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Just Say No to a Banana Republic

Whatever the result of the raid on Mar-a-Lago, Trump will not be ineligible to run in 2024 on that basis.

The FBI Executes A Search Warrant At Former President Trump's Mar-A-Lago Estate
(Photo by Eva Marie Uzcategui/Getty Images)

Much has already been written about the FBI raid on former President Trump’s residence in Mar-a-Lago on Monday. Has our nation really devolved into a banana republic in which the regime uses the police to attack its political enemies? Does the Department of Justice know something we the people do not yet know that would legitimize a raid on the former president’s home? Did President Trump secretly know that the FBI was coming and encourage the optics of a “raid” as a theatrical backdrop to his 2024 campaign launch?

The question of what happened at Mar-a-Lago this week does not and cannot have a clear answer at this point. But one thing can be said with clarity: Marc Elias is wrong that this is “a potential blockbuster in American politics” that will disqualify Trump from running for president in 2024. 

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The claim is based on 18 U.S. Code § 2071. This federal statute makes it a crime to willfully destroy or take away any document or other thing belonging to the United States. The statute adds that, in addition to fines and/or jail time, the convicted person “shall forfeit his office and be disqualified from holding any office under the United States.” There it is: the nail in the coffin opponents of Trump have been waiting for. Convict Trump of willfully taking some classified documents when he left the White House and he can never be president again. 

There is, of course, the practical problem that there has not yet been a clear explanation of this raid, what it has uncovered, and which, if any, crime the Department of Justice will try to charge Trump with. Execution of a search warrant is very far from a criminal conviction. But even if we grant the possibility that this raid was legitimate, that Trump willfully carried away federal documents with him when he left the White House, and that a criminal charge under this statute leads to a conviction, the question remains: would Trump be barred from running for president in 2024? The answer is very likely no, and the logic and precedent supporting this are rather convincing.

It is true that Congress passed a criminal law that would seem to prevent a person convicted under it to hold any federal office. The presidency is a federal office. In that sense, the language of 18 U.S. Code § 2071 does seem to exclude the convicted person from being president. But as I have written previously, it is a basic principle of our constitutional republic that Congress does not have the power to change or interpret the Constitution. Article 2, Sec. 1 of the Constitution clearly lays out the qualifications for President of the United States:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

There is a birthplace requirement, a citizenship requirement, and an age requirement. There is no requirement that a president be free from certain types of criminal convictions. 

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It is logical that Congress could not contradict the Constitution, by saying that a person born in Canada can be president or that a person who is 31 years old may be president if he meets certain other qualifications. But what prevents Congress from adding to the qualifications, as long as the additions do not contradict the Constitution? This question has been addressed previously, in a similar context. 

In Federalist 60, Alexander Hamilton wrote about the qualifications of members of the House of Representatives. He was clear that the Constitution alone should set the parameters: “The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature” (emphasis added). 

This question was addressed by the Supreme Court in Powell v. McCormack in 1969. In Powell, the Court heard a case in which Congress tried to exclude by majority vote Mr. Powell, who was duly elected to the U.S. House, on the grounds that he misappropriated public funds and abused the court process. The Court held that, in judging the qualifications of its members, Congress is limited to the qualifications expressly prescribed by Article I of the Constitution. In its conclusion, the Court reminds us that a “fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’” 

Alexander Hamilton and the Supreme Court in Powell were speaking particularly of the qualifications of congressmen, not the president, and there were distinguishing facts and constitutional provisions at play. But the precedent and the logic should be similar in this case. The Constitution provides the qualifications that allow someone to be President of the United States. Congress should have no authority to add, subtract, or otherwise modify those qualifications, and it should be up to the people to elect anyone as president who is constitutionally qualified. A statute passed by Congress should not add a barrier to becoming president that is not contained in the Constitution. This argument has been convincingly made in the past. 

Any attempt to preclude Donald J. Trump’s re-election by these FBI and Department of Justice tactics is likely unconstitutional, and would further damage public trust in our federal institutions. If people want to keep Trump from being elected president in 2024, they should stop making desperate attacks and conducting searches for legal loopholes, make a case to the American people, and defeat him through the primary or general election process. Let’s stop the banana-republic tactics and uphold the dignity of our constitutional republic.

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