Ex-President Trump, the Presidential Records Act, and a Department of Justice Investigation
The story begins in January 2022, when America’s official recordkeeper, the National Archives and Records Administration (NARA), received 15 boxes of White House records that had ended up in Donald J. Trump’s Mar-a-Lago estate in West Palm Beach, Florida, rather than being handed over to the National Archives at the end of the Trump Administration in January 2021. NARA’s intervention followed a failed bid by Trump to prevent the House of Representatives’ January 6 Committee from accessing his National Archives records as part of their investigation into the Capitol riots of 2021.
As specified by the Presidential Records Act 1978, passed in the aftermath of the Watergate scandal: “Upon conclusion of a President’s term of office…the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential Records of that President”. The Act requires the departing President to ensure that all relevant Presidential records are handed over, “to be deposited in a Presidential archival depository or another archival facility operated by the United States”. Presidential records, as defined by the Act, include all documentary material created or received by the President, his immediate staff, and Executive Office members, “which relate to, or have an effect upon carrying out the constitutional, statutory, or other official or ceremonial duties of the President. “Personal records” are excluded, and a serving President is also allowed to “dispose of those Presidential records that no longer have administrative, historical, informational, or evidentiary value”, with the written consent of the Archivist of the United States, or in certain circumstances with the approval of the relevant Committees of the Senate and House of Representatives.
Upon examining the boxes, the Archivist noted that the returned material appeared somewhat disorganised, with highly classified documents lumped together with more mundane ones, and decided to request the Department of Justice (DoJ), on 9 February 2022, to investigate further. In a subsequent email to Trump’s attorneys, despatched on 10 May, acting Archivist Debra Steidel Wall confirmed that “NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmental Information and Special Access Program materials”. This directly led to an FBI raid on Mar-a-Lago during the morning of 8 August 2022. The raid was approved by FBI Director Christopher Wray, a Trump appointee, and Attorney General Merrick Garland, a nonpartisan Biden appointee, while the search warrant authorising it was signed on 5 August by Bruce Reinhart, Magistrate Judge for the Southern District of Florida. Christina Bobb, a Trump attorney, who was at Mar-a-Lago as the search went ahead, later claimed that the ex-President and his family members had watched most of the FBI search on surveillance cameras from afar. Around 30 FBI agents retrieved a further 27 boxes of documents, and a detailed seven-page property inventory of their collection was released on 2 September, which mentioned 43 empty classified folders. While the Presidential Records Act has been violated in the past, never before has any alleged violation involved such a large volume of documents. The evening of the search, Florida Governor Ron DeSantis denounced the intrusion as “another escalation in the weaponization of federal agencies against the regime’s political opponents”. The search warrant was unsealed on 12 August by Judge Reinhart, as requested by Attorney General Garland, confirming the possible violation by Trump of the Espionage Act 1917, a disclosure which, in turn, led to Senator Rand Paul (Republican-Kentucky) calling for repeal of “this egregious affront to the First Amendment”.
The FBI search was not well received in some quarters, prompting angry and energised Trump supporters to rally around the apparently victimised 45th President. A heavily armed supporter attempted to enter the FBI’s Cincinnati field office on 11 August, only to be shot dead by Ohio State Highway Patrol Officers after a standoff, while other armed supporters undertook a non-violent outside the FBI office in Phoenix, Arizona, two days later. The relatively inconspicuous NARA has itself faced online threats of violence, in addition to FBI agents and DoJ officials. Some of the angriest of Trump’s supporters even see the makings of another Civil War in reaction to the State’s latest assault on their leader.
Many conservatives have vilified the “corrupt” and “pro-Democrat” FBI, an organisation whose Directors have all been Republicans, and its “rogue” agents, and have insisted that incriminating evidence was planted by the FBI agents during their search a Mar-a-Lago. Others believe that a mountain is being made out of a molehill. After all, it’s no big deal when a President decides to remove official documents, especially when he has taken care to “declassify” them before doing so, for which there is a Constitutional prerogative, although certain protocols have to be followed to legitimise the process. There is also the familiar “what about” refrain that others have also guilty of similar actions, including none less than Barack Obama and Hillary Clinton. On 12 August, President Trump, who at times appears to be leading his own defence, thus claimed that Obama “kept 33 million pages of documents, much of them classified”.
The unfolding story is undoubtedly fascinating, with many twists and turns as it develops, but at the same time is by no means implausible. A former American President is openly condemning his nation’s leading domestic intelligence agency, by no means one of Trump’s favourite institutions, and is goading his supporters to join in the attack on what he perceives to be a “witch hunt”, leading pro- “law and order” Republicans to call for defunding, even abolition, of the DoJ and FBI, even as they denounce the “radical left” for their suggestions to defund the police. Trump’s many statements on his Truth Social platform, and the application by his lawyers for appointment of an independent adjudicator, a “special master”, to identify and remove any seized documents that may be subject to attorney-client or executive privilege as well as any personal documents, indicate a loss of faith in the purpose and direction of the DoJ’s investigation, from which there can, however, be no turning back. While the contents of many of the seized documents will necessarily remain secret, hopefully the investigation will tell us how and why they made their way from the White House to southern Florida, and whether there may have been any breaches of national security. To conclude, truth is indeed stranger than fiction, and no novelist appears to have ever written about, leave alone conceived, this particularly strange scenario.
Ashis Banerjee