In another thread I proposed that it remains to be established whether Trump broke the law by having his presidential papers at Mar-a-Lago. Here’s some commentary outlining the legal issues as defined in the search warrant:
The search warrant asserts it is in pursuit of evidence that Trump violated Title 18 U.S. Code Sections 793, 1519, and 2071.
Section 793 is a general law prohibiting the misuse of classified information. It specifically prohibits a person who, through gross negligence, removes such information from its proper place or delivers it to anyone not having proper access to it.
Section 1519 is a statute prohibiting obstruction of justice by altering, destroying, covering up, or concealing any public record.
But the nub of the issue is Title 18 U.S. Code Section 2071. Under it, anyone who “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 and … 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.” (Emphasis added.)
There is a huge problem with Section 2071. It’s clearly unconstitutional.
The Constitution sets out the only criteria for holding the presidential office. Under Article 2, Section 2, any natural-born U.S. citizen over the age of 35 is eligible to run for the presidency. The only limitation is the one contained in the 14th Amendment mentioned above that covers previous office-holders who have engaged in insurrection or rebellion against the United States.
Section 2071 is unconstitutional because Congress cannot, by enacting any law, change the Constitution. That won’t prevent Trump from being indicted under it.
The way I see it, it should be fairly easy for Trump to have complied with Sections 793, 1519, and 2071:
- Section 793. Mar-a-Lago must have been approved as a location for storage of classified materials, since the president occasionally worked there while in office. Also, it must have been approved as a storage location for presidential papers, or else the National Archives would have objected.
- Section 1519. Obstruction is unlikely, since the location of the documents was well-known, Trump’s attorneys were communicative, and no one is talking about any alterations or destruction of documents.
- Section 2071. As stated, unconstitutional.
All in all, the Mar-a-Lago raid may turn out to have been both low-key and half-baked.