Trump flouted Presidential Records Law. Will he face consequences?

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

The practices, which have drawn fresh attention as a result of the House investigation into the Jan. 6 attack on the Capitol, have raised the question of whether Trump’s norm-breaking behavior was also a crime.

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

The National Archives consulted the Justice Department about Trump’s record preservation practices after it discovered he had taken more than a dozen boxes of presidential files, including what it believes are 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 has led to large gaps in the official White House logs of his calls on Jan. 6, 2021, hampering investigators’ efforts to construct an accurate record of what he was doing during the riot. If he failed to preserve cellphone records and turn them over to the National Archives, that, too, could run afoul of the law.

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

Presidents don’t own their documents.

In 1978, after Watergate, Congress enacted the Presidential Records Act, which made a president’s documents the property of the United States, not his personal property, and laid out a process for ensuring that Congress and the public could eventually gain access to them.

It was aimed at preventing future presidents from doing what Richard M. Nixon wanted to after he resigned in disgrace, when he planned to destroy recordings that documented steps he and others took 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 that they be made available to the public 12 years later — although certain entities, such as congressional investigators, can obtain them sooner.

The act excludes a president’s personal records — identified as those “of a purely private or nonpublic character” — from preservation requirements and grants a president a “high degree of discretion over what materials are to be preserved,” according to the Congressional Research Service.

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 Trump did so in the cases in question.

Trump openly flouted the requirements.

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

Trump had been loath to return the materials 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 was intentionally destroying records or hiding records from the National Archives — where they are legally required to be kept — he must be held accountable,” said Rep. Carolyn Maloney, D-N.Y., chair of the oversight panel.

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

“Any act of unauthorized destruction or unauthorized removal of records is contrary to law,” Aftergood said.

The question of Trump’s cellphone use is murkier. The act was written before the invention of email or cellphones, so it does not mention either. But given the purpose of the law — ensuring a complete record of presidential business — some experts believe Trump’s practices violated its spirit, if not its letter.

There are few consequences for Trump’s actions under the Presidential Records Act.

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

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

“But the archives does not have its own police force and doesn’t have much investigative capability to speak of,” he said. “They can ask questions and they can write sternly worded letters. But the response depends on the White House or the president or the agency involved.”

Destroying documents could violate other laws.

Trump’s practice of ripping up documents could open him to additional criminal exposure, if the destruction of documents were part of an effort to impede an investigation.

“There could be liability under an obstruction statute, but the context and the facts would be critical there,” 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 email server.

“If there’s some intent to destroy documents to preclude a government agency from carrying out its lawful function, there could be a conspiracy to defraud the United States,” Laufman said.

But he cautioned that the Justice Department is often reluctant to pursue prosecutions that have no historical precedent, and the agency has never charged a former president with the destruction or removal of records.

“In a case involving a former president, the burden should be particularly high for particular conduct that has not been the basis of prior enforcement action,” Laufman said.

Trump could face consequences for his handling of classified information.

Criminal codes, which carry jail time, prohibit conduct that “willfully injures or commits any depredation against any property of the United States” or “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys” government documents.

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

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

“That could present a complicating factor for prosecutors in evaluating their likely success if they were to charge him or others with a crime,” Laufman said.