In the aftermath of Monday’s FBI raid on former President Donald Trump’s Florida home at his Mar-A-Lago resort ― reportedly an effort to recover classified materials ― some have suggested that Trump may be disqualified from holding future office if he’s found guilty of handling such materials improperly.
The law states that a person convicted of taking, concealing or destroying classified government materials “shall forfeit his office and be disqualified from holding any office under the United States.”
The problem with relying on this statute to disqualify a person from the presidency is that the presidency is an office created by the U.S. Constitution with its own exclusive constitutional qualifications. A range of law scholars, from a variety of ideological and partisan backgrounds, have stated clearly that a person cannot be disqualified from the presidency based on a simple statute.
The Supreme Court has ruled in two prior cases that Congress and the states cannot impose statutory qualifications for holding a seat in Congress. That logic presumably applies to the presidency as well.
In its 1969 decision in Powell v. McCormack, the court ruled 8-1 that the House of Representatives could not exclude Rep. Adam Clayton Powell (D-N.Y.) from office simply because he was accused of a range of crimes including misappropriating House funds. The court said that since the House is a creation of the Constitution, Powell could only be denied office if he did not meet the qualifications provided in the Constitution, and the only way to remove him from office would be through the constitutionally established two-thirds vote for expulsion.
The court again ruled that states cannot impose additional qualifications for congressional office in its 1995 decision in U.S. Term Limits v. Thornton. An Arkansas law imposing term limits on House and Senate members elected from the state was the subject of the case. In a 5-4 decision, the court ruled that states cannot add qualifications for office beyond those spelled out in the Constitution.
The debate over whether a presidential candidate can be disqualified from office for violating the law against taking, concealing or destroying classified materials is not a new one.
This exact dispute came up during the 2016 election, when Democratic nominee Hillary Clinton was accused of improperly handling classified materials by conducting her work as secretary of state through a private email account while maintaining a private email server in her home.
The idea that Clinton could be disqualified from office if she were found guilty of improperly handling classified materials appears to have been first broached on Fox News by then-anchor Megyn Kelly in March 2015. Kelly’s remark that Clinton could not be president because of the statute was quickly rebutted by Matthew Franck in the conservative National Review.
If Congress could impose qualifications for the office of the presidency by statute, it “leads us into all manner of absurdities,” like Congress requiring presidents to have served in the military or attained a certain level of education, Franck wrote.
The issue resurfaced in August 2015 when former Attorney General Michael Mukasey, a Republican, again raised the possibility of Clinton’s legal disqualification from office. Mukasey was rebuked by Seth Barrett Tillman, an originalist law scholar, who argued that Mukasey’s suggestion was “fundamentally misconceived.”
Not only did the Supreme Court precedents in Powell and U.S. Term Limits state that constitutional qualifications for congressional office are exclusive, but, as Tillman pointed out, numerous federal courts of appeals have stated that constitutional qualifications for the presidency are also exclusive.
“On reflection ... Professor Tillman’s [analysis] is spot on, and mine was mistaken,” Mukasey admitted in an email to the libertarian law scholar Eugene Volokh soon afterward. “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.”
While it seems like the disqualification provision of the law on illegal handling of classified materials would not apply to Trump, the issue has not gone before the Supreme Court. If Trump were convicted of this crime and went on to win the GOP presidential nomination ― and a state then decided to exclude him from the ballot based on this law ― he could sue and the question would wind up in court, where he would be likely to prevail.