https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/26/no-hillary-clinton-wouldnt-be-legally-ineligible-for-the-presidency-even-if-she-had-violated-government-records-laws/
A Response to Michael B. Mukasey and Cause of Action
Seth Barrett Tillman**
Michael B. Mukasey, a former Attorney General of the United States (and former Chief Judge of the United States District Court for the Southern District of New York), has stated that if former Secretary of State (and former Senator) Hillary Clinton is convicted under 18 U.S.C. § 2071,[1] then she is disqualified from holding the presidency.[2] Likewise, a Washington, DC think tank has just published a white paper taking the same position.[3] Mukasey’s and Cause of Action’s position is fundamentally misconceived; indeed, neither puts forward any authority for the position that Section 2071 or any other federal statute creates or could create a disqualification in regard to any elected federal position, including the presidency.
It is widely accepted that the Supreme Court’s decisions in Powell v. McCormack[4] and U.S. Term Limits, Inc. v. Thornton[5] have come to stand for the proposition that neither Congress nor the States can add to the express textual qualifications for House and Senate seats in Article I. Importantly, the rationale of Powell and U.S. Term Limits — i.e., the primacy of the written Constitution’s express provisions setting fixed textual qualifications — equally applies to the qualifications for the presidency (and vice presidency) in Article II.[6] Indeed, this extension of Powell and U.S. Term Limits appears uncontroversial. For example, Chief Judge Posner opined:
The democratic presumption is that any adult member of the polity … is eligible to run for office… . The requirement in the U.S. Constitution that the President be at least 35 years old and Senators at least 30 is unusual and reflects the felt importance of mature judgment to the effective discharge of the duties of these important offices; nor, as the cases we have just cited hold, may Congress or the states supplement these requirements.[7]
Federal district courts, including those outside of Chief Judge Posner’s Seventh Circuit, have taken a similar stance.[8] So has persuasive scholarly authority.[9]
As a matter of constitutional structure, the case for exclusivity in regard to the Constitution’s express textual qualifications for the presidency is stronger than the coordinate case for exclusivity in regard to qualifications for House and Senate seats. The power to judge members’ qualifications is expressly and unambiguously committed to each house of Congress, but no such express power is unambiguously committed to Congress in regard to adjudicating a president’s (or presidential candidate’s or president-elect’s) qualifications. It would seem to follow that if Congress has no power to add to the standing qualifications of its own members, it cannot add to the standing qualifications for the other elected constitutional positions,[10] i.e., the President and Vice President. Any other result risks congressional aggrandizement at the expense of the presidency; any other result risks Congress’s manipulating qualifications for the presidency so that Congress chooses the President, rather than the People of the United States.
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