The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
On this blog, Mukasey later admitted that Tillman was correct, and he was wrong:
[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.
Tonight, Charlie Savage of the New York Times recounted this history in an article on the Trump search.
Some Republicans were briefly entranced with whether the law could keep Mrs. Clinton out of the White House, including Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.
But in considering that situation, several legal scholars — including Seth B. Tillman of Maynouth University in Ireland and Eugene Volokh of the University of California, Los Angeles — noted that the Constitution sets eligibility criteria for who can be president, and argued that Supreme Court rulings suggest Congress cannot alter it. The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but grants no such power for ordinary criminal law.
Mr. Volokh later reported on his blog that Mr. Mukasey — who is also a former federal judge — wrote that "upon reflection," Mr. Mukasey had been mistaken and Mr. Tillman's analysis was "spot on." (Mrs. Clinton was never charged with any crime related to her use of the server.)
Once again, Tillman rebuts an argument that conservatives favored as a way to get Clinton, that liberals now favor as a way to get Trump. There is nothing new under the sun.
Back in 2015, Seth did not have to make the argument that the Presidency is not an "office under the United States" for purposes of Section 2071. But Seth and I did consider another statute, 18 U.S.C. § 2383, which also disqualifies a person from "holding any office under the United States." In an article published shortly after the inauguration, we addressed what happens if the Biden administration prosecutes and convicts Trump of insurrection. That article is suddenly relevant to our present moment.