The Volokh Conspiracy
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Smith's Indictment of Trump In Florida Suggest He Won't Bring An Insurrection Charge in D.C.
Does the special counsel "seek to avoid distracting fights"?
The search warrant that authorized the search of Mar-A-Lago in August 2022 cited three statutes: 18 U.S.C. §§ 793(e), 1519, and 2071. Section 793(e) prohibits "unauthorized possession" of "information relating to national defense." Section 1519 prohibits destruction or falsifications of records in a federal investigation. And Section 2071 likewise prohibits concealment or removal of certain records. Critically, a person convicted of violating Section 2071 "shall forfeit his office and be disqualified from holding any office under the United States." (There's that language again--Groundhog Day!)
If Trump were convicted of violating this statute, would he be disqualified from holding the office of the presidency? Put aside for a moment whether the presidency is an "office under the United States" for purposes of Section 2071. Under U.S. Term Limits v. Thornton, Congress cannot add additional qualifications for an elected federal position. My colleague Seth Barrett Tillman addressed this argument in September. But even if Trump were convicted of this statute, the trial court would have no occasion to decide whether Trump was in fact disqualified from the presidency. That decision could only come in follow-up litigation, should Trump seek to hold some other office. Still, hovering over a Section 2071 prosecution would be the specter that a conviction could lead to Trump's disqualification. And I think that political storm could create a distraction from the underlying merits of the case.
Fast-forward to the present. Special Counsel Smith indicted Trump for violating Section 793(e). This statute does not impose any sort of disqualification. The indictment also references Section 1519, though not under a specific count. However, Smith did not bring a charge under 18 U.S.C. § 2071. Why?
The New York Times published an article titled, In Trump Prosecution, Special Counsel Seeks to Avoid Distracting Fights. The article explains that, at least so far, Smith has taken actions to minimize ancillary disputes, and instead focus on the underlying merits. For example, Smith did not seek any bond conditions on Trump, such as limiting Trump's ability to have contact with co-defendants, victims, and witnesses. The Times offers this commentary:
It also provided telling insights into the fist-inside-a-kid-glove approach that Mr. Smith and his team employed: an aggressive fast-track approach to prosecution coupled with a conspicuously respectful posture toward the defendant. Mr. Smith's decision not to demand any conditions at the arraignment, people familiar with the situation said, reflected a belief that prosecutors should avoid impairing Mr. Trump's ability to campaign. He is also seeking to dodge potentially distracting elements to a case focused on concrete evidence about the former president's handling of classified documents and efforts to obstruct government efforts to reclaim them.
Jack Goldsmith explains that Smith's strategy is designed to lower the "temperature" on this red-hot matter:
"The prosecution of a former president and the current political rival of President Biden is obviously hugely politically fraught and comes against the background of prior Justice Department actions against Trump marked by error and excess," said Jack Goldsmith, a Harvard Law professor and former assistant attorney general. "Trump and his allies will do everything they can to demonize the prosecution as unfair," he added. "It makes perfect sense that Smith, who has the law clearly on his side, would do everything he can to avoid raising the temperature on the matter further."
This background may explain why Smith did not bring an indictment under Section 2071. Such a charge would have ushered in a political storm that distracts from the underlying goal: a fast-track prosecution for failing to turn over the documents.
Conspicuously absent from the indictment was a potential charge that had been listed in the affidavit the Justice Department filed to obtain a search warrant for Mar-a-Lago last summer: Section 2071 of the federal criminal code, which prohibits the concealment and mishandling of sensitive government documents.
It was the only crime on the sheet that might have directly affected Mr. Trump's 2024 presidential bid, requiring that anyone convicted of it "shall forfeit his office and be disqualified from holding any office under the United States."
Many legal scholars believe that the provision is unconstitutional and would have ultimately been struck down if it were imposed on Mr. Trump. But Mr. Smith's team sidestepped the issue altogether, leaving it out of their 37-count indictment on a section of the Espionage Act that imposes a prison term but no restrictions on holding office.
"I think it's a very savvy move not bringing that charge," said John P. Fishwick Jr., who was the U.S. attorney for the Western District of Virginia from 2015 to 2017. "It makes this much less about politics — this is about the evidence, not about blocking him from office."
This strategy seems prudent, and minimizes any charges of politicization. Smith's decision to avoid a Section 2071 charge in Florida may provide some tea leaves about his plans for the District of Columbia with regard to January 6. Many scholars and advocates have urged the special counsel to indict Trump for violating 18 U.S.C. § 2383, the federal insurrection statute. It provides:
Whoever 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, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
There's that language again--Groundhog Day! I think it is widely agreed that Section 2071 cannot be used to disqualify a defendant from the presidency. But there is some debate about whether Section 2383 could disqualify Trump from the White House, to the extent that it invokes Section 3 of the Fourteenth Amendment. Seth and I wrote an article in early-2017 contending that this statute could not disqualify Trump from the presidency. (Ned Foley recently flagged our views on the Election Law Blog). But, to quote a recent brief, our view is probably idiosyncratic. Ultimately, Trump's lawyers may find our views with regard to Section 2383 more persuasive than our views on the federal removal statute.
If the Times is correct about Smith's strategy, then a Section 2383 prosecution would go beyond distracting--it would consume the nation. A single jury in the District of Columbia could make a finding of guilt that could place Trump's ability to run for re-election in doubt. Smith has very good reasons to avoid these problems. If he pursues an indictment based on Trump's January 6 conduct, there are many other charges he could bring that would avoid distracting fights.
To date, DOJ has not indicted anyone on Section 2383. Rather, the government has prosecuted Stuart Rhodes and the Oath Keepers under charges of seditious conspiracy. This statute does not impose any sort of disqualification. Would Special Counsel Smith seek to make Trump the test case for Section 2383? I am doubtful.
In any event, even if Trump were convicted of violating Section 2383, the district court would have no occasion to decide the scope of disqualification. This litigation would almost certainly arise on ballot litigation, with a resolution by the Supreme Court, if not in Congress on January 6, 2025.
