Former US President Donald Trump is facing a number of active lawsuits, including the case involving missing White House documents. Accused by the National Archives and Records Administration (NARA) of stashing classified material at his Mar-a-Lago estate in Florida, Trump was asked to return what he took. Instead, his team returned only some of the documents, with the rest discovered by the FBI during a search of the property this August. It is unclear whether more documents are still in his possession.
The FBI recovered more than 11,000 government documents and photographs during its search as well as 90 empty folders labelled as “classified,” according to unsealed court records. The agency found that at least 18 documents were labelled top secret, 54 were marked as secret and 21 were deemed confidential.
For both taking the documents and refusing to surrender them, Trump faces multiple investigations.
In May 2021, just four months after leaving office, Trump was notified by the NARA that he had failed to turn over at least two dozen boxes of original records. In December, his team told the Archives that they had located some of the records and proceeded to return them.
In February this year, the US House of Representatives announced that they were launching an investigation into the matter. In April, the Justice Department (DOJ) followed suit and later that month, the White House Counsel’s Office formally requested that the NARA give the FBI access to the documents they recovered in December.
In June, Federal investigators served Trump with a grand jury subpoena, seizing more documents from his private estate. However, even that failed to uncover all that was taken.
On August 8, Federal agents executed a search warrant at Trump’s Florida property after receiving reports that the former president had not been forthcoming with authorities. They found more than twice the amount of documents than Trump voluntarily parted with. Some of the material was so sensitive that the FBI and Justice Department officials conducting the search required special clearances to review it.
Two weeks later, Trump asked the US District Court for the Southern District of Florida for an independent arbiter to review the documents. Earlier this month, the Court ruled on his behalf, blocking government agencies from accessing the material retrieved until an arbiter assessed them. The judge in question was appointed by Trump.
Despite that temporary respite, the judge’s decision is likely to be overturned on appeal and once the investigation resumes, Trump could be criminally charged.
The main charge levied against Trump is violation of the Presidential Records Act (PRA), a piece of legislation passed to prevent former president Richard Nixon from destroying classified information related to the Watergate scandal after he resigned from office. Under the PRA, every presidential document is supposed to go directly to the NARA as the material is considered to be the property of the American people.
Anne Weismann, a lawyer who represented watchdog groups that have sued Trump over violations of the Presidential Records Act, told CBS News that the former president “clearly violated” the Presidential Records Act in “multiple ways,” including by ripping up records.
But “the real problem is there’s absolutely no enforcement mechanism in the Presidential Record Act and there’s no administrative enforcement provision,” she said.
Although the PRA itself doesn’t specify any penalties, violations could trigger two federal statutes that make it a penalty to mishandle government property.
The first law states anyone who “willfully injures or commits any depredation against any property of the United States” faces a fine or up to one year imprisonment if convicted. The second law states anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” is subject to a fine or up to three years in prison if convicted.
Additionally, the Justice Department is investigating if Trump violated the Espionage Act by gathering, transmitting, or losing national defence information.
Trump for his part has argued that he didn’t violate any federal laws because he declassified the documents in question before leaving office. However, even if he did, and there is no evidence of the same, he could still be charged for removing or destroying them.
Richard Painter, chief White House ethics lawyer under George W Bush, argues that the declassification of documents for an improper purpose could be a crime in and of itself.
Beyond criminal prosecution for violating federal law, the Justice Department could pursue civil lawsuits against Trump. They could also drop the charges altogether.
Depending on the severity of the findings, Trump could face a lengthy jail term. He could also potentially be prohibited from running from office again. However, it’s worth noting that although the law pertaining to destroying government documents stipulates that a convicted offender would be disqualified from holding office, many legal scholars point out that the Constitution may supersede legislation. As per Constitutional requirements for presidential candidates, being behind bars does not preclude them from running.
According to veteran journalist Timothy L. O’Brien, there are three potential reasons why Trump would want to keep top secret information to himself.
The first stipulates that Trump took the documents simply because he was careless, indifferent to legal procedures and/or unaware of what he was doing. There is some precedent from his time in office that this may be the case.
During his presidency, Trump was alleged to have blurted out classified information provided by Israel during a meeting with two high level government officials. Two years later, he tweeted a sensitive photo of a failed Iranian rocket launch despite being advised against doing so by his advisors.
Trump also demonstrated a flagrant disregard for record keeping. In 2018, Politico reported that Trump had a habit of tearing up official papers that were handed to him after he was done with them. The problem became so bad that multiple civil servants were reportedly tasked full time with repairing the documents with scotch tape to comply with the PRA.
In February, The Washington Post reported that Trump’s team routinely used burn bags to incinerate a wide range of records based on personal discretion. Additionally, The New York Times wrote that staff periodically found clumps of documents clogging White House toilets. They later released photos of some of the alleged found documents.
According to O’Brien, another reason why Trump could have stolen the documents was to satiate his lifelong “unfettered greed.”
O’Brien writes that Trump’s financial pressures raise alarms “for any rational observer concerned that Trump might have been inspired to use the powers and access to records that his presidency provided to rake in lucre by peddling classified information after he left the White House.”
Lastly, according to O’Brien, Trump could have been motivated by a desire to preserve his own reputation. Amongst the missing documents there is believed to be communications between Trump and a litany of foreign leaders including North Korea’s Kim Jong Un, Russian President Vladimir Putin, and Ukrainian President Volodymyr Zelenskyy. Given that his exchanges with the latter led to the first of his two impeachment proceedings, Trump may have been trying to cover up evidence that would further implicate him.
Trump for his part has denied all the allegations, arguing at different times that he declassified the documents, that he took them with him to work from home, that the FBI search was a witch hunt, and that former president Barack Obama also kept 33 million documents after leaving office. While all those claims are dubious, the last was blatantly debunked by the National Archives.
The most obvious example of presidential misconduct pertains to Richard Nixon and the Watergate scandal. Nixon was believed to have complied with requests to turn in information after leaving office.
Democratic President Lyndon Johnson’s national security advisor held onto records for years before turning them over to the Johnson Presidential library. Those records showed that the campaign of his successor (Nixon), was secretly communicating with the South Vietnamese government in the final days of the 1968 presidential race in an effort to delay the opening of peace talks to end the Vietnam war. Confident of his impending victory, Nixon’s team was believed to have wanted to stall talks until he assumed the presidency so that he could claim all the credit.
It is worth noting that the PRA was not in operation at that time and before it was activated, former presidents were free to handle official documents as they saw fit.
After the act was passed, it was violated by Fawn Hall, a secretary in Ronald Reagan’s administration. Hall testified that she altered and helped shred documents related to the infamous Iran-Contra affair to protect Oliver North, her boss at the White House National Security Council.
Similarly, Sandy Berger, national security advisor under Bill Clinton, pleaded guilty in 2005 to removing and destroying classified records from the NARA. Berger was sentenced to two years probation and ordered to pay a USD 100,000 fine.
More recently, Obama’s CIA director, David Petraeus, was forced to resign and plead guilty to a federal misdemeanour for sharing classified material with a biographer with whom he was having an affair.
Lastly, Hillary Clinton, while serving as Secretary of State under Obama, faced scrutiny pertaining to her use of a private server to handle sensitive information. While the FBI recommended that no criminal charges be brought against her, it did criticise Clinton for her “extremely careless” behaviour. That rebuke (timed days before the election) played a huge role in Trump’s victory, especially because he repeatedly called for her to be “locked up” over the matter.
In May 2021, Attorney General (AG) Merrick Garland issued a memorandum to all Justice Department personnel, warning them that “law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election,” nor should they take any action that may create “the appearance of such a purpose.”
Garland’s memo echoed similar memorandums issued by his predecessor Bill Barr in 2020, by AG Loretta Lynch in 2016, AG Eric Holder in 2012, and AG Michael Mukasey in 2008. In other words, the Justice Department has long been cautious about taking any action that could change the result of an election or cast doubt on the institution’s impartiality. It is because of these norms that FBI Director James Comey’s decision to publicly disparage Clinton’s email server was met with much criticism.
The US institutions are justifiably cautious in levying charges against any high profile politicians, let alone a former president. The DOJ knows that it took a considerable risk when it started an investigation into the Mar-a-Lago documents and it is unlikely to have done so without sufficient evidence. We may not know all the details, but if we go by the Justice Department’s decision to prosecute, we can reasonably suspect that there is more to matter than meets the eye.