In the aftermath of the FBI raid on Mar-a-Lago, speculation swirls as to what the FBI and the Department of Justice will do with the information they have obtained. Many suspect the raid is part of a larger Democrat plot to find some basis to indict Donald Trump, convict him of a felony of some sort and prevent him from being elected President. In particular, some Democrat pundits and attorneys speculate that the former President could be indicted and convicted of a violation of 18 U.S.C. § 2071 (concealment, removal, or mutilation of a public document). If indeed the Attorney General goes down that road, which is fraught with legal landmines, a glaring contradiction will immediately arise, one that Americans will remember with disgust. That glaring contradiction arises from none other than the Speaker of the House herself, Nancy Pelosi, and ultimately indicts in the court of public opinion the FBI, the DOJ, the Biden Administration, and the Democrat leadership of the House and Senate. Follow the legal and factual logic.
Section 2071 defines a specific intent crime. In other words, to violate it, a person must act willfully and knowingly. Indeed, all federal criminal statutes that pertain to improper removal, destruction or injury to property of the United States require proof of a specific criminal intent (e.g., 18 U.S.C. § 641 and 18 U.S.C. § 1361). Section 2071 makes it a felony to willfully and unlawfully remove, mutilate, or destroy a document deposited or filed in any public office or with any court. The language that intrigues Democrats and mainstream media is at the end of Section 2071 (b), whereby the person convicted “shall forfeit his office and be disqualified from holding any office under the United States.” The entire statute 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. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
Speculation that this section applies to former President Trump is wide of the mark. In the first instance, there is no reason to believe that the statute was meant to apply to the President of the United States. The President’s own papers are not of a kind “filed or deposited with any clerk or officer of any court, or in any public office, or with any judicial or public officer of the United States.” They were, rather, not filed with the President but used by him in aid of presidential decision-making. But assuming that the statute actually applied to the president, it is nevertheless clear that the government lacks the slightest proof that President Trump acted with the requisite criminal intent.
Rather, there is no evidence at all that President Trump had anything to do with assembling, packing, and shipping the documents in question or was even aware at the time (or even to this day) that any specific documents had been boxed and sent to Mar-a-Lago. Indeed, public statements made by former Trump Administration official Kash Patel and present Trump attorney Christina Bobb strongly suggest that Trump had no involvement in the assembly, packing, and dispatch of the White House documents destined for Mar-a-Lago. Patel even said that any documents he knew to be so transmitted that had been marked classified were ones the staff knew to have been declassified by the President before transmission (albeit the classified markings may not have been removed).
Consequently, the all-important specific intent needed to support a charge of criminality against Donald Trump is absent. But, in recent history, we do have irrefutable proof of a public official who did willfully mutilate a document that had been filed with the Congress of the United States.
That official is Nancy Pelosi. On February 4, 2020, before a live television audience from the well of the United States House of Representatives, Speaker Pelosi ripped apart an official, duly filed copy of President Donald J. Trump’s State of the Union Address—not once, not twice, not three times but four times, and she even tore apart the envelope that contained the speech. She did so in anger, her aides told the press, and she did so, importantly, with full knowledge of the speech. Her mutilation of that publicly filed document directly and plainly violated the very statute Democrats wish to use against Donald Trump, 18 U.S.C. § 2071.
Was Nancy ever charged for the crime? Was Nancy ever indicted? Was Nancy ever prosecuted? Was Nancy ever convicted? Is she serving three years in the federal hoosegow? No. She’s a Democrat. The law apparently does not apply to prominent Democrats (or even spouses or off-spring of prominent Democrats). And while the law on its face is inapplicable to Donald Trump, alas he is the Democrats’ most-detested Republican and, so, Attorney General Merrick Garland may find a way to stretch and manipulate the law until he makes it fit the former president.
But if the Democrats succeed in indicting President Trump or convicting him of some flimsy, improperly brought felony, will that prevent him from running for or serving as President? It will not. The Constitution does not prohibit a person who is indicted, charged or convicted from being elected President of the United States. Article II, Section 1, Clause 6 of the Constitution establishes the qualifications for office. Donald Trump satisfies those qualification requirements. He is a natural born citizen, and he has attained the age of thirty-five. Under Article II, Section 4, the president shall be removed from office only on impeachment by the House and conviction by the Senate of treason, bribery, or other high crimes and misdemeanors.
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