Records Act Conviction Would Not Bar Trump Run

Published on

Records Act Conviction Would Not Bar Trump Run; Constitution Alone Sets Conditions – Twice Ruled Supreme Court

Donald Trump Would Not Be Barred From Running For Office

WASHINGTON, D.C. (August 9, 2022) – Speculation that a criminal conviction of former president Donald Trump – whether or not based in whole or in part on documents seized in a raid on Mar-O-Lago – would prevent him from running again for president seems incorrect, based upon two Supreme Court decisions, concludes public interest law professor John Banzhaf.

Get Our Activist Investing Case Study!

Get The Full Activist Investing Study In PDF

Q2 2022 hedge fund letters, conferences and more


It is true that 18 U.S. Code § 2071 [Concealment, removal, or mutilation generally] does provide that a person convicted "shall forfeit his office and be disqualified from holding any office under the United States." But the Supreme Court has ruled at least twice that the Constitution alone sets the conditions for holding certain offices, and that additional conditions or qualifications cannot be added.

If Congress tried to create a federal statute establishing new conditions - e.g., that conviction of one or more federal criminal statutes barred anyone from running for president - it would obviously upset the carefully tuned set of checks and balances written into the Constitution, suggests the law professor.

The problem is that any such statute would add a qualification or condition that is not stated in the Constitution, and possible prevent a party in power to bar a potential presidential challenger.

Powell v. McCormack

In Powell v. McCormack, 395 U.S. 486, the U.S. House of Representatives tried to prevent Adam Clayton Powell, who was duly elected by the voters of his district, from taking his seat in Congress. Because he met the constitutional requirements - age, citizenship, and residence - set forth in Art. I, § 2, of the Constitution, the High Court ruled that he was unlawfully excluded from the 90th Congress. This is despite the fact that the House does have the power under Article I, Section 5 to expel members.

Similarly, and much more recently, in U.S. Term Limits, Inc. v. Thornton, the Supreme Court ruled that states cannot impose qualifications for prospective members of Congress stricter than those specified in the Constitution; in this case, by imposing term limits which had been adopted by more than 20 states.

Banzhaf's colleague at the George Washington University Law School, Professor Jonathan Turley, had reached the same conclusion. He wrote: "The problem is that the law would add a qualification or condition that is not stated in the Constitution. There are constitutional ways to impeach a president or to bar a former president from future office. The mishandling of official records is not one of them." Citing the Powell and McCormack decisions as limiting any basis for adding additional qualifications, Turley concluded that "the same is presumably true under Article II when it comes to the chief executive."

Similarly, law professor Josh Blackman of the South Texas College of Law Houston just explained why "No, 18 U.S.C. § 2071 Cannot Disqualify Trump From The Presidency," citing additional authorities.

So even if the high hurtles of indicting and then convicting Trump of violating 18 U.S. Code § 2071 could be met, it would not disqualify him for running for president again, concluded Banzhaf.