Simply Say No to Banana Republics

Politics

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

Photo by Eva Marie Uzcategui/Getty Images

Much already has been written on the FBI raid of former President Trump’s Mar-a-Lago residence on Monday. Has our nation really devolved into a banana republic in which the regime uses the police to attack its political enemies? Is the Department of Justice aware of something that we, the citizens, do not know? 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 about what took place at Mar-a-Lago last week is not one that can be answered. 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.

The claim is based on 18 U.S. Code SS 2071. It is a crime under federal law to destroy any document, or remove any other item belonging to the United States. This statute also states that the person convicted will be subject to jail and fines. Trump was convicted of willfully taking classified documents from the White House. He cannot be elected president again.

There’s a practical issue with this search warrant. There is no clear explanation of what happened, how it was conducted, or which crime, if any that the Department of Justice intends to accuse Trump of. A search warrant execution is not a crime. 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? It is highly unlikely that Trump would be barred from running for president in 18. The logic and precedent backing this conclusion are quite convincing.

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It’s true, Congress passed a criminal code that would make it seem that a person who was convicted of violating the law cannot hold any federal office. A federal office is the presidency. In that sense, the language of 18 U.S. Code SS 2071 does seem to exclude the convicted person from being president. As I’ve written before, the Constitution is not subject to the authority of Congress to alter or amend it. Art. 2, sec. Article 2, Sec.

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 an age, citizenship, and birthplace requirement. It is not required that the president must be exempt from certain types criminal convictions.

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? In a similar setting, this question was addressed before.

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).

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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. In determining the qualifications of Congress’ members, the Court held that only Article I of Constitution applies to judging their qualifications. The Court ruled that Congress is limited to the qualifications required by Article I of the Constitution when judging the qualifications of its members.

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. However, the logic and precedent should be identical in this instance. The Constitution outlines the requirements that allow someone to become President of the United States. Congress shouldn’t have the power to change, add or subtract from these qualifications. It should be left up to citizens to choose a constitutionally qualified president. The Constitution does not provide a way for Congress to create a bar that prevents someone from becoming President. This argument has been convincingly made in the past.

Any attempts to stop Donald J. Trump from being reelected by the FBI or Department of Justice is unconstitutional and will further undermine public trust in 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. Stop the banana-republic tactics, and preserve the dignity of the constitutional republic.

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