After all has been said and done, Trump's classified documents haul is evidence, pure and simple, of grubby-handed theft.
For understandable reasons, much of the recent public discussion about Team Trump’s mishandling of official documents has focused on the situation’s more dramatic and controversial elements. The FBI’s unprecedented execution of a search warrant at an ex-President’s estate. The potential national security implications of some of the documents seized. The increase in violent threats against the FBI. The post hoc, uncorroborated, undocumented, arbitrary, self-serving theory about automatic declassification somehow happening every time Trump simply carried materials from one part of the White House to another. And so on.
With all of that flying around, it’s easy to lose sight of the fundamental and relatively banal malfeasance underlying the whole controversy: Trump took a bunch of stuff that didn’t belong to him and has been trying to keep it.
The care and feeding of presidential records
Federal law is clear about the ownership of presidential records. The Presidential Records Act (PRA), 44 U.S.C. §§ 2201-2209, promulgated largely out of concern over Richard Nixon’s desire to conceal embarrassing and damning information from posterity, explicitly vests the right of “complete ownership” of presidential records in the United States, not in a current or former occupant of the Oval Office. This federal property right encompasses unclassified and classified documents alike. Presidential records include any…
documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.
Sitting Presidents are the chief custodians and managers of their presidential records, to be sure, but when one leaves 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.” Ordinarily, White House officials try to preserve, organize, and log presidential records, which at the end of a presidency are transferred to the Archivist—actually, the National Archives and Records Administration (NARA)—for vetting, storage, security, and public release as appropriate.
Laws are for chumps, not for Trumps
Yet by the end of January 2021, numerous boxes of presidential records were at or on their way to Trump’s private residence in Florida, when they should have been at or on their way to a NARA facility, along with all the other Trump White House documentation. During the next year, NARA worked to obtain those diverted records. After NARA resorted to warning Team Trump that it would refer continued recalcitrance to Congress or the Department of Justice, fifteen boxes finally emerged from Florida in January 2022.
But other records remained at Mar-a-Lago.
Team Trump handed additional documents over to the FBI and DOJ in June 2022, but still more remained at Mar-a-Lago. And as the world knows, the FBI seized around two dozen boxes and other materials on August 8.
The failure to send records from Mar-a-Lago to NARA for over a year is not merely the result of some bureaucratic confusion or disorganized packing frenzy in the White House during the final days of the Trump administration. Trump was advised, repeatedly, that federal law requires the preservation of presidential records and their transfer to NARA. But reporting indicates he has deliberately resisted efforts to comply, even asserting that “it’s not theirs, it’s mine,” according to several advisors.
Of course, the PRA provides in no uncertain terms that presidential records are “theirs,” not his.
Grand Theft Autocrat
The PRA itself imposes no criminal penalties for absconding with presidential records, but other applicable provisions of the U.S. Code are not as toothless. For example, 18 U.S.C. § 641 states:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof . . . [s]hall be fined under this title or imprisoned not more than ten years, or both . . . .
Similarly, 18 U.S.C. § 2071 provides:
Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
Note that neither statute limits “any record” to classified documents. Note also that 18 U.S.C. § 2071 is one of the three criminal statutes cited in the warrant authorizing the FBI’s search of Mar-a-Lago. We don’t know with much certainty or precision whether the government’s focus is on potential concealment, removal, mutilation, obliteration, destruction, or some combination of these acts.
The dust hasn’t yet settled: But it’s still pure theft
August 8 was about far more than the PRA, of course, as the warrant indicates. We have since learned that federal officials had become gravely concerned about Team Trump’s representations regarding the presence of classified documents, compliance with one or more grand jury subpoenas, and handling of highly sensitive national defense information, among other things. And there is certainly a lot we don’t yet know about this murky and complicated situation. But we can say, with a fair degree of confidence, that a core element of this scandal is the simple, base, grubby act of theft.
Lex Lata holds Associate’s Degrees in Drinking and Knowing Things from Casterly Rock Community College. He lives with Lady and Lad Lata in a weird old house near Minnesota’s 9,997th lake.