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According to reports, the FBI searched Mar-A-Lago as part of an investigation about the handling of classified documents. Will this be the action that finally stops Trump? Several progressive commentators gleefully pointed to 18 U.S.C. § 2071. It provides:
Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall 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. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.
If Trump is convicted of violating this statute, can he be disqualified from the presidency? No. And my colleague Seth Barrett Tillman wrote about this precise issue in 2015. At the time, conservative commentators, including former Attorney General Michael Mukasey, argued that Hillary Clinton could be disqualified from the presidency due to the storage of classified materials on her private email server. Seth explained that Mukasey's argument does not work.
Under Powell v. McCormack and U.S. Term Limits v. Thornton, Congress and the states cannot "add to the express textual qualifications for House and Senate seats in Article I." And that reasoning, Seth concluded, would seem to apply to the qualifications for the presidency in Article II. Several courts in the Seventh Circuit, and elsewhere, reached that same conclusion.
[O]n reflection . . . Professor Tillman's [analysis] is spot on, and mine was mistaken. . . . 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.
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