The consequences Trump could face for mishandling White House records
Update: On Monday, Aug. 8, 2022, the FBI executed a search warrant at former President Donald Trump's Mar-a-Lago home in Florida. Sources tell CBS News the search was related to a Justice Department investigation into Trump's handling of presidential records.
In the story below, first published on Feb. 10, 2022, shortly after the National Archives referred the matter to the Justice Department, legal experts told CBS News that Trump could face consequences for violating the Presidential Records Act or criminal statutes governing the handling of classified material.
Washington — Former President Donald Trump's alleged improper handling of White House records while he was in office and after he decamped to Florida has prompted fresh scrutiny over whether he flouted federal law and, if he did, whether he can be held accountable for doing so.
The law governing the records-keeping responsibilities of presidents is the Presidential Records Act, which was enacted in 1978 and requires any memos, letters, emails and other documents related to the president's duties be preserved and given to the National Archives and Records Administration at the end of an administration.
But the Archives has recently revealed that Trump tore up documents while in office, some of which were pieced back together by White House records management officials, and brought with him more than a dozen boxes of items and letters to Mar-a-Lago, his Palm Beach, Florida, residence, after leaving office last year. The boxes were retrieved by the Archives last month, the agency said.
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.
Weismann, though, identified two criminal laws that Trump may have violated by destroying White House records. 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 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.
"You can't plead stupidity," Kel McClanahan, executive director of National Security Counselors, told CBS News on whether Trump willfully violated the law. "Ignoring the law is no excuse where in this particular case, that would be a very hard argument to make when we have the evidence that his chiefs of staff, his [White House] counsel were telling him, 'Stop doing this stuff. Stop tearing up these records.'"
McClanahan was referring to a Washington Post report stating two of Trump's former chiefs of staff, Reince Priebus and John Kelly, and former White House counsel Don McGahn warned him about the Presidential Records Act.
"Would a reasonable president know that two chiefs of staff and one general counsel are probably right about the statute? This would be a pretty cut and dry case," he said.
If Trump is not held accountable for violating federal laws governing the safe-keeping of records, Weismann warned other presidents may be less inclined to comply.
"It's definitely sending a message that these presidential record-keeping responsibilities are not very important and you can ignore them with impunity," she said. "If you allow such flagrant violations to go unaddressed, that would be a huge problem."
Addressing the historical value of maintaining presidential documents, Weismann pointed to notes and doodles by former President John F. Kennedy at the height of the Cuban Missile Crisis in 1962. The scribbles were collected by his secretary, preserved and featured in a 2012 exhibition at the National Archives building to help mark the period when the world "teetered on the edge of thermonuclear war."
"The whole point of the Presidential Records Act was to say, this is our history, this belongs to the American public and you, the president, are a caretaker of your records while you're in office," she said. "You're supposed to create them, preserve them, and when you leave office, they go to the people. We're losing part of our history."
The National Archives confirmed last week that some of the documents it received from the Trump White House at the end of the administration had been torn up by the former president and were pieced back together by records management officials, while "a number" of ripped records it received had not been reconstructed by the White House.
The agency also acknowledged Monday that it retrieved 15 boxes containing presidential records from Mar-a-Lago. The Washington Post reported that among the documents and items in the boxes were letters between Trump and North Korean leader Kim Jong Un and a letter former President Barack Obama left for his successor.
The Archives said staff for Trump are "continuing to search for additional presidential records that belong to" the agency.
Archives officials have asked the Justice Department to investigate Trump's handling of White House records, CBS News confirmed Wednesday, though the referral does not mean there will be a criminal investigation or prosecution.
Beyond criminal prosecution for violating federal law, the Justice Department could also pursue civil lawsuits against Trump to obtain presidential records he may have taken with him after leaving the White House, McClanahan said.
"It is tunnel vision to only focus on the criminal aspect when there are so many other alternatives that could serve good public policy that DOJ should have no compunction about doing," he said. "If the people at DOJ are conscientious, I don't believe this is going to go away. I believe something will happen."
Trump, he said, may be counting on the Justice Department and Attorney General Merrick Garland to stay on the sidelines of political fights and is "calling DOJ's bluff."
But "the question is going to be a purely governmental interest and a crime purely against the government and the public, and do you prosecute a former president for committing that crime?" McClanahan said.
The House Oversight and Reform Committee also launched an investigation into Trump's record-keeping practices and requested information from David Ferriero, archivist of the United States, about the 15 boxes recovered from Mar-a-Lago.
"Former President Trump and his senior advisors must also be held accountable for any violations of the law," Oversight Committee Chairwoman Carolyn Maloney, a Democrat from New York, told Ferriero in a letter, adding the panel needs the information to "examine the extent and impact" of Trump's purported violations of the Presidential Records Act.
The New York Times reported the Archives found apparent classified information in the documents Trump improperly took with him from the White House at the end of his first and only term. The discovery led the Archives to contact the Justice Department for guidance, and the department told the Archives to have its inspector general look into the matter, according to the Times.
Trump has denied any wrongdoing and, in a statement Thursday, said the Archives "openly and willingly arranged" the transport of boxes containing letters, records, newspapers, magazines and articles, which he said will be displayed in the future Donald J. Trump Presidential Library.
"The papers were given easily and without conflict and on a very friendly basis, which is different from the accounts being drawn up by the Fake News Media," Trump said. "In fact, it was viewed as routine and 'no big deal.' In actuality, I have been told I was under no obligation to give this material based on various legal rulings that have been made over the years."
It's unclear which decisions the former president is referencing, but federal courts that have heard disputes over possible violations of the Presidential Records Act while Trump was in office have said there is no role for the courts to play in overseeing day-to-day compliance with that law.
