I continue to believe that establishment Democrats want former President Donald Trump to be the Republican presidential nominee in 2024. They calculate that a post-Capitol riot Trump, particularly a Trump bruised by the slick made-for-TV drama series known as the House January 6 Committee hearings, is their best shot at electing a Democrat.
The FBI’s search of Trump’s Mar-a-Lago residence is yet another hardball move that Democrats figure will stoke GOP anger – enough to get Trump nominated. From there, Democrats surmise, he cannot win a national election, so they would retain the White House.
But this is not a universal view on the Left.
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Many progressives, to the contrary, not only want Trump indicted, they want him disqualified by law from seeking the presidency. That was part of their goal in proceeding with impeachment in the waning days of the Trump presidency, followed by a Senate impeachment trial when he was already out of office. One of the Constitution’s penalties for impeachment, besides being stripped of power, is disqualification from seeking federal office in the future.
This also explains a clause in the Democrat-controlled House’s impeachment article, which cites Section 3 of the 14th Amendment as part of the "Incitement of Insurrection" allegation.
Misleadingly quoted is the amendment’s provision that one who has "engaged in insurrection or rebellion against" the United States may be disqualified from holding federal office.
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In reality, this provision does not apply to "any person," as the impeachment article asserts, but to a specified list of federal officials. Noticeably absent from that list are the president and vice president.
Quite apart from the fact that Trump has not been formally accused of engaging in an insurrection or rebellion, much less found to have done so, he is not eligible for the Section 3 disqualification. But that did not stop progressives from laying the groundwork in the impeachment article, hoping some activist progressive judge might be persuaded apply the disqualification anyway.
Now comes the latest disqualification gambit. I believe the Justice Department’s real purpose in searching Trump’s Florida estate is to continue trying to build a criminal case based on the Capitol riot. But the ostensible reason for the search – the pretext, if you will – is suspicion that Trump has mishandled classified information. This, progressives will argue, triggers Section 2071(b) of the federal criminal code. It prescribes a classified information offense whose penalty includes being "disqualified from holding any office under the United States."
It won’t work.
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It is a fundamental tenet of our law that a mere statute cannot alter or override the Constitution. That can legitimately be done only by amending the Constitution.
Under the Constitution, the qualifications for the presidency are minimal: one must be at least 35 years of age and a natural born citizen. Significantly, and as noted above, the Constitution also prescribes the conditions for disqualifying a person from the presidency: he or she must be impeached by the House and convicted by the Senate.
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Congress has no authority to change these constitutionally prescribed qualifications and disqualification by statute. The Framers heavily relied on a doctrine of separation-of-powers because they wanted the branches of government to be peers who could check and balance each other. If Congress could set the qualifications for the presidency by enacting a statute, then the chief executive would be beholden to the legislative branch – exactly the subservient relationship the Framers sought to avoid.
There are obviously many criminal offenses that are more serious than the one prescribed by Section 2071(b). Indeed, its maximum three-year imprisonment penalty makes it a comparatively minor crime even among classified information offenses – particularly compared to the Espionage Act (Section 793), which prescribes far more serious incarceration terms but does not contain a disqualification provision.
It would be strange, in any event, to claim that a Section 2071(b) crime disqualified a person from seeking the presidency even though far more egregious offenses – say, seditious conspiracy to use force against the government and the murder of a federal officer – do not.
There is, however, no need to argue that point. Section 2071(b) cannot change the Constitution. To disqualify Donald Trump (or anyone else, for that matter) from the presidency, there must be a House impeachment followed by a Senate conviction and disqualification verdict. End of story.
