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  • 2016-05-27 (xsd:date)
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  • Hillary Clinton Disqualified by U.S. Code Title 18, Section 2071 (en)
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  • On 24 August 2015, former United States Attorney General Michael Mukasey appeared on MSNBC's Morning Joe program and opined that Democratic presidential candidate Hillary Clinton should be disqualified from holding that office due to her use of a private e-mail server for conducting government business while she was serving as secretary of state. Mukasey cited U.S. Code Title 18, Section 2071 as basis of his statement: During that initial appearance, he said that Clinton's wiping of data from her private e-mail server was the offense that violated the cited section of the U.S. Code and disqualified her from office: It is true that U.S. Code Title 18, Section 2071 establishes the concealment or destruction of some government records as a crime, and that public officeholders who violate the code are to be disqualified from holding any office under the United States: However, when legal experts analyzed Mukasey's claim and his application of Title 18 to Hillary Clinton, they concluded it was not legally sound, and within a week even Mukasey agreed that his initial statement was problematic. Eugene Volokh, a professor at the University of California, Los Angeles School of Law (and a legal analyst for the Washington Post) ended an August 2015 column on the controversy by opining that disqualifying a person from holding the office of President over a criminal sentence was possibly unconstitutional, and that the issue was moot in Clinton's case because even if she were found guilty of such an offense, she would be effectively disqualified from office in the court of public opinion rather than in a court of law: Volokh largely deferred to an assessment by former Rutgers Law School Prof. Seth Barrett Tillman, who countered Mukasey's initial statement by expanding on the unconstitutional aspect raised by Volokh: In short, Tillman (and Volokh) held that the qualifications stipulated in the Constitution regarding eligibility for the office of President (i.e., having reached the age of 35 and having lived in the United States for 14 years) cannot be modified by Congress through the passage of laws, only by amending the Constitution itself. Prior to the August 2015 controversy, Prof. Matthew Franck had expressed much the same viewpoint in the National Review's Bench Memos column. Addressing a prior version of the claim made in March 2015 by Fox News anchor Megyn Kelly, Franck maintained that a statute such as Section 2071 did not have the judicial weight to override the Constitution and create additional disqualifying criteria: Mukasey himself eventually concurred with Tillman and others that his original comment regarding Title 18, Section 2071 with respect to Hillary Clinton's eligibility was off the mark. Volokh appended his column with the following excerpt from a e-mail sent to him by Mukasey: (en)
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