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If Trump illegally removed official records, would he be barred from future office?

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WASHINGTON — The F.B.I. search of former President Donald J. Trump’s residence in Florida has raised the question of whether the criminal investigation could lead to legally blocking him from becoming president again, even if he decides to run in the 2024 election.

Any conviction under a criminal law that appears to relate to the investigation includes an unusual penalty: disqualification from holding any federal office. But there is reason for caution before concluding that if Mr. Trump were to be charged and convicted under that law, he could not legally return to the White House even if voters wanted him to.

Here is a closer look at the case, starting with the basics.

The Justice Department has declined to comment. But by its nature, the warrant means a criminal investigation is underway. Early reports citing sources familiar with the matter have indicated that the criminal investigation behind the search warrant relates to suspicions that Mr. Trump unlawfully took government files with him when he left the White House.

Earlier this year, the National Archives retrieved 15 boxes that Mr. Trump took with him to his Mar-a-Lago home from the White House residence when his term ended, and said some were found to have contained classified information.

But it is not clear whether Mr. Trump handed over everything. In a statement denouncing the F.B.I.’s action on Monday, Mr. Trump said law enforcement officials “even broke into my safe.”

There are several laws that could potentially cover such a situation. For example, the Espionage Act, which criminalizes the unauthorized retention of defense-related information that could be used to harm the United States or aid a foreign adversary, carries a penalty of up to 10 years in prison per offense.

But the law that has attracted particular attention is Section 2071 of Title 18 of the United States Code, which makes it a crime if someone who has custody of government documents or records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” them. Section 2071 is not limited to classified information.

If convicted under that law, defendants can be fined up to $2,000 and sentenced to prison for up to three years. In addition, the statute says, if they are currently in a federal office, they “shall forfeit” that office, and — perhaps most importantly, given widespread expectations that Mr. Trump will seek re-election again — they shall “be disqualified from holding” any federal office.

Were Mr. Trump to be charged and convicted under Section 2071, voters or rival candidates in state primary elections for the 2024 Republican presidential nomination could challenge his eligibility for that office, asking that his name be omitted from primary ballots.

Each state administers its own elections, so the exact process would vary. But in general, such a challenge would first go to a state elections board. The board’s decision could be appealed in the state court system, whose outcome could in turn be appealed to the Supreme Court.

With an argument that the disqualification provision of Section 2071 is unconstitutional as relates to the presidency.

Article II of the United States Constitution establishes three criteria for presidential eligibility: One must be a “natural born citizen,” at least 35 years old and a resident of the United States for at least 14 years.

Since the Constitution prevails when it and a federal statute conflict, the argument would be that Congress lacks the authority to alter that list of criteria — such as by adding a requirement that one has not been convicted of unlawfully taking government documents.

Notably, the Constitution does authorize Congress to render people ineligible to hold federal office as a penalty for convictions in impeachment proceedings. But nothing in the text of the Constitution says lawmakers may use ordinary criminal law to do so.

The Supreme Court has never ruled on a presidential candidate whose eligibility was challenged based on a conviction under a law whose penalties included disqualification from office. But there have been cases involving Congress that raised analogous disputes.

In a 1969 case, the Supreme Court rejected an attempt by the House of Representatives, by majority vote, to block Adam Clayton Powell Jr. from taking his seat; voters in his district had re-elected him despite allegations of misconduct. The court ruled that, because he met the Constitution’s eligibility criteria to be a House member, “the House was without power to exclude him from its membership.”

Citing Alexander Hamilton, Chief Justice Earl Warren wrote in that majority opinion that “a fundamental principle of our representative democracy is that “the people should choose whom they please to govern them.”

And in a 1995 case, the Supreme Court struck down an amendment to the Arkansas constitution that had attempted to impose term limits on federal House members and senators elected from that state. Justice John Paul Stevens wrote that the state had no power to add qualifications to the list of eligibility criteria established by the federal Constitution.

Citing those and other precedents in an aside in a 2000 case before the Court of Appeals for the Seventh Circuit in Chicago, Judge Richard Posner, who has been deemed the most cited American legal scholar of all time, asserted that Congress lacked authority to supplement the eligibility requirements for the presidency listed in the Constitution.

Section 2071 briefly received a close look in 2015, after it came to light that Mrs. Clinton, then widely anticipated to be the 2016 Democratic presidential nominee, had used a private email server to conduct government business while secretary of state.

Mrs. Clinton was never charged with any crime related to her use of the server. But many Republicans embraced Donald J. Trump’s criticism of her over the issue during his 2016 presidential campaign, and some were briefly entranced with the idea that the law might be used to keep Mrs. Clinton out of the White House. Among that number was Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.

Mr. Volokh later reported an update on his blog that Mr. Mukasey — who is also a former federal judge — had written him a gracious email saying that “upon reflection,” Mr. Mukasey had been mistaken and Mr. Tillman’s analysis was “spot on.”

After the Mar-a-Lago search warrant came to light, one of the most prominent voices pointing to Section 2071 was that of Marc Elias, who served as general counsel for Mrs. Clinton’s 2016 campaign. He initially cited the law’s disqualification provision in a Twitter post as “the really, really big reason why the raid today is a potential blockbuster in American politics.”

But he followed up with another Twitter post acknowledging that any conviction under Section 2071 might not ultimately bar Mr. Trump from seeking the presidency again — but arguing that a legal fight over it would nevertheless be important because of the prospect of legal fights over whether his name could be kept off state ballots.

“Yes, I recognize the legal challenge that application of this law to a president would garner (since qualifications are set in Constitution),” Mr. Elias wrote. “But the idea that a candidate would have to litigate this is during a campaign is in my view a ‘blockbuster in American politics.’”



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China’s Xi to Visit Saudi Arabia for Regional Summits

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RIYADH, Saudi Arabia — China’s leader will travel to Saudi Arabia on Wednesday for a flurry of summits bringing together heads of state from across the Middle East, a region where longtime American allies are growing increasingly closer to China.

The Chinese president, Xi Jinping, will visit the kingdom for three days and attend Saudi-China, Gulf-China and Arab-China summits, the Saudi state news agency reported on Tuesday. More than 30 heads of states and leaders of international organizations plan to attend, the report said, adding that Saudi Arabia and China were expected to sign a “strategic partnership.”

Mr. Xi’s visit to Saudi Arabia is aimed at deepening China’s decades-old ties with the Gulf region, which started narrowly as a bid to secure oil, and have since developed into a complex relationship involving arms sales, technology transfers and infrastructure projects.

The Chinese leader is expected to sign a flurry of contracts with the Saudi government and other Gulf States, sending a message that Beijing’s clout in the region is growing at a time when Washington has pulled away from the Middle East to devote more attention to Asia.

The grand state visit will inevitably draw comparisons to Donald J. Trump’s arrival in the Saudi capital, Riyadh, for his first trip abroad as president in 2017. He was greeted by streets decorated with American flags and an enormous image of his face projected on the side of a building.

Saudi Arabia has been a close American ally for more than half a century. But its authoritarian rulers have long sought to deepen other alliances to prepare for an emerging multipolar world.

U.S.-Saudi ties have been especially fractious over the past few years, with the administration of President Biden declaring a “recalibration” of the relationship and pressing the kingdom over human rights violations, including the 2018 murder of the Washington Post columnist Jamal Khashoggi — a Saudi citizen and U.S. resident at the time — by Saudi agents in Istanbul.

“Xi clearly wants to make a statement at a moment at which the relationship between the United States and Saudi Arabia is strained,” said James Dorsey, a senior fellow at the S. Rajaratnam School of International Studies in Singapore.

“It’s a good moment to replant the flag, if you wish. And I think it’s a good moment for the Gulf States to say, ‘Hey, we have other options. Washington, you’re not the only ones out there.’”

This is a developing story. Please check back for updates.

Vivian Nereim reported from Riyadh, Saudi Arabia, and David Pierson from Singapore.

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What to expect in Herschel Walker-Raphael Warnock Georgia Senate runoff

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​The final​ Senate contest of the 2022 midterm elections will finally be decided in Georgia on Tuesday as voters choose between incumbent Sen. Raphael Warnock and Republican challenger Herschel Walker in a ​high-stakes race that will determine whether Democrats can expand their razor-thin majority in the chamber. ​

The candidates were forced into a runoff after neither Warnock, 53, nor Walker, 60, got more than 50% of the vote in the Nov. 8 midterm election.​

Leading up to Election Day on Tuesday, early voting in the Peach State set a number of single-day records and nearly 2 million ballots had already been cast before the period ended on Friday.

Reflecting the critical significance of the race, spending by the candidates and outside groups has neared $400 million, making it the most expensive contest in the 2022 election cycle, according to data compiled by OpenSecrets.org.​

​According to a RealClear Politics’ average of the polls,​ Warnock has as much as a 5 percentage point lead over his political rival Walker, a former star running back at the University of Georgia, in the USFL and in the NFL. 

Herschel Walker campaigns Dec. 4 in the runoff election in Georgia for US Senate.
JIM LO SCALZO/EPA-EFE/Shutterstock
Warnock speaking
Raphael Warnock, D-Ga., speaks during a campaign rally at Georgia Tech on Dec. 5 in Atlanta.
AP

Walker, endorsed by former President Donald Trump, has received strong support from national Republicans with a number of high-profile lawmakers trekking to Georgia to campaign with him – including Sens. Lindsey Graham of South Carolina, Rick Scott of Florida and Tom Cotton of Arkansas. 

Trump was expected to hold a tele-rally for Walker on Monday evening. 

Former President Barack Obama rallied with Warnock last week, but Biden, like Trump, did not travel to Georgia to campaign for the senator. 

Walker speaking at a rally.
Herschel Walker speaks during a campaign stop in Smyrna, Ga., on Nov. 3.
AP
Sen. Raphael Warnock greets voters in Atlanta on Dec. 5.
Sen. Raphael Warnock greets voters in Atlanta on Dec. 5.
REUTERS

Democrats point to the large early vote as an advantage for Warnock but Republicans are hoping a surge of GOP voters on Tuesday can turn the tide for Walker. 

A win by Warnock could give Democrats a 51-49 advantage in the Senate, a margin large enough to provide Senate Majority Leader Chuck Schumer room to maneuver around Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who have used their influence in narrow majority to block some of Biden’s legislative agenda. 

With 51 Democratic senators, Schumer could afford to lose the support of one member of his caucus and still win votes.

If Walker wins, the 50-50 split in the upper chamber would remain as it has over the past two years, with Democrats relying on Vice President Kamala Harris to cast tie-breaking votes. 

Republicans won a small majority in the House in the Nov. 8 midterm elections. 

Trump defeated Democratic nominee Hillary Clinton by about 5 points in Georgia in the 2016 presidential election, but lost to President Biden by about less than one point in 2020. 

Early voting in the runoff election for US Senate in Georgia between Sen. Raphael Warnock and Herschel Walker has shattered records.
Early voting in the runoff election for US Senate in Georgia between Warnock and Walker has shattered records.
REUTERS
Voters line up to cast their ballots on Nov. 29 in the runoff election between Sen. Raphael Warnock and Republican Herschel Walker.
Voters line up to cast their ballots on Nov. 29 in the runoff election between Warnock and Walker.
REUTERS

But the 2020 election in Georgia was pivotal for Democrats as both Warnock and Sen. Jon Ossoff racked up wins to give Democrats the 50-50 majority they have in the Senate. 

Warnock, the pastor of the Ebenezer Baptist Church in Atlanta, defeated incumbent Sen. Kelly Loeffler to become the first African-American elected to the US Senate from Georgia. 

But he had to run for re-election again this year because his win over Loeffler was in a special election to finish the remainder of Sen. Johnny Isakson’s six-year term after he stepped down in 2019 because of health concerns. 

With Post wires

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Ukrainian long-range drone attacks expose Russian air defenses

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A third Russian airfield was ablaze on Tuesday from a drone strike, a day after Ukraine demonstrated an apparent new ability to penetrate hundreds of kilometers deep into Russian air space with attacks on two Russian air bases.

Officials in the Russian city of Kursk, located closer to Ukraine, released pictures of black smoke above an airfield in the early morning hours of Tuesday after the latest strike. The governor said an oil storage tank there had been set ablaze but there were no casualties.

It came a day after Russia confirmed it had been hit by what it said were Soviet-era drones – at Engels air base, home to Russia’s fleet of giant strategic bombers, and in Ryazan, just a few hours drive from Moscow. Kyiv did not directly claim responsibility for the strikes but celebrated them.

Ukraine never acknowledges responsibility for attacks inside Russia.
AFP via Getty Images

“If Russia assesses the incidents were deliberate attacks, it will probably consider them as some of the most strategically significant failures of force protection since its invasion of Ukraine,” Britain’s ministry of defense said on Tuesday.

“The Russian chain of command will probably seek to identify and impose severe sanctions on Russian officers deemed responsible for allowing the incident.”

Russia’s defense ministry said three service members were killed in the attack at Ryazan. Although the attacks struck military targets it characterized them as terrorism and said the aim was to disable its long-range aircraft.

The New York Times, citing a senior Ukrainian official, said the drones involved in Monday’s attacks were launched from Ukrainian territory, and at least one of the strikes was made with the help of special forces close to the base.

Ukraine never acknowledges responsibility for attacks inside Russia. Asked about the strikes, Ukrainian Defence Minister Oleskiy Reznikov repeated a longstanding joke that explosions at Russian bases were caused by careless cigarette smokers.

“Very often Russians smoke in places where it’s forbidden to smoke,” he said.

Ukrainian presidential adviser Oleksiy Arestovych went further, noting that Engels was the only base Russia has that is fully equipped for the giant bombers which Russia has used in attacks on Ukraine.

Blown out building in Ukraine.
Russian commentators fear that Ukraine may have the capability to hit Moscow.
AFP via Getty Images

“They will try to disperse (strategic aircraft) to airfields, but all this complicates the operation against Ukraine. Yesterday, thanks to their unsuccessful smoking, we achieved a very big result,” he said.

Russian commentators said on social media that if Ukraine could strike that far inside Russia, it might also be able to hit Moscow.

“The ability of the armed forces of Ukraine to reach military targets deep in the territory of the Russian Federation has a very symbolic and important meaning,” Ukrainian military analyst Serhiy Zgurets wrote on the Espreso TV website.

NEW BARRAGE

The huge Tupolev long-range bombers that Russia stations at Engels air base are a major part of its strategic nuclear arsenal, similar to the B-52s deployed by the United States during the Cold War. Russia has used them in its campaign since October to destroy Ukraine’s energy grid with near weekly waves of missile strikes.

The Engels base, near the city of Saratov, is at least 600 km (372 miles) from the nearest Ukrainian territory.

Building on fire.
Ukraine hopes that Russian attacks will calm after last month left Ukrainians in darkness and cold.
AFP via Getty Images

Russia responded to Monday’s attacks with what it called a “massive strike on Ukraine’s military control system.” Missile strikes across Ukraine destroyed homes and knocked out power, but the impact seemed to be less severe than barrages last month that plunged millions of Ukrainians into darkness and cold.

Ukraine’s air force said it had shot down more than 60 of around 70 missiles.

A missile had torn a huge crater out of the earth in the village of Novosofiivka, about 25 km (16 miles) east of Zaporizhzhia city in southern Ukraine and completely shredded a nearby house. Ambulance workers collected two bodies lying by a destroyed car.

Olha Troshyna, 62, said the dead were her neighbors who were standing by the car seeing off their son and daughter-in-law when the missile struck. With houses now destroyed and winter setting in, she had no idea where she would go.

“We have no place to go back to,” she said. “It would be fine if it were spring or summer. We could have done something if it were a warm season. But what am I going to do now?”

Bombed out street.
Ukrainian President Volodymyr Zelensky said that at least four people were killed in Russia’s latest strikes.
AFP via Getty Images

Ukraine warned there would be emergency blackouts once again in several regions as it repaired damage.

At least four people were killed in Russia’s latest strikes, Ukrainian President Volodymyr Zelensky said.

“In many regions, there will have to be emergency blackouts,” he said in a late Monday video address. “We will be doing everything to restore stability.”

Russia, which calls the invasion a “special military operation” to root out nationalists, claims a military justification for its attacks on Ukraine’s civilian infrastructure. Kyiv says the attacks have no military purpose and are intended to hurt civilians, a war crime.

“They do not understand one thing – such missile strikes only increase our resistance,” Ukraine’s defense minister Reznikov said. “Moreover, they increase the desire of our partners to support us.”

The United States said it would convene a virtual meeting on Thursday with oil and gas executives to discuss how it can support Ukrainian energy infrastructure, according to a letter seen by Reuters.

U.S. Secretary of State Antony Blinken said Russia would fail in its “current gambit of trying to, in effect, get the Ukrainian people to throw up their hands”.

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