The federal government’s potential cases against Trump look legally weak
Former President Donald Trump’s Mar-a-Lago resort, where his permanent residence is. (Joe Raedle/Getty Images)
The FBI’s raid on former President Donald Trump’s home has generated a great deal of political controversy. However, in my opinion, based on the laws involved, there are multiple reasons the government’s case(s) will likely fail.
First of all, The Presidential Records Act, 44 U.S.C. chapter 22, gives every former president the legal right to access all of his presidential records, including classified records. The crimes listed in the search warrant only apply to documents and records that are illegally possessed. Since the former president has a legal right to access the documents, they are not illegally possessed so there is no violation of the crimes listed in the search warrant.
Despite that, a close Clinton associate, Marc Elias, immediately suggested that this could prevent Trump from being elected president again. He quoted 18 U.S. Code, section 2071, which states in part, “Whoever, having custody of any such record… willfully and unlawfully conceals, removes… the same shall forfeit his office and be disqualified from holding any office under the United States.”
In fact, it would be difficult to prove a case under this statute because it requires Trump to have acted “willfully and unlawfully.” In addition to the former president’s right of access under the Presidential Records Act, the fact that 10 to 15 boxes of documents had previously been returned to the government and the fact the Trump lawyers were negotiating with the government over any other documents, negates a willful intent on Trump’s part. Therefore, prosecution, if there is one, will likely fail for that reason as well.
Even if Trump were prosecuted under this statute and convicted, he would not be legally barred from becoming president again.
In the term limits case, U.S. Term Limits, Inc. v. Thornton, in which as Nebraska’s attorney general I wrote a friend of the court brief on behalf of 17 states, the U.S. Supreme Court ruled that a state law, that prohibited a person who had served three terms in the U.S. House of Representatives or two terms in the United States Senate from being on the ballot again, was unconstitutional because it was an attempt to add a qualification to the office not found in the Constitution.
Under U.S. Term Limits and Powell vs. McCormack the statutory disqualification under 18 U.S. Code, section 2071 is unconstitutional as applied to U.S. House, Senate and Presidential elections and service because it is an attempt to add a qualification for office not found in the U.S. Constitution.
But there’s more. It is said that the U.S. Justice Department is also investigating Trump for insurrection related to the January 6 events at the U.S. Capitol because of a speech he gave that day.
In my opinion, the chances that the FBI and U.S. Department of Justice will be successful with that range between slim and none.
The United States Supreme Court, in Brandenburg v. Ohio, unanimously held that speech advocating violence or unlawful conduct is protected speech, except when the speaker intends to incite “imminent lawless action” and the speech is “likely” to have that effect.
In Trump’s case, in the days leading up to January 6, he authorized calling up the National Guard to prevent violence, but the Capitol Police and the District of Columbia mayor and police did not request the assistance. This account is confirmed, as reported by American Military News, by retired U.S. Army Lt. Gen. Keith Kellogg, who said he was present on January 3, 2021, at the time of Trump’s request, and by a Department of Defense Inspector General report.
Trump’s authorization of the National Guard is strong evidence of an intent to prevent violence on January 6, not instigate it.
Also, at the close of Trump’s speech he urged his listeners to go to the Capitol to “peacefully” protest. That is the exact opposite of inciting his listeners to lawless action.
So, it is very likely that Trump will legally prevail. And, according to recent polls, if he runs for president in 2024, he will likely win the Republican nomination. And in the general election it may be that energized Trump voters and people of goodwill who are appalled at the political weaponization of the U.S. justice system, will elect President Trump to a second term as president of the United States.
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