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Former AG Michael Mukasey Says he’s Wrong About Clinton Emails

Could Clinton Face Criminal Charges Over Her Email? 2:10

Former U.S. attorney general Michael Mukasey says he was wrong to suggest that if Hillary Clinton was ever convicted of destroying government records by erasing the contents of her email server, she would be legally unqualified for the presidency.

The suggestion came Monday from Mukasey, a former federal judge who served as attorney general during former president George W. Bush's administration. He was also named as an early adviser to the Jeb Bush campaign.

On MSNBC's Morning Joe, Mukasey said "I think the more dangerous part of this, from her standpoint, is not so much the placement of the material here as wiping the server."

"Number one, that’s a felony, but that statute disqualifies you from holding any further office in the United States and she’s running for a further office under the United States."

He was referring to a section of federal law making it a crime to file false crop or weather reports and forbidding federal employees to falsify financial records. A statute in that section, titled "Concealment, removal, and mutilation generally," provides that anyone who has custody of federal records and who "conceals, removes, mutilates, obliterates, falsifies or destroys" them shall be fined or imprisoned or both and "be disqualified from holding any office under the United States."

But now, Mukasey says he was wrong.

Related: What's the Legal Background to the Clinton Email Controversy?

Some legal scholars pushed back against his Monday comment immediately, most notably Seth Barrett Tillman, a former teacher at Rutgers Law School, now at Maynooth University in Ireland.

He wrote that applying the statute to candidates for president would be unconstitutional. The only limits on qualifications to be president are in the Constitution — having US citizenship, being at least 35, and having lived in the US at least 14 years.

Tillman quoted from a recent court opinion that said, "The democratic presumption is that any adult member of the polity ... is eligible to run for office" and Congress cannot "supplement these requirements."

Tillman's objection was picked up by a legal blog maintained by UCLA Law Prof. Eugene Volokh.

On Thursday, Volokh said he received an email from Mukasey that said, "On reflection ... Professor Tillman's (analysis) is spot on, and mine was mistaken."

The disqualification statute, Mukasey said in the e-mail, "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."