By Chris Truax
Monday, February 14, 2022
Revelations about Donald Trump’s “document retention practices” have
come fast and furious over the last two weeks. First came confirmation from the
National Archives that Trump really did habitually tear government records into
shreds (a fact which has been reported in the media since 2018). Then came the
news that Trump had improperly retained 15 boxes of documents in violation of
the Presidential Records Act and shipped them to Mar-a-Lago. Now there are
numerous reports in the press that several of these improperly retained
documents were classified. Some of them were supposedly even top secret. And
now the National Archives has referred the situation to the Department of
Justice for possible prosecution.
Is prosecution a real possibility? Or is this yet another case where
Trump’s clearly out-of-bounds behavior either can’t or won’t be prosecuted?
Ironically, the juiciest part of the story is probably the least likely
to be prosecuted: Trump carting off highly classified material to Mar-a-Lago—à
la Hillary Clinton.
There are problems with prosecuting Trump for mishandling classified
documents. For example, the Department of Justice would have to demonstrate
that Trump himself was responsible for removing the
documents—and that he had done so knowing they were classified. Establishing
those facts will be hard even if they are true and these documents were not
removed either by accident or at the direction of someone else.
Perhaps the biggest problem though is, that when it comes to classified
information, a sitting president really is kind of above the law. While he was
president, Trump had the ultimate authority to decide what was classified and
what wasn’t. There is at least one documented example of him “declassifying”
highly sensitive information on a whim so he could brag about it to the
Russians. If he were criminally charged with improperly handling classified
documents after he left the presidency, he could always claim that he had
declassified those particular documents while he was still president. This
would not be a defense to be proud of, but it might also be hard to disprove.
Then there’s the Presidential Records Act which requires the White House
to preserve presidential records and transfer them to the National Archives.
Even though Trump has clearly violated both the spirit and the letter of the
law, he can’t be directly prosecuted under the act because it doesn’t have
criminal penalties.
There are, however, other statutes—in particular 18 U.S.C. § 2071—that
deal with the improper handling of government records and that could form the
basis of a prosecution. This statute makes it a felony punishable by three
years in prison to willfully and unlawfully conceal, remove, mutilate,
obliterate, or destroy a federal record.
Applying that to the records that Trump took to Mar-a-Lago might be tricky
because in order to commit the crime, you have to know what you are doing is
illegal and you have to know that the records you are removing from federal
custody are federal records. That may be difficult to prove in certain cases.
For example, Trump apparently took the notes he had received from Kim Jong-un
and the letter that President Obama had left in the White House for him. Though
they were not, Trump could certainly argue that he thought these were his
personal property since they were addressed to him. Good faith mistakes don’t
violate 18 U.S.C. § 2071.
But that argument would be harder to make with other documents,
especially if Trump took classified documents with him when he left. Trump
might be able to declassify documents on a whim, but if a document is stamped
“Top Secret,” he would have trouble claiming that he thought it was his
personal property. (Of course, any prosecution would still have to prove that
Donald Trump was personally responsible and that he knew these particular
records were being removed from the White House.)
* * *
Funnily enough, the activity that puts
Donald Trump in the greatest legal danger is also the most absurd: his habit of
tearing up documents into little pieces.
First, this behavior was extensive and extremely well documented. It
apparently went on throughout his entire presidency. And hundreds, probably
thousands, of documents were destroyed this way. Some of the documents provided
to the January 6 Commission had been taped back together and the National
Archives apparently has bags full of hand-shredded documents that still need to
be reassembled. Even if all these shredded documents were recovered by White
House staff attempting to comply with the Presidential Records Act—a generous
assumption—18 U.S.C. § 2071 prohibits both mutilation and destruction of federal
records. That someone was able to tape them back together is not a defense.
The usual problem with a prosecution like this would be proving that
Trump had the necessary mens rea, in other words, that he knew
that these were federal records and that he knew that it was illegal to tear
them up. In most cases, you have to prove a defendant had the required criminal
intent through circumstantial evidence. Not here. Trump was repeatedly warned
that tearing up documents was illegal, both by White House counsel Don McGahn
and by his first two chiefs of staff, Reince Priebus and John Kelly. So there
is no question whatsoever that Trump knew his behavior violated the law. In
fact, we have Donald Trump’s own word for it.
You’ll recall that Nancy Pelosi ripped up a copy of Donald Trump’s
speech after his 2020 State of the Union address. Trump, mistakenly, thought
the copy he handed Pelosi was a federal record and he didn’t take kindly to
this, telling
reporters during a press gaggle on February 7, 2020, “Well, I thought
it was a terrible thing when she ripped up the speech. First of all, it’s an
official document. You’re not allowed—it’s illegal what she did.” You will
never, ever see better proof of criminal intent than that.
Nonetheless, the Department of Justice could still decline to prosecute.
Prosecutors have prosecutorial discretion and are supposed to weigh the costs
and benefits of a prosecution before proceeding—even if they think they have a
case. For example, the Department of Justice has, apparently, decided not to
prosecute Donald Trump for obstruction of justice based on the findings in the
Mueller Report. This is probably because the DOJ believes that it would be
difficult to prove the charges beyond a reasonable doubt and
out of concern for the precedent that would be set by prosecuting a former
president for activity in what might be a complex constitutional gray area.
But neither of those concerns should stop the DOJ from prosecuting
Donald Trump for shredding documents. There’s no question that he did it and it
isn’t a gray area. Trump repeatedly violated a simple, clear-cut legal duty
despite being repeatedly warned that what he was doing was illegal. His
willful, calculated, open, and notorious refusal to follow the law is exactly the
kind of thing that prosecutors most want to prosecute because failing to do so
sends a message.
If you can’t prosecute someone—even the president—for intentionally and
knowingly violating a law for four years, then you can never prosecute anyone
for violating it and that law is a dead letter.
Perhaps best of all, while destroying official records is a felony, it’s
also pretty boring.
Prosecutors shouldn’t consider the political ramifications of their
charging decisions but this one has the added bonus of being relatively
uncontroversial. Prosecuting Trump for incitement on Jan. 6th would be a
political nightmare for all kinds of reasons. By contrast, even Trump’s most
radical supporters can’t mount an indignant, impassioned defense of Donald
Trump’s refusal to stop illegally tearing up documents. Especially since it’s
too obviously true.
While this hasn’t really sunk in, either with Donald Trump or the public
at large, Trump’s habit of hand-shredding federal documents places him in his
greatest legal danger yet. This isn’t a one-off act, like his call to the
Georgia secretary of state asking him to “find” votes. Nor is it a case where
you can possibly argue that what Trump did was somehow within the scope of his
presidential powers, or that he didn’t know that he was breaking the law.
It’s a flagrant, long-term, habitual violation that Trump knew was wrong
even as he continued to engage in it. The only possible excuse for his behavior
is that he believed that laws like the one he violated were for little people
and not for him.
Now it’s up to Merrick Garland to show Trump that he was wrong.
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