Josh Blackman has some very interesting analysis at the Volokh Conspiracy. He argues that because Smith did not indict Trump under 18 U.S. Code § 2071, it signals that he likely won’t indict Trump under 18 U.S. Code § 2383.

Both statutes prohibit an individual convicted under them from holding federal office. Blackman argues that the disqualification issue is a distraction that Smith would prefer to avoid, citing a N.Y. Times article on the point. Because Smith avoided this distraction in the Mar-a-Lago documents case, Blackman reasons, Smith will also want to avoid the same distraction in any prosecution of Trump for his conduct attempting to subvert the result of the 2020 election, including the attack on the Capitol on January 6, 2021.

Maybe. It is certainly worth pondering. But I don’t necessarily see the two disqualification provisions as equivalent. The reason is one that Blackman himself acknowledges. Attempting to disqualify Trump from a return to the presidency under section 2071, which concerns the mishandling of records, clearly would be unconstitutional because there is no constitutional provision that requires a president to be innocent of this offense. On the other hand, seeking to disqualify Trump from a return to the presidency under section 2383, which prohibits participation in an insurrection, tracks the constitutional prohibition against participating in an insurrection that is contained within section 3 of the Fourteenth Amendment. While there are potentially debatable issues whether this section 3 disqualification applies to the presidency, on the assumption that it does the constitutional obstacle to disqualify Trump’s reelection bid on a documents-related charge would not apply to an insurrection-related indictment.

Moreover, while I can’t claim expertise on prosecutorial decisions, from an election law perspective I can argue that the disqualification issue is central to Trump’s misconduct in connection with the 2020 election, including his support for the insurrection at the Capitol on January 6, 2021–whereas the disqualification issue is indeed an ancillary distraction with respect to the Mar-a-Lago documents charges. Normally, a one-term president is entitled to seek a second term, although no more than that given the Twenty-Second Amendment. But Trump’s attempt to subvert the outcome of the 2020 election and retain office even after he lost, and especially after he was impeached for attempting to misuse the office of the presidency to influence the 2020 (in his first Ukraine-related impeachment), demonstrates that contrary to any normal one-term president he cannot be trusted to seek the office a second time. He has proven himself too far too dangerous to the Republic for that. (See all of Liz Cheney’s comments on this point, among others.) While one can argue that the second impeachment would have been the simplest constitutional mechanism to disqualify him from seeking a second term because of his misconduct relating to the 2020 election, the judgment of the Senate (right or wrong) was that conviction upon impeachment was not an available option because at the time of the trial he no longer was in office. As Senator McConnell famously said at the time, although conviction at the impeachment trial was not an available remedy, prosecution in a criminal case–with full accountability therein–remains constitutionally available.

McConnell’s analysis appropriately can factor into Smith’s decision on what charges to pursue with respect to Trump’s misconduct concerning the 2020 election. From an election law perspective, the goal is not to put Trump in prison because of what he did. The goal is to prevent him from abusing the electoral process, to the great danger of the Republic, in the way that he has done in the past. From this perspective, disqualification should be the central focus of any charges against Trump concerning the 2020 election and specifically January 6, 2021–and is far from being an ancillary matter to those charges, in sharp contrast to the charges relating the Mar-a-Lago documents.

This election law perspective would be irrelevant of course if it did not correspond to constitutional provisions. But section 3 of the Fourteenth Amendment, at least on a plausible interpretation of it, does permit disqualifying a one-term president from seeking a second term if that one-term president, in a previous attempt at a second term, incited or participated in an insurrection in an effort to subvert the Constitution’s procedures for presidential elections. When coupled with McConnell’s (and the Senate’s) conclusion that the impeachment process is not available to effectuate a remedy for this grave constitutional offense once the insurrectionary one-term president has left office, it is entirely appropriate for the prosecutorial decision to utilize the disqualification provision of 2383 specifically for the overriding imperative to protect the Constitution from the same attack upon it previously perpetrated by the insurrectionary one-term president.