According to a new report by The Washington Post, the National Archives had to retrieve a large number of boxes from Mar-a-Lago that were unlawfully removed by President Trump or his staff upon leaving the White House. There are strict laws on the preservation of presidential documents, laws that President Trump was repeatedly accused of flaunting during his presidency. However, the most serious element of this latest allegation is that the removed material included clearly marked classified information, including some at the Top Secret level.
We still do not have confirmation of the allegation from the National Archives but Trump himself acknowledged that boxes were removed and called the exchange friendly and routine. There are often conflicts over what material can be removed by departing presidents, though the reports are suggesting that this conflict was more serious in light of the status of the documents.
The allegation that Trump removed classified information is a potential criminal violation. It is also highly ironic given Trump’s long use of “Lock Her Up” to refer to Hillary Clinton’s use of a private server for official and classified material.
While the Presidential Records Act requires the preservation of such documents (and the removal was likely in violation of that law), it is relatively weak on enforcement elements. As we have previously discussed, presidents have long chaffed at both the limitations or disclosures imposed by the Act. I previously wrote about these disputes in a law review article with Cornell. Jonathan Turley, Presidential Records and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Control and Ownership of Presidential Records 88 Cornell Law Review 651-732 (2003).
The 1978 law requires that any memos, letters, emails and other documents related to the president’s duties be preserved for retention by the National Archives and Records Administration at the end of an administration. Trump was previously warned about the law after he reportedly tore up some documents, though he recently denied reports that he literally flushed some documents down a White House toilet.
There are some criminal provisions that can apply to such cases, though such application to a former president would be unprecedented. The Section 1361 states that anyone who “willfully injures or commits any depredation against any property of the United States” can be given a fine or up to one year imprisonment if convicted. The Section 2071 states that 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” can be fined or face up to three years in prison if convicted.
Again, those laws have never be used against a former president.
The allegation of the removal of classified material can trigger other laws barring the removal of such material without authorization and without proper protections. Those laws were raised with regard to former FBI Director James Comey removing FBI material and then leaking information to the press. Comey clearly violated federal law but was not prosecuted.
There have been other officials who have violated these laws without prosecution. In the case of President Bill Clinton’s former national security adviser Sandy Berger, he stuffed classified material in his socks to remove them from the archives. General David Petraeus was accused of giving access to classified information to his alleged lover.
Controversies like the one involving Sandy Berger make it less likely that this would be treated as a criminal matter, though we still do not know key facts. Moreover, one would expect a search warrant to be issued if the Justice Department was treating this as a criminal investigation. Once classified material is found, they would have a basis for demanding a broader search of areas and computers.
Nevertheless, this remains a serious allegation leveled against the former president. You cannot be part of the “Lock Her Up” crowd and immediately pivot to “Let Him Go” when a similar allegation is raised against the former president. That does not mean that the allegations are true, but they should be confirmed.
There are a host of violations that may apply in such a case from the unauthorized removal to the possible possession of classified material by unauthorized parties to the storage of such material in an unauthorized location.
Ironically, before leaving office, Trump had the ultimate declassification authority. However, if the material was still top secret when he returned to his status as a private citizens, he may have tripped the wire on some of these laws. I do not know of any authority for a former president to retain classified material. Former presidents have access to such documents at the National Archives.
This should not be a difficult story for the government to confirm. Either some of the documents were marked classified or they were not. The question then becomes a question of why those documents were included in these boxes and the specific knowledge or involvement of the former president.