Tell me where (or if) I'm going wrong with 18 US Code 2071

Factual Questions
1

The subject code addresses the removal of classified material, penalties, etc. Here are the relevant sections (emphasized and relevant text in italics):

"(a)

Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b)

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. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States."

This morning, in our weekly current events session, a retired lawyer was talking about how Trump can run and serve no matter what. When I brought up the above statute, he first told me that I was incorrect. When I pointed out that it wasn’t opinion, but rather US Code, he reiterated that it was incorrect. He then left and returned with a bunch of clips from internet sources (such as Time, Newsweek, etc.) that said that Trump could still run and could still serve, even if convicted, because he’s over 35 and a U.S. citizen.

Am I’m incorrect here, and if so, how am I wrong? Thanks.

2

The constitution imposes the requirements to be president, and a law can’t supersede that. It would be an unconstitutional application of the law.

So this law wouldn’t apply to somebody elected President of the United States (provided they were constitutionally qualified).

3

Are you saying it wouldn’t apply to someone who is already elected, or that it wouldn’t apply to someone who is running for the office? Or does it not apply in either case?

4

I think the problem with the cites that your lawyer friend sent you is that both of you are misreading them. The answer is that there is no answer. Since this has never been adjudicated, there is no precedent. Currently people, even lawyers, can and do argue both sides. Arguments don’t count. It would go to court automatically and the court would supply an answer.

PolitiFact lays it all out.

5

Correct. The laws says they cant hold office. But the Constitution lays out the qualifications.

Mind you a State can rule they cant be on the ballot… of course lawsuits would fly.

6

The closest case decided by the Supreme Court is U.S. Term Limits, Inc. v. Thornton - Wikipedia.

That was the case that held that the requirements to be elected to the House of Representatives are set out in Article I. The states cannot add any additional requirements, such as term limits.

By that reasoning, Congress or the states cannot add a restriction on an individual’s ability to run for President or serve in the office. If a person meets the requirements set out in Article II, they are eligible to run for President.

7

The law though is about whether they can hold the office, not whether they can be elected to it. There are arguments that you can elect even people who wouldn’t quality for the office to president, like someone younger than 35 or not a natural born citizen.

8

Except for Ad 14-Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

9

Which does not mention the President. Plus, none of the charges he is currently facing relate to shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

10

No, but there is the catch-all- or hold any office, civil or military, under the United States. Any office.

11

Sure, but then why the reference to senator or representative in Congress? Why specifically include Art I positions? Why wouldn’t they be included in “any office”? As soon as you use specific language to include Art I positions, it suggests you also need specific wording to include Art II positions.

There’s a general presumption against duplicative language in legislative interpretation. If it just said “any office”, that would be very inclusive language that possibly include Art. I and Art. II positions. By using “any office” and Art I positions, that suggests that “any office” at least does not include Art. I positions, and certainly opens the door to say that “any office” does not include Art II positions.

12

I think he’s covered. I don’t know what it would take for a court to rule that he engaged in insurrection or rebellion. Probably not these classified document charges. A conviction related to Jan. 6th may do it. If he’s implicated in Jan. 6 but not charged or convicted it will make for a very interesting news cycle.

13

The Constitution lays out the criteria for an individual to be “eligible to the Office of President.” Congress cannot add to them through statute. If they did want to add to those criteria, they can do so through a Constitutional amendment.

I tend to agree with @Northern_Piper that the President is not included in Section 3. Firstly because of his conspicuous absence from the list of offices included in the language. But also, the phrase “hold any office, civil or military, under the United States” is not a catch all. Elsewhere in the Constitution, the term “officer of the United States” is used exclusively to refer to appointed positions such as judges, cabinet secretaries, ambassadors, etc. The Supreme Court found in Free Enterprise Fund v. Public Company Accounting Oversight Board that the President is not an “officer of the United States.”

14

The Constitution says this:

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.

I don’t think it’s clear cut at all that these are intended as sufficient conditions for eligibility - that the intent here is that everyone who is not excluded by citizenship or age or residency is automatically eligible.

To me, the more natural reading of this is to set out three necessary conditions for eligibility. Clearly you could not pass a law that would reduce the minimum age to 30, that would contradict the Constitution. But don’t think it’s at all obvious that a law that added more conditions for eligibility would contradict the Constitution.

15

Makes me think of the national building codes, which are the minimum standards for construction. Cities and states can, and usually do, tack on additional requirements.

16

All these theoretical cases have been argued many times here and elsewhere. Arguments are fun, but nothing means anything until there is an actual case.

17

True enough. I just couldn’t figure out where the hole in my argument was, and this guy was adamant that not only can Trump run if convicted, he could serve from prison. Of course, he would probably just pardon himself the day after inauguration, unless it’s an incarceration from a state conviction, of course.

18

Sure, but that’s the point - I was responding to people who claimed certainty that the statute cannot apply to the presidency.

19

There’s an even closer parallel, Powell v. McCormack.

Controversial Congressman Adam Clayton Powell had been held in criminal contempt for refusing to pay fines imposed in a civil case. Following his reelection in 1966, the House refused to seat him. Powell sued, and the Supreme Court held that since he had been duly elected and met the Constitutional requirements for election, the House could not exclude him.

True, both these cases involve Congress, not the President, but the cases were more than 25 years apart, and the Court’s langjuage in both was pretty clear.

20

So if New York state passed a law that only a citizen of New York state could be on the New York ballot for president, that would be okay?

Or, perhaps more to the point, De Santis’s tame Florida legislature passes a law that no-one over 70 could be on the Florida ballot for President?