The FBI search of former President Donald Trump’s Mar-a-Lago estate raises questions about whether a statute that bans the removal of official records could bar Trump from running for president in 2024.
Trump said in a statement Aug. 8 that Mar-a-Lago was “currently under siege, raided, and occupied by a large group of FBI agents.”
“They even broke into my safe!” Trump said.
Without access to the search warrant or other investigative documents, there is not a lot that we know about the search. Spokespersons for the FBI and Justice Department told PolitiFact they had no comment.
Multiple news reports connected the investigation to official documents brought from the White House to Mar-a-Lago. The National Archives confirmed in February that it had communicated with Trump representatives in 2021, which resulted in the transfer of 15 boxes in January, including classified national security materials. The National Archives alerted the Justice Department.
In an interview with Fox News’ Sean Hannity, the former president’s son Eric Trump said “the purpose of the raid, from what they said, was that the National Archives wanted to corroborate whether or not Donald Trump had any documents in his possession,” adding “and my father worked so collaboratively with them for months.”
Federal statute says it is a crime to willfully and intentionally remove official records and that such a crime would disqualify the defendant from “holding any office under the United States.” But some legal scholars say that statute can’t be used to bar Trump from a 2024 presidential bid. The Constitution’s list of criteria to run for president mentions only age, citizenship and residency — there is no mention of criminal charges or convictions.
Whether Trump is ultimately charged by prosecutors is a matter of speculation. Trump is the subject of multiple investigations, including for his efforts to remain in office despite losing in 2020, and his role in the Jan. 6 attack on the U.S. Capitol.
The Constitution doesn’t bar criminals from running for president
Social media users noted that the FBI executed the search warrant at Mar-a-Lago on Aug. 8, the same day that President Richard Nixon announced his resignation in 1974. Nixon was the inspiration for the Presidential Records Act of 1978, which requires presidential records to be stored with the National Archives for safekeeping.
“The law overturned the long-running tradition of private ownership that dated to the beginning of the Republic by declaring that after Jan. 20, 1981, the records of all presidents would be the property of the American people,” Bruce Montgomery, a professor at the University of Colorado, Boulder, previously told PolitiFact.
Federal statute 18 U.S. Code 2071 had long banned the removal, concealment or destruction of presidential records. It says “willfully and unlawfully” removing such records can result in a penalty of up to three years in prison and that the defendant “shall forfeit his office and be disqualified from holding any office under the United States.”
Marc Elias, a lawyer who litigates election law cases on behalf of Democrats, highlighted that line about disqualification and tweeted: “The media is missing the really, really big reason why the raid today is a potential blockbuster in American politics.”
But in a subsequent tweet, Elias wrote that there would undoubtedly be a “constitutional challenge to the application of this law to a president. One can speculate how it would turn out, but it is unprecedented and would be fully litigated.”
Rick Hasen, an election law expert at the University of California, Los Angeles, said he doesn’t see a conviction for violating 18 U.S. Code 2071 preventing Trump from running for office.
“That statute cannot trump the Constitution, which sets the exclusive qualifications for President,” Hasen wrote on his election law blog. “So this is not a path to making Trump legally ineligible to run for office.”
The U.S. Constitution upholds the principle that voters decide who shall represent them. The Constitution says only natural born citizens or U.S. citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president.
Previous Supreme Court rulings hold that a state cannot prohibit indicted or convicted felons from running for federal office, and Congress cannot add qualifications to the office of president, said Derek Muller, a law professor at the University of Iowa.
Someone could use the records statute to attempt to challenge Trump’s potential run for office, and the courts would then rule on the constitutionality of his bid, said Georgetown law professor Victoria Nourse.
Convicted felons have run for president and lost. Lyndon LaRouche was convicted in 1988 of tax and mail fraud conspiracy and ran for president multiple times between 1976 and 2004. Eugene Debs, convicted of violating the Espionage Act of 1917 for an anti-war speech, was in a federal prison when he ran for president as a socialist in 1920. Debs’ supporters handed out campaign buttons for “Prisoner 9653.”
While it’s legally possible to run for office behind bars, it would pose some political challenges in terms of limiting a candidate’s ability to fundraise or hold rallies.
Proving a case under the records law involves specific criteria
The Justice Department lays out multiple criteria to prove a case under the records law, including that the “defendant must act intentionally with knowledge that he is violating the law.” A previous case suggests the defendant must know that the documents are public records.
Those elements “may not be that hard to prove since presidents are briefed on the importance of presidential records and their preservation, not to mention their security implications,” Nourse said.
Douglas Cox, a City University of New York law professor, said prosecutors would not necessarily have to show that Trump physically removed the records. If Trump’s aides removed records with him or in his direction, Trump could be responsible for violating the law.
“But of course searches of his personal office and safe could very well provide specific evidence of Donald Trump’s intent and personal involvement in removal and/or subsequent concealment,” Cox said.
There are other ways that Trump could be disqualified from running, Hasen wrote.
Congress could act to bar Trump from running again under Section 3 of the 14th Amendment, which says that public officials cannot serve in any future federal, state, or military office if they engaged in “insurrection or rebellion.” The Senate hasn’t pursued that route. It could have banned Trump from running again during impeachment proceedings and did not. It’s unknown how the committee investigating Trump’s actions around the Jan. 6 attack may address the prospect of Trump’s candidacy.
The timing of any potential charges against Trump is unclear, but federal prosecutors sometimes avoid pursuing charges close to an election to avoid accusations that their actions were intended to help or harm a candidate or party. That’s why it was surprising when FBI director James Comey during the final days of the 2016 campaign apprised lawmakers of new emails potentially relevant to the investigation of Democratic presidential candidate Hillary Clinton.
But prosecutions close to Election Day are not unheard of: Officials announced the indictment against Caspar Weinberger, the former defense secretary under President Ronald Reagan, for misleading Congress in June 1992, but a judge threw out the indictment. The independent counsel refiled an indictment on other charges on Oct. 30, just four days before the 1992 election, when Reagan’s vice president, George H.W. Bush was running for a second term in the White House.
Attorney General Merrick Garland wrote in a May memo about “election year sensitivities” that no investigation or prosecution should take place “for the purpose of affecting any election.” The memo does not expressly ban the filing of charges but says prosecutors should consult public integrity guidelines.
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