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.
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.
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.
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.
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.”
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.
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.”
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
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.
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.