The search warrant that authorized the search of Mar-A-Lago in August 2022 cited three statutes: 18 U.S.C. §§ 793(e), 1519, and 2071. Section 793(e) prohibits "unauthorized possession" of "information relating to national defense." Section 1519 prohibits destruction or falsifications of records in a federal investigation. And Section 2071 likewise prohibits concealment or removal of certain records. Critically, a person convicted of violating Section 2071 "shall forfeit his office and be disqualified from holding any office under the United States." (There's that language again–Groundhog Day!)
If Trump were convicted of violating this statute, would he be disqualified from holding the office of the presidency? Put aside for a moment whether the presidency is an "office under the United States" for purposes of Section 2071. Under U.S. Term Limits v. Thornton, Congress cannot add additional qualifications for an elected federal position. My colleague Seth Barrett Tillman addressed this argument in September. But even if Trump were convicted of this statute, the trial court would have no occasion to decide whether Trump was in fact disqualified from the presidency. That decision could only come in follow-up litigation, should Trump seek to hold some other office. Still, hovering over a Section 2071 prosecution would be the specter that a conviction could lead to Trump's disqualification. And I think that political storm could create a distraction from the underlying merits of the case.
Fast-forward to the present. Special Counsel Smith indicted Trump for violating Section 793(e). This statute does not impose any sort of disqualification. The indictment also references Section 1519, though not under a specific count. However, Smith did not bring a charge under 18 U.S.C. § 2071. Why?
