(Washington Examiner) With news of the FBI raiding Mar-a-Lago, buzz quickly bubbled up Monday evening about whether former President Donald Trump could be disqualified from holding office again.
The FBI search of the Florida resort was related to Trump’s handling of presidential records, including classified documents, after leaving office, sources told CNN. The search warrant was connected to the National Archives, a senior government official told NBC News.
Such reporting had Marc Elias, the top lawyer for Hillary Clinton’s 2016 presidential campaign who has drawn scrutiny for his role in pushing Trump-Russia collusion claims, pointing to U.S. Code Title 18, Section 2071. “The media is missing the really, really big reason why the raid today is a potential blockbuster in American politics,” Elias said in a tweet.
The media is missing the really, really big reason why the raid today is a potential blockbuster in American politics.👇 pic.twitter.com/3BdI9NA9Az
— Marc E. Elias (@marceelias) August 9, 2022
The passage that says anyone “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,” was the one he highlighted.
Former federal prosecutor Harry Litman argued Elias made a “HUGE POINT” about the records provision the Justice Department appears to be investigating. “So this could be the whole enchilada in terms of DOJ resolution,” he said.
per @marceelias HUGE POINTt:the records provision they’re investigating carries the penalty that someone convicted “shall forfeit his office and be disqualified from holding any office under the United States.” So this could be the whole enchilada in terms of DOJ resolution.
— Harry Litman (@harrylitman) August 9, 2022
MSNBC contributor Frank Figliuzzi, who served formerly as the assistant director for counterintelligence at the FBI, also offered some words of caution. “First, I want to caution people. The majority of people in these cases … If we’re indeed correct that this is largely about a National Archives case, they don’t get charged, but then again, the majority of people turn over their documents,” he said on MSNBC host Lawrence O’Donnell’s show.
Convictions under U.S. Code Title 18, Section 2071 were previously debated during the 2016 presidential cycle after former Attorney General Michael Mukasey argued in 2015 that Hillary Clinton would be disqualified from holding office if convicted over erasing materials from a private email server she used while serving as secretary of state.
After legal scholars pushed back on the assertion, particularly with the view that applying the statute to presidential candidates would be unconstitutional, Mukasey walked back his comments. “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,” he said in an email to UCLA School of Law professor Eugene Volokh, as reported by Snopes.com.
Despite Elias’s tweet on Trump going viral, the lawyer acknowledged in a follow-up missive the legal quandary at play.
“Yes, I 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,'” Elias said.
Allies of Trump expressed suspicions that the raid was part of a political move meant to ward off another presidential run — something Trump has strongly hinted he will partake in for 2024. Steve Bannon, a former White House aide who was pardoned by Trump, noted Elias’s tweet during a call on Fox News.
Steve Bannon claims that the White House was behind the raid of Trump, and calls for the FBI to be defunded, so yes, Fox News and Steve Bannon are calling for the defunding of law enforcement. pic.twitter.com/5QaYFuIpXU
— Sarah Reese Jones (@PoliticusSarah) August 9, 2022
