Former president Donald Trump routinely ripped up papers while in office - and upon leaving the White House, took at least 15 boxes of official records with him to Florida (including documents clearly marked as classified).
Now, as part of a federal investigation, the FBI conducted a court-approved search of Trump’s residence at his Mar-a-Lago club on Monday.
It is not clear what prompted the search, though people familiar with the investigation said it was related to the possible mishandling of classified documents.
Any mishandling could be in violation of a law requiring Trump to preserve his records and phone calls of his official duties as president. If he were to be charged and found guilty of willfully hiding or destroying confidential and classified materials - a big if - some legal experts say he could be barred from being president again. Other experts disagree.
What is the Presidential Records Act?
One law Trump could potentially be accused of breaking by taking or destroying official documents is called the Presidential Records Act.
Every president has violated the Presidential Records Act in some way, such as by using personal phones for texts or emails, for example, presidential historian Robert David Johnson said. But Trump might be the most egregious violator of the law in its 44 years of existence, Johnson said: “Since [Richard] Nixon, there is no example of a president just pretending the law doesn’t exist.”
Trump’s actions have been on a whole other level. According to Post reporting, he tore up hundreds of documents - perhaps more - indiscriminately. His aides used burn bags to destroy documents rather than hand them over for preservation. The New York Times’ Maggie Haberman reports he flushed documents down the toilet. There is a gap of more than seven hours on in his phone logs on one of the most crucial days of his presidency, the day of the Jan. 6 insurrection.
This is all after White House lawyers explicitly told Trump about the law requiring that he preserve documents.
One of the more charitable ways to look at his propensity for ripping up official documents is that it was a habit, almost like a nervous tic. But that doesn’t explain why boxes of official records went with him to Mar-a-Lago rather than being handed over to the National Archives.
Trump previously issued several statements about these actions, denying there was any contention between him and the National Archives, which will work to help set up a presidential library for him.
On Monday, Trump said in a statement that the search was inappropriate because he had been “working and cooperating with the relevant government agencies” - on what, he didn’t say.
What we know about the Justice Department probe so far
Earlier this year, the National Archives recovered 15 boxes of White House records from Mar-a-Lago and saw that some of the documents were marked “classified.” They asked the Justice Department to investigate, and in April, The Post reported that federal prosecutors were looking into it.
By May, the Justice Department began asking former White House aides about the boxes. They also convened a grand jury, a significant escalation in the investigation, and the grand jury issued a subpoena to learn more.
Then in August came the search at Mar-a-Lago by FBI agents. For the FBI to search someone’s home - let alone a former president - requires the government to show an extraordinary amount of evidence that they have reason to believe a crime has potentially been committed. That evidence was presented to a federal judge, who signed off on a court order okaying the search.
To get such a high-profile search warrant, the FBI also likely conveyed a sense of urgency to the judge, said Jack Sharman, who served as special counsel to Congress during the Whitewater investigation.
According to Trump, the agents searched his safe, though he didn’t say what for.
Could Trump, or anyone, be charged with a crime?
Prosecutors could be probing whether the former president or his aides violated the Presidential Records Act, mishandled classified material or lied to investigators about whether they returned all the material to the archives when they were asked to do so.
To determine if Trump himself should be charged with a crime, prosecutors would need to assess his knowledge of and intent with taking the documents out of the White House, said Barbara McQuade, a former U.S. attorney. And prosecutors would want to know what, specifically, was in them.
“I am very curious as to what was in these documents and why he wanted them,” she said. If they were top secret, their classification means that disclosure could be reasonably expected to cause exceptionally grave damage to the national security of the United States. “These are the types of documents that would make most of us quiver to hold,” McQuade said, “let alone retain unlawfully.”
The Presidential Records Act has really been more of a guideline for presidents, said James Grossman, executive director of the American Historical Association. “So if you have people in the White House who want to make things work, then they have guidelines to follow. I doubt it occurred to anybody when it was passed that it would need an enforcement mechanism.” In other words, the law assumes presidents and their administrations will make a good-faith effort to comply. My Post colleagues report that a number of White House staffers did try; they would rush in and piece together Trump’s ripped-up documents.
It’s not clear what prosecutors would need to prove to find Trump - or anyone else - guilty of violating the Presidential Records Act or other laws regarding safe handling of classified and public information, say legal experts. That’s in part because the Presidential Records Act has never had an enforcement mechanism; it’s always been up to the White House to monitor itself.
Willfully trying to hide or destroy official documents is a separate federal crime. It’s punishable by up to three years in jail - and by disqualification from holding public office. Violation of this statute requires a willful intent to take or hide or destroy the documents. Prosecutors would have to prove that Trump or those around him knew what they were doing was wrong, and that they did it anyway.
If he’s charged and found guilty, could Trump be barred from office?
Some legal experts think if Trump is found guilty of hiding classified material, he could be barred from running for president again. The relevant law regarding public documents says that a violator “shall forfeit his office and and be disqualified from holding any office under the United States.”
“There could be constitutional challenges,” said Jeffrey Jacobovitz, a prominent trial attorney in Washington, “but the statute seems to be clear on its face.”
Marc Elias, a prominent Democratic lawyer, pointed to this statute when calling the search “a potential blockbuster in American politics” in a Twitter post on Monday night. He later followed up by saying there’d likely be “a constitutional challenge to the application of this law to a president.”
That’s because the Constitution sets the qualifications for president - and nowhere does it say that being convicted of a crime - including one involving public documents - would bar someone from holding office. “A statute cannot supersede that,” said McQuade.
How record-keeping is supposed to work
At the end of the president’s administration, officials must hand over official documents - typically amounting to tens of thousands of pages - and tapes to the federal government. That can include national security briefs, handwritten notes, daily presidential logs and calendars, emails and faxes, and phone logs. The law also requires that presidents and their staffers take “every practical step” to preserve all this.
The archivists at the National Archives oversee this whole process.
In most White Houses, aides track where the president is and what he’s doing at all times. On Jan. 6, 2021, the day of the Capitol riot, the White House Daily Diary mentions such details as: “11:08 a.m.: The president went to the Oval Office. 12:00 p.m.: The president made remarks at ‘Save America Rally.’ 1:19 p.m.: The President returned to the South Grounds of the White House and went to the Oval Office.”
The National Archives culls the documents and decides which ones to preserve, which ones can become public, and which ones should be private or redacted, based on potential national security concerns or other reasons. A president can destroy a document only after receiving permission from archivists to do so.
The law also set up a system for people to appeal to the National Archives for a record that was redacted. Johnson says that he goes to battle with the National Archives regularly for documents, and that he often loses.
Why the law is important
Every president since the 1930s has preserved a sizable chunk of their records, often to be displayed in their presidential libraries. But it wasn’t until 1978, after Nixon tried to keep many of his documents private, that Congress passed a law codifying the practice that presidents must preserve all historically relevant material. Here’s more on how the law came to be.
Without it, presidents themselves decided which records to share with the public. And, thus, they shaped history in the way they wanted it to be told. Nixon’s library originally portrayed the Watergate scandal only as an attack on Nixon, rather than as an abuse of power. (The Nixon estate lost a 20-year litigation battle to keep the more damaging parts of Watergate out of his presidential library.)
“It’s a better society when the public has access to documents that are produced on the public’s behalf,” Johnson, the historian, said. “So what both Nixon and Trump did, they are really striking at the heart of the definition of transparency.”
The National Archives’ Latin motto ( “Littera Scripta Manet”) loosely translates to “The Written Word Endures.” Its role is to help protect the nation’s history by preserving access to government records, which then allows Americans to hold elected officials accountable for their past actions.
The law also facilitates presidential transitions, by letting the incoming administration read up on what the outgoing administration was doing.