Constitutional Law

In 'savvy move,' Trump special counsel avoids charge that bans violators from office

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This image, contained in the indictment against former President Donald Trump, shows boxes of records stored in a bathroom and shower at Trump’s Mar-a-Lago estate in Palm Beach, Florida. A decision by special counsel Jack Smith not to charge Trump under Section 2071 of Title 18 of the U.S. Code was “a very savvy move,” according to John P. Fishwick Jr. Photo by the U.S. Department of Justice via the Associated Press.

Special counsel Jack Smith is taking a “fist-inside-a-kid-glove approach” in the classified documents case against former President Donald Trump, according to an article in the New York Times.

One example of that approach is Smith’s failure to charge Trump under Section 2071 of Title 18 of the U.S. Code, according to the New York Times. That charging decision avoids a showdown over whether the provision can constitutionally bar Trump from office.

Section 2071 says anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” government documents is guilty of a crime carrying a penalty of up to three years in prison.

Anyone who violates the law “shall forfeit his office and be disqualified from holding any office under the United States,” the statute says.

Trump is instead charged with willful retention of national defense information in violation of the Espionage Act, withholding or concealing documents in a federal investigation, false statements and conspiracy to obstruct justice.

The decision not to charge Trump under Section 2071 was “a very savvy move,” according to John P. Fishwick Jr., a former U.S. attorney for the Western District of Virginia who spoke with the New York Times.

“It makes this much less about politics—this is about the evidence, not about blocking him from office,” Fishwick told the New York Times.

According to the New York Times, many legal scholars think that the ban on federal office would be declared unconstitutional if applied to Trump. That’s because the U.S. Constitution provides the qualifications for president.

Writing at the Volokh Conspiracy, Josh Blackman, a professor at the South Texas College of Law in Houston and an ABA Journal contributor, said the failure to charge Trump under Section 2071 may provide a hint about the charges in any forthcoming indictment against Trump in connection with the Jan. 6, 2021, attack on the U.S. Capitol.

If the New York Times is right about Smith’s strategy, it is an indication that any Jan. 6 indictment would not include a charge under the insurrection statute, Blackman said.

That statute—Section 2383 of Title 18 of the U.S. Code—says anyone who incites, assists or engages in any rebellion or insurrection against the authority of the United States “shall be incapable of holding any office under the United States.”

There is more of a split on whether Section 2383 could bar Trump from office because the law invokes Section 3 of the 14th Amendment. The constitutional provision says anyone who has “engaged in insurrection” against the United States after taking an oath to support the Constitution is barred from office.

“If the Times is correct about Smith’s strategy,” Blackman wrote, “then a Section 2383 prosecution would go beyond distracting—it would consume the nation. A single jury in the District of Columbia could make a finding of guilt that could place Trump’s ability to run for reelection in doubt. Smith has very good reasons to avoid these problems. If he pursues an indictment based on Trump’s Jan. 6 conduct, there are many other charges he could bring that would avoid distracting fights.”

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