Former US President Could Face Criminal Charges

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Donald Trump

Legal commentators in the United States suggest that former President Donald Trump could face criminal charges for anything from failing to send classified documents to the National Archive to the offence of tax fraud, and potentially be disqualified from running for the next election, after the Federal Bureau of Intelligence raided his Mar-a-Lago resort yesterday.

The raid

Over a dozen agents conducted a daytime search and seizure of the resort, which the former President considers to be his primary residence, pursuant to a search warrant which US Attorney-General Merrick Garland asserts was in the ‘public interest’.

The purpose

The primary purpose of the raid is to investigate allegations that Mr Trump took 15 boxes of materials, including classified documents, to his home instead of filing them in the National Archive, as required by law,

But commentators suggest that the operation could leave to further investigation of claims the former President engaged in tax fraud relating to his businesses, and may also seek to identify other offences he may have committing before, during and after his tenure. 

Under Federal US Law, it is a crime to wilfully and intentionally remove official records or fail to store them in the National Archive. 

The Justice Department will need to prove a case under the law, which will require proving that the “defendant acted intentionally and with knowledge of violating the law as well as that the defendant knew that the documents are public records.”

Social media ferver

The FBI raid sparked political unrest from some of Trump’s most fervent supporters, with many taking to social media encouraging “civil war”, urging people to “lock and load” and asking “when does the shooting start?”

One post called for the assassination of Merrick Garland, another suggested to “kill all feds” while others encouraged users to post the address of the judge who signed off on the warrant, with one declaring: “I see a rope around his neck.”

There are a number of conspiracy theories floating around, including one that Trump himself has been perpetuating — that the FBI raid is an attempt by the “radical Left” to stop him from announcing another run for presidency in 2024. 

There are also suggestions that the FBI could have “planted” material at Trump’s home during the search.

Authorities are highly concerned about public safety in the wake of the raids and the heated conversation that’s already begun via social media. We’ve seen before how these conversations can create social unrest. 

Potential effect on future candidacy

Some legal experts argue that being found guilty of a serious crime would disqualify Mr Trump from becoming President, even if re-elected, citing Federal statute 18 U.S. Code 2071 which bans the removal, concealment or destruction of presidential records. 

Under the law, “willfully and unlawfully” removing such records can result in a penalty of up to three years in prison and stipulate that the offender “shall forfeit his office and be disqualified from holding any office under the United States.”

However, others say a criminal conviction would not necessarily disqualify Mr Trump from running, as while the US Constitution lists age, citizenship and residency as relevant criteria, it says nothing about having a criminal record. 

Quite simply, the US Constitution upholds the principle that voters decide who shall represent them. Experts say that previous Supreme Court rulings hold that a state cannot prohibit indicted or convicted felons from running for federal office, and Congress cannot add qualifications to the office of president either. 

Donald Trump is currently the subject of multiple investigations in the US. He is defending 29 civil lawsuits, and he’s also the subject of multiple criminal investigations, including one into whether he personally, along with the Trump Organisation, committed various offences of fraud – including bank, tax and insurance fraud. 

He is also still under investigation over riots at Capitol Hill on January 6 2021. 

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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