Jack Smith Can Convict Trump, But Can He Keep Him From the White House?

The charges that are included in Special Counsel Jack Smith’s 37-count indictment of President Trump carry with them potential prison time of more than a century. Even a sentence for less than that could mean that Mr. Trump would live out his days behind bars. Nothing, though, in the four corners of Mr. Smith’s indictment prevents Mr. Trump, the favorite to claim the Republican nomination and, if polls are to be believed, a contender to best President Biden in a general election, from serving as president again. Mr. Trump, then, could be both a convicted felon and also president of the United States.There was a path not taken by Mr. Smith that could have not only threatened Mr. Trump’s liberty, but ended his political career. In leaning so heavily on the Espionage Act — of the 37 charges against Mr. Trump, 31 of them are sourced to that series of statutes — Mr. Smith declined to charge under a statute that would have barred Mr. Trump from holding office again. Chapter 18 U.S.C. § 2071, which Mr. Smith did not deploy, addresses those who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys” any “record, proceeding, map, book, paper, document, or other thing,” Anyone convicted under its terms is subject to prison time and must “forfeit his office and be disqualified from holding any office under the United States.”While this law covers much of the same activity as the Espionage Act, that World War I era law, while providing for draconian punishments — it was for violating the Espionage Act that Julius and Ethel Rosenberg were sent to the chair — does not erect a bar to serving in office. Chapter 18 U.S.C. § 2071 was, along with the Espionage Act, cited in the search warrant for Mar-a-Lago, but was dropped by the time the indictment was issued. A law professor, Joshua Blackman, tells the Sun that he believes that omission telegraphs that Mr. Smith is pursuing a “very narrow set of charges” to “avoid a political distraction.” He is, Mr. Blackman adds, “just trying to get a conviction.” The New York Times reports that Mr. Smith is “seeking to dodge potentially distracting elements to a case focused on concrete evidence.”Mr. Blackman, though, observes that Chapter 18 U.S.C. § 2071’s bar as applied to a potential president is likely unconstitutional, as it imposes more qualifications for the presidency than the three ordained by the Constitution; age, natural born citizenship, and residency. It would appear to be better suited to appointed officials, who face no such enumerated qualification requirements. Still, Mr. Smith’s forbearance from even wading into disqualification waters when it comes to his Mar-a-Lago remit could telegraph a similar avoidance of that tact when it comes to his investigation into the 2020 presidential election, a probe that Attorney General Barr recently predicted will culminate in charges. Chapter 18 U.S. Code § 2383, which covers “Rebellion or Insurrection,” encompasses anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” Its prescribed punishment is a maximum of a decade in prison and — again with constitutional dubiousness — anyone convicted under its terms “shall be incapable of holding any office under the United States.”Nobody has yet been charged with insurrection in connection with the events of January 6 — Mr. Trump would be the first — and only a state district court in New Mexico has made a judicial finding of an insurrection. The most serious charge yet has been for seditious conspiracy, for which the Department of Justice has secured a raft of guilty pleas and convictions. Seditious conspiracy, which targets two or more people who “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,” is punishable by a maximum of 20 years in prison, but not by a bar from office. Mr. Trump is no stranger to efforts to disqualify him from office on account of January 6. These attempts, undertaken by liberal advocacy groups, to block him from the ballot have marched under the banner of Section Three of the Fourteenth Amendment, which bars any office holder from further service if they have “engaged in insurrection or rebellion”or “given aid or comfort to the enemies thereof.” Mr. Blackman agrees that the bar from political office imposed by Code 18 U.S. Code § 2383 , the insurrection statute — it was signed into law by President Lincoln, during the Civil War — is likely as unconstitutional as the one relating to mishandling documents because it predates the Fourteenth Amendment by six years. Nevertheless, a conviction under the terms of the insurrection statute could animate the possibility that 12 jurors in the District of Columbia, where President Biden beat Mr. Trump in 2020 by 90 percentage points, could ban him from the White House, regardless of the number of Americans who would vote to return him there.If Mr. Trump is convicted but not disqualified, he could retrace the penitentiary path of another presidential candidate, the socialist Eugene Debs, who was sent to the Atlanta Federal Penitentiary in 1910 under the same Espionage Act that threatens Mr. Trump. From there, he ran for president in the 1920 election, earning just over three percent of the vote. President Harding won that election, and commuted Debs’s sentence. He did not issue a pardon. He did, though, receive him as a distinguished visitor to the White House, along with his amanuensis, Abraham Cahan, editor of the Jewish Daily Forward, which in 1927 founded a radio station with the call letters WEVD, for Eugene Victor Debs. In a statement accompanying the commutation, the White House observed that Debs was “a man of much personal charm and impressive personality, whose qualifications make him a dangerous man calculated to mislead the unthinking and affording excuse for those with criminal intent.”

Jack Smith Can Convict Trump, But Can He Keep Him From the White House?

More from the New York Sun

Bannon’s High Court Win, After Merrick Garland Sent Him to Prison, Is Milestone in Trump’s Push To Reverse January 6 Convictions

Iran-Backed Iraqi Militia Reportedly Says It Will Free Abducted American Journalist Shelly Kittleson — With a Condition

Federal Appeals Court Allows Iowa To Enforce a Law Banning ‘Sexual Materials’ From School Libraries

More from the New York Sun

Bannon’s High Court Win, After Merrick Garland Sent Him to Prison, Is Milestone in Trump’s Push To Reverse January 6 Convictions

Iran-Backed Iraqi Militia Reportedly Says It Will Free Abducted American Journalist Shelly Kittleson — With a Condition

Federal Appeals Court Allows Iowa To Enforce a Law Banning ‘Sexual Materials’ From School Libraries

Russia and China Veto a Proposed UN Resolution on Freedom of Navigation at the Hormuz Strait

Kanye West’s Comeback Suffers a Blow as Britain Bars Him From Headlining London Festival

Vance Headlines Budapest Campaign Rally For Prime Minister Orban

‘Unacceptable’ Penn Station Closure for World Cup Draws Immediate Backlash

As Diplomacy Appears To Have Reached a Dead End, America Strikes at Iran’s Oil Exporting Hub