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Analysis | Why Trump’s Mar-a-Lago Document Dump May Be a Crime

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The FBI’s search of former President Donald Trump’s Florida home as part of an investigation into whether he improperly took documents from the White House was celebrated by some as proof that no one is above the law and denounced by others as a political attack. Little is known about the aims of Department of Justice investigators and what evidence they may have gathered. There are laws governing how presidents are supposed to handle documents that, at least theoretically, can trigger prosecutions for failure to comply, chief among them the Presidential Records Act. But as with so much related to Trump’s time in office, the search appears to have landed investigators in uncharted territory.  

1. What is the Presidential Records Act?

It’s a law enacted by Congress in 1978 as one of several post-Watergate measures aimed at combating potential corruption in the White House. President Richard Nixon had challenged the legality of a predecessor to the PRA, which sought to prevent him from destroying any of 42 million page of documents and 880 tape recordings from his time in office, but the US Supreme Court said Congress had the authority to regulate presidential documents both for posterity and to ensure their availability for criminal prosecutions. 

2. What does the PRA say?

It established that presidential records belong to the US and that the president must transfer control of them to the National Archives and Records Administration after leaving office. Furthermore, while in office, the president may only dispose of records after an archivist determines they “no longer have administrative, historical, informational, or evidentiary value.”

3. What happens if the PRA is violated?

Though the PRA by itself doesn’t specify any penalties, violations could trigger several federal statutes that make it a felony to mishandle government property. These potentially include laws barring injury to US property, improper disposal of records belonging to the US, unauthorized removal or retention of classified materials and removal or destruction of any record deposited with a US office or official. Obstruction of justice statutes could also apply if the documents removed or destroyed were relevant to a criminal, civil or Congressional investigation. Convictions for injuring US property or improperly disposing of records can carry sentences of up to 10 years in prison. 

4. Could a conviction keep Trump from running again?

The statute regarding removal or destruction of deposited records has attracted particular attention because it also says a convicted offender would “be disqualified from holding any office under the United States.” But a number of legal scholars have said they doubt this statute could actually prevent Trump from running in 2024. They point to the provisions of the Constitution that lay out qualifications for the presidency as likely to be seen as the governing law, since Congress can’t overrule the Constitution. 

5. What does the Trump investigation involve?

The search, which Trump said included his safe, was related to a request from the National Archives and Records Administration to the Justice Department to look into the transfer of presidential documents to Mar-a-Lago, including classified materials. The Archives in January retrieved 15 boxes of records from Mar-a-Lago, the former president’s Palm Beach home. Trump turned those documents over only after facing possible legal action over their removal. More broadly, some former aides have said he had a cavalier attitude about handling classified material and preserving documents, saying that he was known to rip them up, pocket them or even flush them down the toilet. On the morning of the FBI search, New York Times reporter Maggie Haberman released photos allegedly showing White House toilets clogged by torn-up presidential records. 

6. Is any of that a basis for prosecution?

Not necessarily. Even if all of those accounts are true, prosecutors would need to show Trump knew he was violating the law. To do so, they could rely on witnesses who served under Trump. The Washington Post reported in February that Trump had been warned about aspects of the PRA by former White House Counsel Don McGahn as well as his first two chiefs of staff, Reince Priebus and John F. Kelly.

7. Have there been cases like that brought before?

Not against a former president, but Sandy Berger, national security adviser under President Bill Clinton, pleaded guilty in 2005 to removing classified records from the National Archives. Berger admitted that in 2003 he concealed and removed five copies of classified documents that he was reviewing in connection with a request for records by the 9/11 Commission. He took the documents to his office and destroyed three of them. The former White House aide was ultimately sentenced to two year’s probation and ordered to pay a $100,000 fine. Berger’s guilty plea was announced by then-Assistant Attorney General Christopher Wray, the current Federal Bureau of Investigation director, who would have played a key role in authorizing the Mar-a-Lago search. There have also been a number of prosecutions of Archives employees who stole documents to sell on eBay.

8. Could Trump have declassified the removed documents?

Presidents do have ultimate decision-making power over the classification of documents, and Trump could theoretically have declassified any records he removed from the White House. Indeed, former Trump National Security Council member Kash Patel has claimed Trump did just that before leaving office. There is no set procedure for presidential declassification, meaning that could be the basis for a defense if a case proceeds against Trump. But even if Trump was found to have declassified documents, he could still potentially be prosecuted for removing or destroying them. And Richard Painter, chief White House ethics lawyer under President George W. Bush, points out that declassification of documents for an improper purpose could be a crime in itself. “If he declassified documents in order to remove them and destroy them, he’s destroying evidence, and that’s obstruction of justice or obstruction of Congress,” Painter said.

More stories like this are available on bloomberg.com



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