Can Trump be disqualified from running for president?

When a squadron of FBI agents, armed with a search warrant, invaded former President Trump’s Mar-a-Lago home Monday, many wondered whether this wasn’t handwriting on the wall for an eventual indictment. Republicans in virtually lock-step formation called the search and seizure federal government overreach — and denounced the action as the politicization of the Justice Department.

At this time there is no official record of what motivated the search, what laws were apparently violated or precisely what the agents found as they rummaged through Trump’s safe or his personal papers. One of Trump’s lawyers said that the agents removed 12 boxes of papers that they said Trump had previously withheld. Trump’s son Eric claimed the safe was empty.

Most certainly, such a search of a former president’s home would have required the approval of top officials in the Justice Department and the FBI, such as Attorney General Merrick Garland and FBI Director Christopher Wray, a Trump appointee.

What we do know is that the FBI, in order to secure the warrant, had to present sworn affidavits to a federal judge setting forth what crime or crimes they thought had occurred, and specifically what evidence they thought was located in the mansion. They also had to make a showing of “probable cause” that a crime had been committed, and to search for and seize property. Probable cause is a lower standard of proof than “reasonable doubt,” but it is smoke that may indicate the existence of fire.

The agents apparently carried out the procedure for several hours. Under the law, they were required to prepare an inventory of what they seized, and serve a copy of the warrant, and receipt for the property taken on the person whose property was searched. They are required to return a copy of the warrant and the inventory to the judge designated in the warrant.

So, Trump knows exactly what was taken, and why it was taken. That’s the way we do it under the law-for everyone, for you and me and ex-presidents, whether in favor or out of favor. As the Supreme Court has said, time and again, no one, even a president in office, is above the law.

The search, according to knowledgeable people, primarily focused on documents, some of them possibly classified, that Trump illegally removed from the White House and transported to his Florida estate. But the agents were not bound by this. It has been long settled that in searching for evidence of “Crime A,” if they come across evidence of “Crime B,” they may seize that too.

Trump wasn’t at the mansion at the time of the search. He was in New York, reportedly preparing for his 2024 campaign. But he was quick to issue a statement savaging the search and seizure. “Such an assault could only take place in broken, Third-World countries,” he said. “Sadly, America has now become one of those countries, corrupt at a level not seen before.” He is using the raid to raise more money for his cash-bloated PAC.

Trump is under investigation, among other things, for criminal incitement to insurrection. Jeh Johnson, Homeland Security secretary under President Obama and a former federal prosecutor, said that, “given all the evidence we all know about,” an “aggressive prosecutor” could find “this as a prosecutable indictable case.” The penalty for inciting insurrection is 10 years in prison and disqualification from holding office.

Another possibility is a criminal case under 18 U.S.C § 2071 based on the removal, concealment or destruction of documents. A criminal statute outlaws the removal or destruction of documents from any public office. The penalty is up to three years in prison and disqualification from holding office.

Harvard Law Professor Laurence Tribe has written that “holding Trump accountable – and disqualifying him from future office – would not be a partisan act, but one needed to preserve the republic.” He was perhaps too quick in crowing that “conviction of this crime disqualifies the defendant from holding any future federal office. That’s no small matter.”

But can Trump really be disqualified if convicted? Only in the court of public opinion. Indictment and even conviction of a felony is no ground for disqualification of someone from running for president. Eugene V. Debs ran for president four times in the early 1900s and was a candidate while in jail. So did John Gordon, and a federal court approved his eligibility.

The Constitution in Article II, Section 1, Clause 5 provides the qualifications for president, and that clause does not preclude felons, insurrectionists or document removers.

In 2015, Republicans questioned whether Hillary Clinton would be disqualified if convicted under §2071 for violating document removal, concealment or destruction laws. She allegedly transferred government documents to her personal server. While he held a preliminary Republican view that she could be disqualified, former Attorney General and federal judge Michael Mukasey eventually walked it back, conceding that Article II of the Constitution trumped the criminal statute. So, sauce for the goose is sauce for the gander.

Some Republicans denounced the investigation and the search. House Minority Leader Kevin McCarthy (R-Calif.) stated that the Justice Department had reached “an intolerable state of weaponized politicization.” Magazine editor and presidential candidate Steve Forbes had this to say: “The shocking raid by the FBI on the home of a former president purportedly over possession of some classified documents is purely political, a gross and frightening abuse of power. It poisons our politics.” Sen. Lindsey Graham (R-S.C.) said the raid only increases the likelihood that Trump will run again. Gov. Ron DeSantis (R-Fla.) was a hair more cautious, seeing  the search as an “escalation in the weaponization of federal agencies.”

Other Republicans such as Sen. Tim Scott (R-S.C.) said that “the most important thing we can do is let it play out,” as others like Senate Minority Leader Mitch McConnell (R-Ky.) were more restrained or deafeningly silent.

Scott is right. At this point, we do not know the motivation, basis or timing for the search, what evidence was seized and, most importantly, what Attorney General Garland will make of it.

It should be relatively easy to prove the removal of documents case. If the documents are sizzling hot, Trump’s motivation in removing them went far beyond collecting mementos or souvenirs of his halcyon days in office. Does this increase the likelihood that Trump will be indicted? One would think so. Does it increase the likelihood that Trump will be nominated and elected? That’s a tougher one.

Trump is 76 years old. Presumably, he does not want to go to jail. Will he seek a plea bargain where he consents to a decree that he never again hold public office? Idle speculation. Only time will tell.

James D. Zirin is a former federal prosecutor in the Southern District of New York.