Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications

Qualifications for public office restrict democratic choice, but such restrictions have a long pedigree in many jurisdictions. For example, the U.S. Constitution sets out qualifications for elected federal officials: i.e., Representative, Senator, President, and Vice President. Qualifications for those positions include provisions relating to age, citizenship, and residence. It has been long debated whether these textual qualifications are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress or by the States.

Once again, this issue has become topical. Former Secretary of State Hillary Clinton is a prominent candidate in now-ongoing Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the 2016 popular presidential election. It has been alleged that, during her term as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping. 18 U.S.C. § 2071 provides: “Whoever, having the custody of any … record … willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same … shall forfeit his office and be disqualified from holding any office under the United States.”

This Article addresses two interesting interpretive challenges posed by Section 2071. First, does Section 2071’s “office under the United States” language reach the presidency? Second, if Section 2071’s “office under the United States” language encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency?