The reason that Donald Trump and his allies have grown increasingly hysterical about the details of the FBI search of the former president’s Mar-a-Lago compound, and the federal investigation into his unauthorized retention and destruction of classified documents, is that they know these are the crimes that will disqualify Trump from ever again seeking the presidency.
Trump’s high crimes and misdemeanors should have disqualified him long ago. Unfortunately, Republicans in the United States Senate chose in 2020, and again in 2021, to abandon their own constitutional commitments and block the conviction of their president for offenses that made him the only president to twice face impeachment. Since the impeachment trial concluded, legal scholars have made a compelling case that Trump’s incitement of the insurrection on January 6, 2021, has disqualified him under the strict language of Section 3 of the 14th Amendment to the Constitution, which bars from high office any former official who “shall have engaged in insurrection or rebellion against (the United States), or given aid or comfort to the enemies thereof.”
But now the avenue by which Trump is most likely to be held to account has opened up.
That’s a serious problem for Trump and his team, at a point when there is widespread speculation about whether he will announce his 2024 presidential bid before or after the 2022 midterm election. Suddenly, the laws of the land are finally catching up with him.
Tuesday night’s extraordinary 36-page Department of Justice court filing—which came in response to a ham-handed attempt by Trump’s legal team to have a third-party “special master” appointed to review documents seized during the FBI search of Mar-a-Lago—outlines “multiple sources of evidence” showing the former president engaged in “obstructive conduct” in order to avert prosecution for multiple crimes involving that misappropriation of classified documents. The government watchdog group Citizens for Ethics and Responsibility in Washington reviewed the evidence contained in the filing and came to a blunt conclusion: “Donald Trump stole top secret documents from the White House, hid them and lied about them.”
Former Department of Justice lawyer Andrew Weissmann pointed out that “you don’t make a filing this strong, bold, and factually accusatory if you don’t have every intention to indict.”
We now know that the decision to search the former president’s compound followed a referral detailing the concerns of the US National Archives and Records Administration, which had reviewed 15 boxes of documents that the former president had removed from the White House. Under pressure from federal officials, Trump’s team finally turned the purloined documents over to NARA in January 2022. Notably, according to the DOJ filing, Trump made no assertion of executive privilege at that time; nor did he claim that documents contained in the boxes had been declassified.
That’s significant, because the boxes contained a trove of classified documents, in many states of disarray and decay.
“In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials,” noted the DOJ filing.
The NARA Referral stated that a preliminary review of the Fifteen Boxes indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and a lot of classified records. Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly identified.” The NARA Referral was made on two bases: evidence that classified records had been stored at the Premises until mid-January 2022, and evidence that certain pages of Presidential records had been torn up.
The DOJ lawyers then added a notation: “Related to the second concern, the NARA Referral included a citation to 18 U.S.C. § 2071″—which reads:
(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.
The code does not suggest that a former officeholder “may” be disqualified.” It states that the wrongdoer “shall…be disqualified from holding any office under the United States.” Those are words that should have consequence in a country where the rule of law is supposed to apply to everyone.
If Trump willfully and unlawfully concealed, removed, mutilated, obliterated, falsified, or destroyed classified documents—and the evidence is that he did—then he can and should be prosecuted for his crimes. And if he is convicted of those crimes, which now seems like a real prospect, then his ability to use positions of public trust to plot coups and to incite insurrections can and should be foreclosed to restore a measure of accountability in American politics.
Of course, the question of disqualification would be litigated. Trump’s team would argue, as have some legal scholars, that the narrow terms of the Constitution outline specific qualifications for a president, and that criminal convictions don’t count. They could well get traction, based on a limited set of legal interpretations and precedents. But the counter to that argument has always been—and should remain—that no one is above the law, not even a former president. Whatever the courts might rule, the voters will get the point.
This is the reality that frightens Trump and his co-conspirators. They are desperate, and their desperation is manifesting in threatening talk from Senator Lindsey Graham (R-S.C.) and others. That’s unsettling. But it is also a measure of the legal mess in which Trump finds himself. He faces the prospect of indictment, prosecution, and a conviction that will take him off the presidential campaign trail. Permanently.
This is a case that the DOJ must make in the courts of law, and that supporters of the rule of law must make in the courts of public opinion. Ultimately, these are the crimes that the great mass of Americans will understand have disqualified Donald Trump from ever again holding the presidency.