Candidate Hillary Clinton And The Problem Of Statutory Qualifications

Candidate Hillary Clinton And The Problem Of Statutory Qualifications

Secretary of State Hillary Rodham Clinton

by Foreign and Commonwealth Office

Who Can Be President Of The United States?: Candidate Hillary Clinton And The Problem Of Statutory Qualifications

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) – Faculty of Law

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December 1, 2015

5(1) Brit. J. Am. L. Stud. (peer reviewed) (2016, Forthcoming)


Is the Office of President of the United States subject to statutory disqualification? If former Secretary of State and former Senator Hillary Clinton is convicted under 18 U.S.C. Section 2071, is she disqualified from holding the presidency?

Who Can Be President Of The United States?: Candidate Hillary Clinton And The Problem Of Statutory Qualifications – Introduction: The Key Legal Issues

Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice.1 Nevertheless, such restrictions on democratic choice have a long pedigree2 in a variety of jurisdictions.3 Adjudications relating to qualifications to public office are not uncommon.4 Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence.5 Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States.

Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the November 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping.6 Section 2071 of Title 18 of the United States Code provides:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

Section 2071’s language poses two interesting interpretive challenges.

First, what is the scope of the statute? In other words, does Section 2071’s generally worded “office under the United States” language extend to the presidency?

Second, if Section 2071’s general “office under the United States” language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?

What is the Scope of the Statute?

In determining the scope of Section 2071’s generally worded “office under the United States” language, we cannot rely on clearly established Supreme Court or other federal judicial authority8 because “the application of [Section 2071] to the Presidency has never been tested.”9 Likewise, the courts have not squarely opined on whether the same or closely similar language in other statutes reaches the presidency.10 In the absence of good judicial authority, and for the purpose of expositional clarity, I focus on three approaches for resolving the interpretive issue: the legal populist approach; the historical approach; and the legal presumptions approach.

A. The Legal Populist. The legal populist approach is the interpretive position of the person on the street. The populist’s position is largely an intuition or feeling. As Baron Devlin explained:

He is not expected to reason about anything and his judgement may be largely a matter of feeling. It is the viewpoint of the man on the street—or to use an archaism familiar to all lawyers—the man in the Clapham omnibus. He might also be called the right-minded man.

I expect our rider on the Clapham omnibus (or to make the analogy more on-point, the American rider on the bus going past the Supreme Court of the United States)—if asked to squarely address Section 2071’s meaning—would say:

In everyday language, the presidency is described as an ‘office,’ and the president is an ‘officer.’ Similarly, the presidency is not a state or municipal position; rather, it is a national or federal position whose occupant is responsible to the United States, and its people, as a whole. Therefore the presidency can be characterized as “under the United States.” Because the presidency is an “office” and because the President works for “the United States,” it would seem to follow that the presidency is an “office under the United States” as that language is used in Section 2071.

For example, Megyn Kelly, a national newscaster stated:

And I refer the audience to 18 U.S. [C]ode, [S]ection 2071-B, look at it. ‘Whoever having the custody of any federal record, willfully and unlawfully conceals removes or destroys the same shall be fined or imprisoned or both’ and listen—‘and shall be disqualified from holding any office under the United States.’ If [Hillary Clinton] willfully concealed these emails, not only did she commit a crime, she cannot be president.

Likewise Sean Hannity, another national newscaster, had an exchange on the scope of Section 2071 with Michael Mukasey. Mukasey is a former Attorney General of the United States and also a former Chief Judge of the United States District Court for the Southern District of New York. Hannity and Mukasey stated:

Hannity: Let’s go to the third law that we’re talking about here. And this would be 18 U.S. [C]ode [§] 2071. . . . I would think that [violating Section 2071] would mean you can’t be the [P]resident of the United States . . . . Mukasey: I would think it would mean precisely that, among other things.

Finally, Professor Akhil Amar has stated, without any equivocation or even any acknowledgment of contrary views, that “[t]he presidency is an ‘office under the United States.’”15 Albeit, Amar was explaining how that phrase is used in the Constitution, not Section 2071.

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