Could the FBI Investigation Into Trump Stop Him From Running in 2024?

Donald Trump in front of a US flag

Legal observers have focused on a regulation that could spell trouble for Trump’s potential 2024 campaign.

After the dust settled Monday evening — when news broke that the F.B.I. had searched former President Donald Trump’s Palm Beach home — one question rose to the fore: Could the raid ruin Trump’s chances of running again for office? 

Early reports suggested that the raid could be tied to an investigation into whether Trump had unlawfully taken government documents with him when he left office, which set off a legal debate centered around a somewhat obscure regulation, known as Section 2071 of Title 18 of the United States Code

The law prohibits anyone in custody of official records from hiding, removing, or destroying them — and carries a penalty of a fine or up to three years in prison. Crucially, it also states that violators are also “disqualified from holding any office under the United States.” So, it would seem at least, that if Trump were convicted of illegally taking or destroying government files, he’d be ineligible to run for president in 2024. 

This week, Marc Elias, an influential attorney and former counsel for Hillary Clinton during her 2016 presidential campaign, sparked a discussion of Section 2071 and what it could mean for Trump’s political future on Twitter. 

“The media is missing the really, really big reason why the raid today is a potential blockbuster in American politics,” Elias posted, along with a screenshot of the regulation. 

But many were quick to point out that this might not be the bombshell some Democrats are hoping for. Section 2071 was scrutinized back in 2015, when it was learned that Clinton had used a private email server while working as secretary of state. At the time, some conservatives pounced on the law for its potential to keep Clinton out of office, the New York Times reports.  

But legal scholars have pointed out that the eligibility criteria to run for president is clearly set out in the Constitution, and that the provision in Section 2071 cannot alter that. There are several court rulings which prop up this line of reasoning, the Times reports. In 1969, when considering an attempt by the House of Representatives to block Adam Clayton Powell Jr. from serving because of allegations of misconduct, the Supreme Court ruled that the House couldn’t exclude Powell because he met the standards codified in the Constitution. In 1995, the Supreme Court blocked Arkansas’ attempt to impose term limits on its members of Congress, ruling that the state couldn’t add qualifications for eligibility that’s already been established in the Constitution. 

Seth Barrett Tillman, an associate professor at the South Texas College of Law, tweeted that: “Although the former president may be at legal risk, depending on the facts, a criminal conviction would not bar him from another run.”

Elias, on Twitter, acknowledged this. But he still insists that “the idea that a candidate would have to litigate this during a campaign is in my view a ‘blockbuster in American politics.’”