Seth Barrett Tillman (National University of Ireland, Maynooth – Faculty of Law) has posted A Response to Michael B. Mukasey and Cause of Action: With a Reply from Attorney General Mukasey on SSRN. Here is the abstract:
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, then she is disqualified from holding the presidency. See Transcript, MSNBC MORNING JOE (Aug. 24, 2015, 06:45:25 AM), Online. Likewise, a Washington, DC think tank has just published a white paper taking the same position. See Legal Analysis of Former Secretary of State Hillary Clinton’s Use of a Private Server to Store Email Records, CAUSE OF ACTION: ADVOCATES FOR GOVERNMENT ACCOUNTABILITY (Aug. 24, 2015), available online. 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.
And Mukasey concedes!
[O]n reflection . . . Professor Tillman’s [analysis] is spot on, and mine was mistaken. . . . The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.
A classy move by General Mukasey.
Posted at 6:58 AM