Colorado Can’t Disqualify Trump

Applying the Insurrection Clause to the presidency would have given rogue states too much power.

By David B. Rivkin, Jr., and Lee A. Casey

February 7, 2024, in the Wall Street Journal

The case of Trump v. Anderson, in which Donald Trump asks the Supreme Court to reverse a ruling that bars him from Colorado’s presidential ballot, raises many complicated legal and factual questions. The justices should ignore them and decide a simple one: Does Section 3 of the 14th Amendment, which disqualifies certain former officeholders who have “engaged in insurrection,” apply to the presidency?

As Michael Mukasey has argued in these pages, the answer is no. Those who are covered by the Insurrection Clause are specifically disqualified from serving as members of Congress or the Electoral College—not as president or vice president. They are also barred from state office and from “any office, civil or military, under the United States.” But “any office” refers to appointive posts such as judges, generals and cabinet secretaries, and “officers of the United States” are appointed, not elected.

This raises an obvious question: Why would the authors of the 14th Amendment exclude the presidency? For two compelling and practical reasons, which reinforce Section 3’s plain meaning.

First, by the time the amendment was ratified in 1868, the states had largely adopted a system whereby presidential electors, instead of being appointed by state legislatures, were chosen by popular vote after committing to a particular candidate. If no former Confederates (or more modern insurrectionists) could stand for election as presidential electors, there would be little chance of an insurrectionist president. (As Mr. Mukasey also observed, if the president were covered, there would be no reason to cover presidential electors, who wouldn’t be able to elect an insurrectionist if they wanted to.)

Second, there was no way to cover the presidency without violating the Constitution’s established federalism principles, which require states to act uniformly when dealing with federal laws and institutions. These principles are at the root of several constitutional provisions, including the equal representation of states in the Senate, the Supremacy Clause and the Full Faith and Credit Clause. These provisions are indispensable in making the federal republic functional.

Applying Section 3’s disqualification to the presidency would create exactly the uniformity problem the Supreme Court now faces—different states reaching different conclusions about what is and isn’t an insurrection in the context of a national election.

There is ample evidence that the 14th Amendment’s drafters paid great attention to federalism concerns. This is particularly true regarding the amendment’s first two sections, which dramatically reshaped the relationship between U.S. citizens and the federal and state governments by requiring states to respect federal constitutional rights. As legal scholar Kurt T. Lash recounted in “Federalism and the Original Fourteenth Amendment,” a 2019 article, radical Republicans, who favored stronger federal power, clashed with moderate Republicans determined to preserve states’ rights under the Constitution’s original Madisonian federalism architecture. It is implausible that they would have fought hard to protect federalism while permitting each state to determine presidential disqualification for itself.

In U.S. Term Limits v. Thornton (1995), the Supreme Court held that states couldn’t impose their own qualifications on members of Congress. Justice John Paul Stevens’s majority opinion discussed at length how elections to the national legislature involved the people of the U.S. rather than citizens of each state, requiring that qualifications be nationally uniform. This logic is even more compelling when it comes to the president, who is elected by the entire nation. As Alexander Hamilton wrote in Federalist No. 68, the Framers made the “appointment of the president” depend “in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment”—members of the Electoral College.

The Constitution authorizes state legislatures to determine how presidential electors are selected—and even to appoint them directly, as Colorado did in 1876—and the qualifications for serving as president are stated in the constitutional text. There is no indication that the states may interpret these for themselves. Stevens wrote that while states can adopt “election procedures” (his emphasis) that govern access to the ballot—such as signature requirements for independent candidates or “sore loser” provisions that bar a third-party run by a former candidate for a major-party nomination—they can’t set or revise qualifications for federal office.

Some of Mr. Trump’s opponents have pointed hopefully to Hassan v. Colorado, a 2012 decision of the 10th U.S. Circuit Court of Appeals in which then-Judge Neil Gorsuch upheld the state’s authority to bar from the ballot a naturalized citizen who wanted to run for president. Abdul Karim Hassan asserted an eccentric theory that the 14th Amendment vitiated the requirement that the president be a natural-born citizen. Judge Gorsuch ruled that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office”—not that state officials or judges could decide what the qualifications for federal office are.

The meaning of “natural-born citizen” is open to dispute in certain unusual cases involving would-be candidates born overseas to American parents or in unincorporated U.S. territories (where the Constitution doesn’t fully apply). If such a dispute arose and states responded to it differently, the federal courts would have to intervene quickly to impose uniformity. To avoid precisely that sort of situation, the drafters of the 14th Amendment left the presidency out of Section 3.

A Supreme Court decision to that effect would be consistent with the doctrine that judges should avoid deciding constitutional issues unnecessarily. Was the riot of Jan. 6, 2021, an “insurrection”? If so, what does it mean to have “engaged” in it? Does disqualifying someone from office require an act of Congress or a criminal conviction? These questions may be pertinent in future cases, but not in Trump v. Anderson.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/colorado-cant-disqualify-trump-from-2024-election-c12a4bc9

This Trump Indictment Imperils the Presidency

By David B. Rivkin, Jr., and Lee A. Casey

August 2, 2023, in the Wall Street Journal

The latest indictment of Donald Trump takes the courts and the country into uncharted territory. Special counsel Jack Smith and a District of Columbia grand jury accuse Mr. Trump of conspiring to steal the 2020 presidential election and charge him, among other things, with defrauding the U.S. But Mr. Trump’s status as president when the alleged crimes took place raises questions about whether he can be successfully prosecuted—and, if he is, troubling implications for future presidents.

The president is immune from civil and criminal liability for actions taken in the execution of the office. That immunity is absolute, like the immunity accorded to judges and prosecutors. Courts have allowed only that the president may be subject to subpoena in certain circumstances that don’t impose great burdens on his ability to function as chief executive.

Former presidents can be held liable for personal actions while in office, but only those that fall beyond “the outer perimeter of his official responsibility.” In Nixon v. Fitzgerald (1982), the Supreme Court held that Richard Nixon was immune from a civil damages action in which a former federal employee claimed he was illegally fired as punishment for revealing Pentagon cost overruns. The justices reasoned that absolute immunity for official acts was “a functionally mandated incident of the President’s unique office,” since “personal vulnerability” to suit could warp a president’s decision-making and deter him from performing his duties “fearlessly and impartially.” That’s obviously even truer of criminal liability, so the court can be expected to extend presidential immunity accordingly. (An exception is offenses for which a former president has been impeached and convicted, the prosecution of which the Constitution explicitly authorizes.)

The critical legal question, then, is whether Mr. Trump’s alleged offenses fall within the “outer perimeter” of his responsibilities as president. The courts have only started to grapple with this issue. In Thompson v. Trump (2022), Judge Amit Mehta of the U.S. District Court for the District of Columbia held that Mr. Trump’s contacts with local election officials after the 2020 election weren’t official acts. That case, which involved a civil action against Mr. Trump by plaintiffs alleging injuries suffered during the Jan. 6, 2021, riots, could be reversed by the D.C. Circuit or the Supreme Court.

Whatever the higher courts make of Judge Mehta’s conclusion, he made a key analytical error in reaching it. He fell into the trap of relying on Mr. Trump’s motivation, in the guise of his “purpose,” which was to preserve his “incumbency.” But the justices in Nixon made clear that the determination of whether a president was acting in his official capacity couldn’t be based on either motivation or the legality of his actions, as that would “subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.” The court also noted that the president’s discretionary authority under the Constitution is so broad that “it would be difficult to determine which of the President’s innumerable ‘functions’ encompassed a particular action.”

Mr. Smith fell into the same trap. His focus vis-à-vis Mr. Trump is very much on whether he honestly believed the election had been stolen from him. The proper question is whether the actions he allegedly took after the 2020 election fall objectively within “the outer perimeter of his official responsibility.”

The strongest argument that they don’t is that supervision of state election officials, the selection of presidential electors, and the vice president’s role in counting those votes aren’t ordinarily presidential responsibilities. But it isn’t so clear that, in a case where voting irregularities were reported in the media from numerous critical states—even if incorrectly—the president has no official role in investigating and addressing those claims.

The selection of presidential electors is in part a matter of federal law. The Constitution vests this task in the state legislatures under the Electors Clause, which governs presidential elections. Because the states had no such authority before the Constitution, this critical power is substantially federal in character.

In Moore v. Harper (2023), the Supreme Court recognized that a parallel constitutional provision, the Elections Clause—which divides authority for setting the rules of congressional elections between the state legislatures and Congress—was sufficiently federal in nature to justify the high court’s review of state court decisions involving these rules, even though it ordinarily has no authority to scrutinize a state court’s interpretation of state laws.

It was Mr. Trump’s constitutional duty to “take care that the laws be faithfully executed.” He had no power to direct state officials’ actions, but urging them to ensure the integrity of federal elections could fall within the outer bounds of his responsibility. He has no authority to direct the vice president’s discharge of his constitutional duties as Senate president, but his exhorting or pleading with the vice president to take certain actions is arguably within the bounds of his authority. Presidents do it routinely when the vice president is called on to cast a deciding Senate vote.

Judge Mehta adopted an unduly crabbed legal test for what constitutes an official presidential action. He asserted that “a sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College.” But the Take Care Clause, which is a key component of presidential duties, is broadly framed to include ensuring compliance with all federal laws, including the Constitution. Moreover, the clause is only a subset of the power conveyed to the president by the Vesting Clause, which provides that the “executive power shall be vested in a President of the United States.”

Pursuant to that broad authority, a president may communicate with, cajole and even browbeat officials over whom he has no supervisory authority, urging them to pursue policies that he believes are in the national interest. Many presidents take such actions; both Mr. Trump and President Biden, for instance, pressed states to follow federal Covid-19 recommendations. Wise or not, those were undoubtedly official actions.

The indictment of Mr. Trump means that the Supreme Court will almost certainly be called on to determine the scope of a former president’s immunity and whether Mr. Trump’s actions after the 2020 election fell within the outer reaches of his official responsibilities.

Mr. Trump’s conduct may be hard to defend, but the stakes here are far greater than his fate. One can easily envision a future president using military force, sending weapons to another country, engaging in a major diplomatic endeavor or authorizing a prosecution based on what opponents believe—perhaps rightly—are self-serving lies. Under Mr. Smith’s theory, he could be charged with defrauding the United States.

The specter of such prosecutions would cripple the ability of all future presidents to perform their constitutional responsibilities vigorously and fearlessly. That’s why we have presidential immunity in the first place.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/this-trump-indictment-imperils-the-presidency-charges-crime-election-race-2024-307a4021

Is Alvin Bragg’s Case Against Trump Constitutional?

By David B. Rivkin Jr. and Kristin A. Shapiro

April 17, 2023, in the Wall Street Journal

Manhattan District Attorney Alvin Bragg’s indictment of Donald Trump could mean trouble down the road for Joe Biden. “I think our Republican AGs and DAs”—attorneys general and district attorneys—“should get creative,” Mike Davis, a Republican former Senate staffer, told the New York Post. Rep. James Comer told Fox that he’s heard from at least two prosecutors who “want to know if there are ways they can go after the Bidens now.”

Mr. Biden himself is currently safe under the accepted view that sitting presidents are immune from prosecution. But under the Trump precedent, what’s to stop an ambitious Republican prosecutor somewhere from bringing dubious state charges against him before a hostile jury after he leaves office? Likewise for his successors of either party. Every four to eight years, prosecutors would order up a presidential ham sandwich. Presidents might end up having to flee the country when they leave office.

But there’s a way Mr. Trump could stop the madness that would serve his own interests as well as his successors’. His lawyers should file a notice in the Southern District of New York to remove the case to federal court under a unique legal defense: immunity under the U.S. Constitution’s Supremacy Clause.

The clause provides that federal laws, including the Constitution, “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” The Supreme Court stated in McCulloch v. Maryland (1819) that “it is of the very essence” of the federal government’s supremacy “to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” The justices invalidated Maryland’s tax on the Bank of the United States on grounds that the power to tax the federal government would make a state “capable of arresting all the measures of the government, and of prostrating it at the foot of the states.”

One pivotal aspect of the Supremacy Clause is its provision of immunity to federal officers from state criminal prosecution for actions relating to their federal duties. The seminal case is In re Neagle (1890), in which the justices held that California couldn’t criminally prosecute a federal marshal for killing a man in defense of Justice Stephen Field. If a federal officer “can be arrested and brought to trial in a state court for an alleged offense against the law of the state, yet warranted by the federal authority they possess,” the court found, “the operations of the general government may at any time be arrested at the will of one of its members.”

To be sure, the case against Mr. Trump involves conduct that wasn’t “warranted by the federal authority” he possessed. But there is a strong argument that Supremacy Clause immunity should extend to any state criminal prosecutions of federal officers undertaken because of their federal service, even if the charged conduct is unrelated to their federal duties. Permitting states to burden former federal officers on account of their federal services offends the Supremacy Clause’s core principles and makes it easy for aggressive state prosecutors to circumvent. As the Supreme Court warned in Neagle, “unfriendly” states could administer the law “in such a manner as to paralyze the operations of the government.” That threat exists anytime former or current federal officers are targeted for criminal prosecution because of their federal service. A president or other official can’t lead effectively under constant threat of retaliatory prosecution.

Mr. Trump’s foes like to say that no one is above the law; and Mr. Biden’s enemies would no doubt adopt the same slogan. But Supremacy Clause immunity wouldn’t vitiate that principle. It wouldn’t prevent federal prosecutions, and it would protect against state criminal prosecutions only when the prosecutor targeted the defendant for his federal service. Mr. Trump could still be prosecuted if he shot a passerby on Fifth Avenue.

A recognition of Supremacy Clause immunity in this context would involve an inquiry into a prosecutor’s state of mind, something courts are reluctant to undertake in most contexts. But not all—courts are regularly required to determine, for example, whether a prosecutor has engaged in racial discrimination in jury selection, or whether a state criminal prosecution is motivated by a desire to harass the defendant.

First Amendment case law also recognizes, in the context of protecting core constitutional rights, the impermissibility of disparate law-enforcement treatment. In Nieves v. Bartlett (2019), the high court held that probable cause isn’t sufficient to block a retaliatory-arrest claim “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

An inquiry into whether a state criminal prosecution was undertaken because of the defendant’s federal service would involve judicially manageable questions such as whether a reasonable prosecutor would bring the charges and whether there are indicia of political retribution. Mr. Trump has a strong argument here. Does anyone believe he’d be prosecuted for anything having to do with Stormy Daniels if he hadn’t become president?

Federal officers, including former officers, have a statutory right to remove state civil or criminal cases against them “for or relating to any act under color of such office” to federal court (emphasis added). The U.S. Supreme Court has interpreted this language broadly, explaining in Willingham v. Morgan (1969) that “the test for removal should be broader, not narrower, than the test for official immunity” because the purpose of the statute “is to have the validity of the defense of official immunity tried in a federal court.”

In Jefferson County v. Acker (1999), the justices permitted removal of state actions against two federal judges seeking collection of a state occupational tax. The court explained that, even though the tax was imposed on the judges personally, it was effectively a tax on the performance of their federal duties, thereby providing the “essential nexus” between their official duties and the state prosecution.

Mr. Trump has 30 days after his arraignment—until May 4—to invoke the federal-officer removal statute. Because a novel and important constitutional issue would be at stake, the case could easily reach the Supreme Court, and it would be wise for the federal courts to delay any state trial until Mr. Trump’s immunity defense is resolved. With only 21 months remaining in his term, Mr. Biden might find himself quietly rooting for a decision in his predecessor’s favor.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Shapiro served as an attorney-adviser at the Justice Department’s Office of Legal Counsel during the Trump and Biden administrations and is a senior fellow at the Independent Women’s Forum. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/is-braggs-case-against-trump-constitutional-supremacy-clause-indictment-federal-state-court-new-york-6adffbaa

The Trump Warrant Had No Legal Basis

By David B. Rivkin Jr. and Lee A. Casey

August 22, 2022, in the Wall Street Journal

Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago? The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.

The warrant authorized the FBI to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519” (emphasis added). These three criminal statutes all address the possession and handling of materials that contain national-security information, public records or material relevant to an investigation or other matters properly before a federal agency or the courts.

The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.

Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.

The PRA dramatically changed the rules regarding ownership and treatment of presidential documents. Presidents from George Washington through Jimmy Carter treated their White House papers as their personal property, and neither Congress nor the courts disputed that. In Nixon v. U.S. (1992), the U.S. Circuit Court of Appeals for the District of Columbia held that Richard Nixon had a right to compensation for his presidential papers, which the government had retained under the Presidential Recordings and Materials Preservation Act of 1974 (which applied only to him). “Custom and usage evidences the kind of mutually explicit understandings that are encompassed within the constitutional notion of ‘property’ protected by the Fifth Amendment,” the judges declared.

The PRA became effective in 1981, at the start of Ronald Reagan’s presidency. It established a unique statutory scheme, balancing the needs of the government, former presidents and history. The law declares presidential records to be public property and provides that “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records.”

The PRA lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access. Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.

The PRA explicitly guarantees a former president continuing access to his papers. Those papers must ultimately be made public, but in the meantime—unlike with all other government documents, which are available 24/7 to currently serving executive-branch officials—the PRA establishes restrictions on access to a former president’s records, including a five-year restriction on access applicable to everyone (including the sitting president, absent a showing of need), which can be extended until the records have been properly reviewed and processed. Before leaving office, a president can restrict access to certain materials for up to 12 years.

The only exceptions are for National Archives personnel working on the materials, judicial process, the incumbent president and Congress (in cases of established need) and the former president himself. PRA section 2205(3) specifically commands that “the Presidential records of a former President shall be available to such former President or the former President’s designated representative,” regardless of any of these restrictions.

Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”

Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.

In making a former president’s records available to him, the PRA doesn’t distinguish between materials that are and aren’t classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present—making this a basis on which a president can impose a 12-year moratorium on public access.

The government obviously has an important interest in how classified materials are kept, whether or not they are presidential records. In this case, it appears that the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room. If that was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-trump-warrant-had-no-legal-basis-mar-a-lago-affidavit-presidential-records-act-archivist-custody-classified-fbi-garland-11661170684

Trump Can’t Be ‘Disqualified’ Over Documents

By David B. Rivkin, Jr., and Lee A. Casey

August 10, 2022, in the Wall Street Journal

The warrant under which federal agents searched Donald Trump’s Florida home hasn’t been made public, but press leaks suggest that it was related to the former president’s suspected mishandling of official documents. That has prompted speculation that Mr. Trump could be prosecuted under a law governing the misuse of federal government documents, which includes a provision for disqualification from federal office. According to this theory, if Mr. Trump is convicted, he would be ineligible to serve a second term as president. It won’t work. The theory is deficient on both statutory and constitutional grounds.

Presidential records were traditionally considered the former president’s personal property. Congress acknowledged this in the Presidential Libraries Act of 1955, which “encouraged”—but didn’t require—ex-presidents to deposit their papers for the benefit of researchers and history.

After President Richard Nixon resigned in August 1974, he struck an agreement with the archivist of the United States to donate his papers, but he reserved the right to destroy certain materials, including some of the infamous Watergate tapes. To prevent this, Congress enacted the Presidential Recordings and Materials Preservation Act of 1974. That law, which applied only to Nixon, required these materials to be secured by the government and ultimately made public under appropriate regulations. It provided for financial compensation to the former president, a further acknowledgment of his property interest in the materials.

The Presidential Records Act of 1978 addressed the handling of later presidents’ papers. The PRA asserts government ownership and control of “presidential records,” as defined in the statute, and requires the archivist to take possession of these records when a president leaves office, to preserve them, and to ensure public access. There are important exceptions—in particular, for qualifying materials designated by a lame-duck president to be held confidential for 12 years after he leaves office. These materials include “confidential communications requesting or submitting advice, between the president and the president’s advisers, or between such advisers.”

The law also directs presidents to “assure that the activities, deliberations, decisions, and policies” reflecting the execution of their office are “adequately documented.” Once created, these records must be preserved and managed, or disposed of, in accordance with the statute. The PRA defines presidential records to include “documentary materials” created or received by the president or his immediate staff in carrying out activities related to his official duties. Presidential records don’t include records of a “purely private or nonpublic character” unrelated to the execution of the office.

Significantly, while the PRA vests the U.S. District Court for the District of Columbia with jurisdiction over any action brought by a former president claiming a violation of his rights or privileges under the act, it establishes no penalties, civil or criminal, for its violation. The statute also guarantees that “presidential records of a former president shall be available to such former president or the former president’s designated representative.”

Other federal statutes may permit the prosecution of people who improperly dispose of presidential records, which are now considered government property. The one of most interest to Mr. Trump’s foes appears to be 18 U.S.C. Section 2071(b), which imposes fines and up to three years’ imprisonment on anyone having custody of records deposited in a “public office” who “willfully and unlawfully” mishandles these records. It provides that on conviction, the defendant “shall forfeit his office and be disqualified from holding any office under the United States.”

But the Constitution forbids that result with respect to the presidency. Even assuming the government could prove beyond a reasonable doubt that Mr. Trump deliberately mishandled government documents knowing this to be a violation of federal statute—a difficult task, since the PRA itself guarantees his access to his presidential records and former presidents are generally entitled to receive classified information—a court couldn’t disqualify him from serving as president.

The Constitution establishes the qualifications for election to the presidency: Only natural-born American citizens over 35 who have been U.S. residents for at least 14 years may serve. The Constitution also provides the only mechanism whereby an otherwise qualified person may be disqualified from becoming president: This penalty can be imposed (by a separate vote of the Senate) on someone who has been impeached and convicted for high crimes and misdemeanors. The proposed application of Section 2071(b) to the presidency would create an additional qualification—the absence of a conviction under that statute—for serving as president. Congress has no power to do that.

In Powell v. McCormack (1969) and U.S. Term Limits Inc. v. Thornton (1995), the Supreme Court decided comparable questions involving the augmentation of constitutionally established qualifications to serve in Congress. In the former case, the House refused to seat a constitutionally qualified and duly elected member, Rep. Adam Clayton Powell Jr. of New York, because it concluded he had diverted House funds to his own use and falsified reports of foreign-currency expenditures. The justices ruled that Powell couldn’t be denied his seat on these grounds, as that would effectively add an extraconstitutional “qualification” for office. That, they concluded, would deprive the people of an opportunity to elect candidates of their choice, contrary to the Constitution’s structure. The court cited Federalist No. 60, in which Alexander Hamilton wrote: “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.”

The high court reaffirmed that conclusion in Thornton, which struck down an Arkansas ballot measure imposing term limits on the state’s U.S. representatives and senators. The justices articulated as their “primary thesis” that “if the qualifications for Congress are fixed in the Constitution, then a state-passed measure with the avowed purpose of imposing indirectly such an additional qualification”—in this case, not having already served a specific number of terms—“violates the Constitution.”

Using Section 2071(b) to disqualify Mr. Trump (or anyone else) from serving as president is unsupportable under Powell and Thornton. Such a claim would be far weaker than the one the House made in Powell, as the constitution authorizes each congressional chamber to judge the “qualifications of its own members” but gives Congress no authority over presidential qualifications. The only constitutional means to disqualify a president for wrongdoing is through impeachment and conviction.

If preventing Mr. Trump from running in 2024 was the purpose of the Mar-a-Lago search, the government wasted its time and the taxpayers’ resources.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/trump-cant-be-disqualified-over-documents-fbi-mar-a-lago-presidential-records-act-constitution-impeachment-conviction-supreme-court-2024-11660159610

How Trump or Biden Can Get Serious About Human Rights in Cuba

By Paula J. Dobriansky and David B. Rivkin Jr.

Nov. 11, 2020, in the Wall Street Journal

As an insular nation with a population smaller than Ohio’s, Cuba plays an outsize role in both world affairs and U.S. domestic policy. Either President Trump, who won Florida, or Joe Biden, who’d have liked to, should take stock of the Cuban regime’s actions—among them gross violations of human rights, efforts to destabilize the Western Hemisphere, and broad collaboration with China, Iran, North Korea and Russia. The U.S. needs a bold new approach, using corruption-focused sanctions against Cuban officials and their accomplices.

One of the most reprehensible aspects of Cuban statecraft has been its trafficking every year of some 50,000 medical doctors, who are effectively enslaved and forced to work in other countries. “The Cuban regime takes up to 90% of what they charge . . . other countries for each doctor, pocketing considerable revenues and exploiting the doctors, who receive but a pittance,” Michael Kozak, the acting assistant secretary of state for Western Hemisphere affairs, said in an April briefing. Cuban government 2018 figures indicate slave labor brings in $7 billion a year and that it is the regime’s single largest source of revenue, accounting for 60% of its total foreign income.

Past U.S. administrations have pursued various policies toward Cuba, ranging from the decades-long economic embargo and restrictions on travel to a “normalization” policy under President Obama. Mr. Trump rolled back the Obama administration’s policy and reimposed comprehensive sanctions—but more needs to be done.

The U.S. should target Havana’s most heinous policies and do so in a way that would be difficult for its allies and supporters to counteract. The key to the new strategy is the Global Magnitsky Act of 2016, known informally as GloMag. It authorizes sanctions to cut off Cuban officials and their accomplices from global financial services, augmenting traditional sanctions that have cut them off from the U.S. financial industry.

The 2012 Magnitsky Act targeted individual Russian officials involved in the killing of lawyer Sergei Magnitsky in prison in 2009. The GloMag expanded that regime to cover foreign government officials implicated in human-rights abuses and corruption anywhere in the world.

President Trump further expanded the GloMag program in 2017, through Executive Order 13818, which broadens the scope of conduct that can trigger sanctions from “gross violations of internationally recognized human rights” to “serious human rights abuse,” and replaces “significant acts of corruption” with the broader term “corruption.” Since the law’s passage, the U.S. has imposed GloMag sanctions on individuals and entities from more than 20 countries, most recently designating for corruption Gibran Bassil, a senior Lebanese official. Still, these designations came in a trickle, rather than a wave.

Sanctions—including asset freezes, travel bans and exclusion from financial services—should be imposed on Cuban government officials involved in a variety of acts, all of which inevitably involve corruption, such as human trafficking, violating sanctions against Iran and North Korea, and drug trafficking. Sanctions should also target their agents or associates, whether or not they work for the government. There is sufficient available evidence that the Treasury’s Office of Foreign Assets Control could quickly make GloMag designations and rapidly adjust them as the targets attempt to circumvent sanctions. These designations could also be made even more expeditiously by a presidential executive order.

If adroitly deployed on a large scale, GloMag sanctions would cut deeply into Havana’s revenues and impair the ability of virtually all Cuban officials and their allies to do business or even travel. GloMag and other legal tools also allow the U.S. to reach third parties, who have financial or other dealings with targeted Cuban officials. Those parties could be subjected either to sanctions or criminal prosecution. The availability of these legal tools would reduce support for the Cuban regime world-wide.

Because European Union governments and other U.S. allies have vigorously embraced anticorruption policies, they would find it difficult to oppose this strategy. Canada, Britain and several other Western countries have GloMag-like sanction statutes of their own.

Domestically, a strong stand against the modern slave trade that underpins Havana’s statecraft should draw bipartisan support. Internationally, given Britain’s indispensable role in eradicating the trans-Atlantic slave trade in the 19th Century, London should be a U.S. partner in cracking down on Cuba-driven slave trade and corruption. By strategically employing GloMag, the U.S. can curtail Cuba’s malign activities and push the Cuban regime toward major reforms.

Ms. Dobriansky is a senior fellow at Harvard’s Belfer Center. She served as undersecretary of state for global affairs, 2001-09. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/how-trump-or-biden-can-get-serious-about-human-rights-in-cuba-11605134209