Bench Memos

No, a Statute Can’t Keep Hillary From Being President

Last night on her Fox News program, Megyn Kelly was discussing the Hillary Clinton e-mail affair with Shannen Coffin (you can watch the relevant segment here on The Corner), and after partially quoting 18 U.S.C. §2071, Kelly remarked that if Clinton was indeed guilty of destruction of documents, she would not only have committed a felony but “she cannot be president.”  Shannen did not demur from this last conclusion, but neither did he explicitly endorse it.  Good thing too, because Kelly was mistaken.  Here is the relevant statutory provision (emphasis added):

(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.

At first blush it appears that Kelly has it right.  The presidency is an “office under the United States,” as are all executive and judicial branch offices.  (Members of either house of Congress are consistently not called “officers” in the Constitution, or, so far as I know, in any federal statutes.)

But a mere statute cannot legally disqualify a person from eligibility to the presidency, if he or she possesses the constitutional qualifications.  Anyone who is a native-born citizen, 35 or older, who has been 14 years a resident of the country, and who receives a majority of the electoral votes cast for president as certified by the joint session of Congress held to count the ballots (or in the event of no such majority, the one who wins a majority of the states in the contingency balloting of the House), shall be sworn in as president.  That is all in the Constitution, and it is not possible for Congress to add the further qualification “and who has not been convicted of felony X.”

A decisive further indication that the Congress that wrote this statute did not have the office of the presidency in mind comes in the language just before the part I emphasized–a part not quoted by Kelly last night–saying that a serving officer convicted of this offense “shall forfeit his office.”  (Kelly understandably didn’t quote it because Clinton holds no current office she can forfeit.)  No one in Congress could have thought that such a provision applied to the president, who can lose his office against his will only by being impeached by the House and convicted, after an impeachment trial, by the Senate.  Even a conviction of a sitting president on a federal felony charge would not accomplish his removal from office.  It follows that a statute that could not result in the removal of a sitting president does not contemplate the disqualification of any person to become president.

The alternative–that Kelly was right about this statute legally disqualifying Hillary Clinton for the presidency if she were to be convicted–leads us into all manner of absurdities, in which the Congress might add further disabilities to the constitutional ones that limit eligibility for the presidency.  What other disqualifications, either for offenses against the law or for other reasons, might be added?  Lack of military service?  Lack of a college degree?  (Scott Walker, call your office.)

A statute such as 18 U.S.C. §2071 can reasonably be read as controlling service in any office Congress has created by statute and whose process of appointment or election is not specified by the Constitution.  It might then not be read as controlling appointment to an Article III judgeship at any level, but it could plausibly control appointment to any executive branch office, even at the Cabinet level.  Those would be interesting interpretive questions.  What is not so interesting, because the answer is so obvious, is whether this statute has any effect whatsoever on eligibility to be president.  It doesn’t, because it can’t.



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