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Seth Barrett Tillman on Trump Disqualification and Plea Bargains
Michael Ramsey

At Lawfare, Seth Barrett Tillman: Not a Panacea: Trump Disqualification and Plea Bargains.  From the introduction: 

The Justice Department’s ongoing investigation into whether former President Trump unlawfully retained classified documents and other presidential records at his Mar-a-Lago estate is centered on potential violations of three provisions of criminal law, each of which was listed in the search warrant. One of those provisions, 18 U.S.C. § 2071(b), one of the statutes the Justice Department cited in its affidavit to obtain a search warrant for Trump’s Mar-a-Lago residence, states in relevant part:

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. (Emphasis added.)

Several observers have posited that, if Trump were successfully convicted of violating this provision, it might disqualify him from holding the presidency in the future. But the issue is more complicated than the statute’s language suggests. 

This same question of disqualification arose in advance of the 2016 presidential election in relation to Hillary Clinton’s alleged mishandling of official emails and classified information while she was secretary of state. 

However, the majority view, then and now, is that Section 2071 can bar a convicted defendant from holding appointed federal office, but it cannot bar a convicted defendant from running for or holding any elected federal positions. This interpretation follows from the Supreme Court’s decision in Powell v. McCormack (1969), which held that the Constitution’s express textual qualifications (for instance, age, residence, and citizenship) for elected federal positions (that is, members of Congress) are exclusive, and those qualifications cannot be expanded by Congress. In U.S. Term Limits, Inc. v. Thornton (1995), the Supreme Court extended the scope of the Powell principle: States are also precluded from expanding the Constitution’s express textual qualifications for elected federal positions.

Lower federal courts have held that the reasoning in Powell and U.S. Term Limits, which, on their facts, applied to congressional positions, also applies to the presidency. Thus, the Constitution’s express textual qualifications for the presidency cannot be expanded by Congress or by the individual states. However, there is no on-point Supreme Court holding that affirms this view in the specific context of a Section 2071 conviction. So, although we can be reasonably confident that a Section 2071 conviction would not bar Trump from running for (even while in jail) and holding the presidency (again, even while in jail) as a legal matter, we cannot be entirely sure. 

That said, where the law or facts or both are uncertain, as it is in regard to Section 2071, there is usually some legitimate scope for the parties to compromise and contract around uncertainty. In the criminal context, this is most often done through a plea bargain. At least two former federal prosecutors have suggested that such a plea bargain could be used to disqualify Trump from the presidency, despite the uncertainty surrounding Section 2071. 

How might such a plea bargain be structured? In exchange for the Justice Department’s choosing not to pursue certain offenses or, perhaps, for its endorsing more lenient sentences, Trump would admit to facts supporting a Section 2071(b) conviction and expressly agree at sentencing—on the record—to embrace a legal interpretation of Section 2071(b) that would result in barring him from running for and holding the presidency. The plea agreement and sentencing colloquy might also include a concomitant waiver of any right to launch a legal challenge to the contrary. (The Justice Department might not want such a waiver, however, because confirmation of the sentence on direct appeal might strengthen the Justice Department’s position in collateral election-related litigation seeking to enforce the plea bargain.) Finally, the plea agreement and sentencing colloquy might also include a separate promise or commitment not to run for or hold any elected federal positions again—that is, a commitment separate and apart from disqualification that might arise under Section 2071(b) or some other federal statute, including the probation statute’s catch-all clause that allows a court to impose “other conditions.” 

In short, the idea is: Trump would agree to not run for and to not hold the presidency as a provision of the plea bargain, whether or not Section 2071’s disqualification provision extends to the presidency. (Obviously, for this structure to work at all, the trial court would have to impose the terms of the plea bargain at sentencing following colloquy, allocution, and conviction.) However, even if the parties agree to this kind of plea bargain, and even if the agreement is imposed by the trial court as a sentence and confirmed on appeal, the validity and enforceability of any such arrangement may be more complicated than it seems. ...

UPDATE:  Also on SSRN here.