmented by lawmakers.  

This is not the first time in recent memory that a link has been drawn between the disposition of records and eligibility to move into the Oval Office. In 2016, a one-time judge and attorney general, Michael Mukasey, mused that Hillary Clinton, then in the throes of controversy over the use of a private server during her time as secretary of state, might be barred if convicted. 

Charges were never brought against Mrs. Clinton, though she claims the kerfuffle cost her the presidency. Mr. Mukasey eventually retracted his argument, admitting: “The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.”

What persuaded Mr. Mukasey, and a whole host of other right-leaning commentators, that Mrs. Clinton was safe from disqualification in the event of conviction was nothing less than Supreme Court precedent. While the high court has not touched on the qualification question in respect of the chief executive, it has done so with regard to Congress.

The turbulent year of 1969 saw the handing down of Powell v. McCormack, which concerned the picaresque representative from Harlem, Adam Clayton Powell. Powell was held in contempt by a New York judge, even as he was re-elected to Congress in 1966. The House voted to expel him, and Powell countered by arguing that he fulfilled the constitutional age, citizenship, and residence requirements, and thus should retain his seat.

By a 7-to-1 margin, a majority opinion authored by Chief Justice Warren agreed and concluded that “since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”

A 1995 case, U.S. Term Limits Inc. v. Thornton, concerned an amendment adopted by Arkansas voters that sought to set term limits of three terms for Arkansan representatives and two terms for senators. The national parchment itself provides for no limits for Article I tribunes, and so the question presented was whether they might be added. 

In a 5-to-4 decision written by Justice John Paul Stevens, the court held that they could not and that “allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a ‘more perfect Union.’” The qualifications, in the court’s language, are “fixed.”

By holding that Article I, § 2, cl. 2 is the exclusive source of qualifications for representatives and Article I, § 3, cl. 3 the remit for senators, the Nine explained: “If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.”

That is precisely what happened in 1868, when the 14th Amendment was adopted in the wake of the Civil War. Section 3 of that amendment bars those officeholders who have “engaged in insurrection or rebellion against the same [United States], or given aid or comfort to the enemies thereof” from returning to office.

Separate from the investigation into his handling of classified materials, Mr. Trump has also faced a disqualification push on these grounds, with one group, Free Speech for People, sending a letter to all 50 secretaries of state urging them to bar him from the ballot.


The New York Sun

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