The FBI raid at former President Donald Trump‘s Mar-a-Lago estate on Monday appears to be in connection to material Trump brought back to Florida after leaving the White House, prompting legal experts to speculate whether he will be subject to punishment or barred from running in the 2024 election.
The National Archives and Records Administration asked the Department of Justice in February to investigate if Trump violated the Presidential Records Act, a law passed by Congress in 1978 that prohibited former President Richard Nixon from destroying his records, including the Watergate tapes.
Trump had taken 15 boxes of documents related to his presidency to Mar-a-Lago but returned them earlier this year, according to the Washington Post. However, a grand jury investigation was opened in May regarding how classified material ended up at Trump’s Florida estate.
Under the PRA, presidential records are considered public property. Current and former presidents have an obligation to store them properly and not to destroy them or attempt to conceal them in any manner.
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Multiple sources with knowledge of the search have said the Monday search at Mar-a-Lago appeared to focus on the documents, according to multiple outlets.
The former president’s son, Eric Trump, told Fox News that the search appeared to stem from NARA, admitting his father took “boxes” with him from the White House but decried the FBI’s warrant, saying it should have opted for a request rather than a raid.
Trump’s son also acknowledged he was the one who alerted his father to the raid, as the former president’s statement on the matter first triggered alerts that the FBI had searched his estate.
In addition to holding on to some documents after leaving the White House, Trump reportedly had a habit of ripping up documents. This forced aides to collect scraps and tape together important documents in order to comply with the PRA.
Constitutional law expert Jonathan Turley told Fox & Friends Tuesday that the PRA has “certainly not historically been criminally enforced,” referring to an “egregious” example laid out by Sandy Berger, the late national security adviser to former President Bill Clinton.
“He actually stuffed documents in his socks and snuck them out of a secure location, leaving them at a spot to be retrieved later,” Turley said, adding, “He received no jail time and just pled guilty to a misdemeanor. He wasn’t even forced to lose his security clearance permanently. It was just a three-year suspension.”
Turley also said an FBI raid would require a federal judge to sign off on that matter, saying, “A judge obviously found there was sufficient evidence. … We already know that the compound was the subject of an earlier search in terms of classified material and presidential records.”
Indeed, some legal scholars have challenged Turley’s argument on the lack of enforcement in the history of purported PRA violations, including MSNBC contributor Frank Figliuzzi, who formerly served as the assistant director for counterintelligence at the FBI.
“First, I want to caution people. The majority of people in these cases … if we’re indeed correct that this is largely about a National Archives case, they don’t get charged, but then again, the majority of people turn over their documents,” he said on MSNBC host Lawrence O’Donnell’s show Monday evening.
Anne Weismann, an attorney who worked as counsel for watchdog groups that have filed lawsuits alleging Trump violated the Presidential Records Act, said that “the real problem is there’s absolutely no enforcement mechanism in the Presidential Records Act and there’s no administrative enforcement provision,” according to a Tuesday CBS interview.
Other legal experts, including Marc Elias, the top lawyer for Hillary Clinton’s 2016 presidential campaign who has drawn scrutiny for his role in pushing Trump-Russia collusion claims, have pointed to U.S. Code Title 18, Section 2071.
The passage says anyone “having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.”
Weismann referenced the Section 2071 passage, as well as U.S. Code Title 18 Section 1361, highlighting that anyone who “willfully injures or commits any depredation against any property of the United States” may face a fine or up to one-year imprisonment if convicted.
After Elias posted a viral tweet regarding Section 2071, he later recognized the “legal challenge that application of this law to a president would garner (since qualifications are set in Constitution).”
“But the idea that a candidate would have to litigate this is during a campaign is in my view a ‘blockbuster in American politics,'” Elias tweeted.
The law’s wording on records destruction could pose a significant hurdle for prosecutors who would need to show Trump “willfully” ignored and violated the law.
“If the intent was, ‘Let me get these documents taken out of the way because they could look bad, they could be damning for me in an investigation, in a lawsuit,’ then you’re talking about potential obstruction of justice,” said CNN legal analyst Elie Honig.
Rick Hasen, a professor at the University of California at Los Angeles School of Law, argued in an Election Law Blog post that the Jan. 6 committee investigating the riot at the U.S. Capitol has already paved a more forthright path toward barring the former president from a second presidency.
Hasen said that there is “a powerful case to be made” that Trump’s efforts to overturn the 2020 election make Trump ineligible from running for future office, citing Section 3 of the 14th Amendment, which states anyone who “engaged in insurrection” against the country after taking an oath to support the Constitution is barred from office.
After Trump returned the boxes to the National Archives, its archivist discovered “items marked as classified national security information,” the agency told Congress in a February letter.
The boxes of documents in question reportedly contained correspondence with North Korean leader Kim Jong Un, a letter left by outgoing President Barack Obama for Trump, and other mementos and letters from world leaders, according to the Washington Post. Trump advisers denied at the time that the records were kept for nefarious reasons.
Trump is facing multiple investigations, including a sprawling Capitol riot inquiry in which the Justice Department is reportedly beefing up its team investigating Jan. 6.
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Attorney General Merrick Garland has called the Capitol riot investigation “the most wide-ranging investigation and the most important investigation” the DOJ has ever conducted. Trump has denied wrongdoing.
The Washington Examiner contacted the DOJ and a spokesperson for the FBI declined to comment Tuesday.
