The FBI has given us a rough inventory of how many top secret, secret, and confidential documents it found at Mar-a-Lago, former President Donald Trump’s country club home in Florida. But we don’t know what was in these classified documents, why they were classified, whether they had ever been declassified, and whether there was any potential harm to the United States or our allies by these documents being held haphazardly.
It’s possible there are names of U.S. spies in China on the pages Trump left in his desk drawer, but it’s also possible there’s nothing that important or dangerous on any of those documents. How could classified documents not be sensitive documents? Well, because “the government classifies everything,” as liberal Jeffery Toobin wrote while defending Hillary Clinton’s secret use of a private email server to send classified documents.
“Government bureaucracies have every incentive to over-classify,” Toobin wrote, paraphrasing the late Democratic Sen. Daniel Patrick Moynihan. “It’s the risk-averse approach, and there’s no penalty for erring on the side of caution. Besides, over-classification makes their work seem more important.”
“The Real Clinton Email Scandal,” according to Democratic Justice Department alumnus Matthew Miller, “Our Ridiculous Classification Rules.”
Given this widely acknowledged plague of overclassification, we cannot conclude that Trump had sensitive documents just because he had classified documents. We would need more information to come to that conclusion.
But we can conclude that Trump had documents he shouldn’t have had — because they aren’t his.
The Watergate-era Presidential Records Act makes it clear that the president doesn’t own the files, briefing papers, memos, or emails he sends or receives as president. The people do.
“The United States shall reserve and retain complete ownership, possession, and control of Presidential records,” the law reads.
A presidential record is defined as a document or other material that is created by or for the president or received by 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.”
While Trump was president, the documents weren’t his. Instead, he was the custodian of the records. Trump never owned these documents, just as he never owned the White House or Air Force One. The public owned those documents, and Trump was their caretaker.
Once he was no longer president, Trump had no control over them. That seemingly makes it illegal for him to take the documents with him when he left the White House on Jan. 20, 2021.
As the Congressional Research Service wrote in a 2019 overview: “Because the United States owns all presidential records, a former President must seek the Archivist’s permission to display presidential records in a different facility, such as a presidential library.”
Because these documents were not his, Trump was supposed to return them, and the government had the authority to get them.
Federal law explicitly orders the archivist to work with the Justice Department to recover government records improperly taken: “With the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed.”
The National Archives asked repeatedly. Trump apparently blew them off. That left the DOJ feeling it had to raid his house. The raid was legal regardless of what was or wasn’t sensitive or classified. The raid was legal because Trump took records that weren’t his, and he wasn’t returning them.
