Trump flouted the Presidential Records Act. Will he suffer the consequences?

WASHINGTON While he was president, Donald J. Trump was known to destroy, tear up, remove and even flush White House documents down the toilet. He often avoided the White House switchboard, using his own cellphone or those of his aides to communicate.

The practices, which have drawn new attention following the House inquiry into the Jan. 6 attack on the Capitol, have raised questions about whether Mr. Trump’s substandard behavior was also a crime. .

The House Oversight Committee said this week that Mr. Trump’s handling of the documents appeared to constitute “serious violations” of the Presidential Records Act and announced an investigation into the matter.

The National Archives consulted with the Justice Department about Mr Trump’s records retention practices, after discovering he had taken away more than a dozen boxes of presidential records, including what they believe to be classified documents, with him when he left office. The Washington Post reported that some of them were clearly marked “top secret”.

And his use of cellphones to conduct official business resulted in large gaps in the official White House logs of his calls on Jan. 6, 2021, hampering investigators’ efforts to build an accurate record of what he was doing during the incident. ‘riot. If he failed to keep cellphone records and turn them over to the National Archives, that could also be breaking the law.

Here’s what the Presidential Records Act is and why Mr. Trump’s behavior may have violated it.

In 1978, after Watergate, Congress enacted the Presidential Records Act, which made a president’s records the property of the United States, not his personal property, and established a process to ensure that Congress and the public may possibly have access to it.

It aimed to prevent future presidents from doing what Richard M. Nixon wanted to do after he resigned in disgrace, when he planned to destroy tapes documenting actions he and others had taken in response to the Watergate investigation. .

The law requires that a president’s records be turned over to the National Archives once he leaves office and made available to the public 12 years later – although some entities, such as congressional investigators , can get them sooner.

The law excludes a president’s personal records — identified as those “purely private or non-public” — from retention requirements and grants the president a “high degree of discretion over what records to keep,” according to the Research Service of Congress.

It also provides a process for destroying records that typically includes seeking permission from the Archivist of the United States, who may consult with Congress. There is no indication that Mr. Trump did so in the cases in question.

The House Oversight Committee has asked the National Archives for information regarding its communications with Mr. Trump’s team about 15 boxes of White House documents discovered at Mar-a-Lago, his residence in Palm Beach, in Florida, after leaving office.

Mr. Trump had been loath to return the documents despite repeated efforts by the National Archives to obtain them, and at one point the agency threatened to send a letter to Congress or the Justice Department if he continued to withhold the boxes, according to a person familiar with private discussions.

“If former President Trump intentionally destroyed documents or hid documents in the National Archives — where they must legally be kept — he must be held accountable,” said Rep. Carolyn B. Maloney, Democrat of New York and chairwoman of The surveillance. panel.

Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, said it appeared Mr Trump had violated the Presidential Records Act, given his penchant for tearing up documents.

“Any act of unauthorized destruction or unauthorized removal of documents is against the law,” Mr. Aftergood said.

The issue of Mr. Trump’s cellphone use is more obscure. The law was written before the invention of email or cell phones, so it does not mention either. But given the law’s purpose – to ensure a complete record of presidential affairs – some experts believe Mr. Trump’s practices have violated its spirit, if not its letter.

A flaw that some experts see in the Presidential Archives Act is its lack of a strong enforcement mechanism.

Under the law, the archivist has “ultimate responsibility” for ensuring the preservation and integrity of the presidential records, Mr. Aftergood said.

“But the archives don’t have their own police force and don’t have much investigative capacity to speak of,” he said. “They can ask questions and write harsh letters. But the answer depends on the White House or the president or the agency involved.

Mr. Trump’s practice of tearing up documents could expose him to additional criminal exposure, if the destruction of documents is part of an effort to prevent an investigation.

“There could be liability under an obstruction law, but the context and the facts here would be critical,” said David H. Laufman, a former Justice Department lawyer who oversaw the investigation into former Secretary of State Hillary Clinton’s use of a private mail server. .

“If there is an intent to destroy records to prevent a government agency from performing its lawful function, there could be a conspiracy to defraud the United States,” Mr. Laufman said.

But he warned that the Justice Department is often reluctant to press charges without historical precedent, and the agency has never charged a former president with destroying or suppressing documents.

“In a case involving a former president, the onus should be particularly high for particular behavior that was not the basis of prior enforcement action,” Laufman said.

The penal codes, which are punishable by jail time, prohibit conduct that “willfully injures or commits depredation against any property of the United States” or “willfully and unlawfully conceals, removes, mutilates, erases, or destroys” government records.

Samuel R. Berger, national security adviser to President Bill Clinton, pleaded guilty in 2015 to a misdemeanor charge for removing classified documents from government archives.

Presidents have the power to decide what is classified and what is not, but only while in office.

“This could present a complicating factor for prosecutors in assessing their likely success should they charge him or others with a crime,” Laufman said.

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