Tillman on a Trump Plea Bargain and Disqualification

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Not a Panacea: Trump Disqualification and Plea Bargains (LAWFARE: HARD NATIONAL SECURITY CHOICES (Sept. 20, 2022, 8:31 AM)) on SSRN.  Here is the abstract:

18 U.S.C. Section 2071—which concerns the concealment, removal, or mutilation of certain federal government documents—states that a convicted defendant: “shall be fined . . . or imprisoned … or both; and shall forfeit his office [if in office] and be disqualified from holding any office under the United States.” (emphasis added) Under the assumption that Section 2071 applies to the presidency, and under the assumption that former President Trump were convicted in a federal prosecution under this statute, the question arises as to the effect of a Section 2071 disqualification. This issue arose in 2015 in discussions involving Hillary Clinton and her e-mail server. The majority view then, and now, is that federal statutory disqualification is a bar against holding appointed federal office, and it is not a bar against a convicted defendant’s running for or holding any elected federal positions. Admittedly, there is no on-point United States Supreme Court holding affirming this view in the specific context of a Section 2071 conviction. (Which is hardly surprising, as there are few such convictions, and it is rare for felons to subsequently run for elected federal positions.) So, although we can be reasonably confident that a Section 2071 conviction would not bar Trump from running for (even while in jail!) and holding the presidency (ditto) as a legal matter, we cannot be entirely sure. Usually, where the law or facts or both are uncertain, there is some legitimate some for the parties to compromise or to contract around uncertainty. What would that look like? Here, the trial court would impose the statutory disqualification, and Trump would expressly agree, on the record, that the disqualification would bar him from running for and holding the presidency (and, perhaps, all other elected federal positions). The key word here is “usually.” In this particular situation, I do not think a plea bargain along these lines would be enforceable.