There is a movement afoot to change the terms of the presidential election under the statute of Title 18 of US Code.  I have received an e-mail about this matter.  The text is as follows

Federal Law: Title 18. Section 2071
Former United States Attorney General Michael Mukasey tells MSNBC that not only is Hillary Clinton’s private email server illegal, it “disqualifies” her from holding any federal office.
Such as, say, President of the United States.
“If you do this or that bad thing, you’ve essentially disqualified yourself as being the leader of the free world,” said Mukasey, referring to the illegal server and the illegal handling of classified materials.
Mukasey specifically points to one federal law, Title 18. Section 2071.
For those of us who do not have United States Code committed to memory, here’s what it says:

§2071. Concealment, removal, or mutilation generally

(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.

I am extremely concerned about the presentation of this section as a means to disqualify Presidential candidates. This concern is not from a partisan basis.

The Constitution specifies no final authority over the counting of electoral votes. There is reason to argue a plenary Legislative authority, and a plenary Judicial authority.  Does the House have final say over a controversy, or the Judiciary?

There is no reason to presume that the Congress intended for Title 18 to control the process.  First, in a General election, each state’s legislature has final say over the selecting of electors for the State’s Electoral College.  The States tend to be bound by their own laws to respond in a way to the popular vote within that state.  The States alone determine the selection of electors pledged to any certain candidate, notwithstanding the Federal rule above, which would be properly ignored by the State Legislature as irrelevant to State Law.

The question would come before the House (and Senate) whether to recognize the votes of the Electors from such a state, if USC 18 were pertinent.  Of course, such a person under question would have to have been convicted of the specific section, according to due process.  To ignore the Electors for a particular person is to disenfranchise the electors supporting that candidate.

The question, whether put before the Supreme Court or the House, is a question of first impression, and being potential, runs the risk of raising civil disorder.  It is interesting that people wish to go to that as an alternative.

 

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