What kind of criminal case is the Justice Department building against Trump?
After FBI agents carted away about a dozen boxes of presidential records from Donald Trump’s opulent Mar-a-Lago residence, the question hanging over that mountain of paperwork is: What kind of criminal case is the Justice Department building against him?
Federal authorities are focusing not only on whether the former president violated a law requiring him to turn over almost all of his White House documents to the National Archives, but also on whether Trump mishandled classified documents found at his Palm Beach resort.
Legal experts, including former federal prosecutors, say the Justice Department and FBI would never have obtained a search warrant and launched such an unprecedented raid on a former president’s home Monday unless Trump was suspected of committing a crime or possibly letting classified documents on national security circulate at Mar-a-Lago.
“There is no question in my mind that they used a search warrant because the government was not getting the information they were requesting from Donald Trump,” said longtime Miami attorney Mark Schnapp, who had worked as a federal prosecutor.
“This was decided at the highest level of government,” he said. “They had every right to be concerned who may have seen those classified documents.”
One of Trump’s lawyers, Christina Bobb, told Right Side Broadcasting Network that the raid on Mar-a-Lago “came as a shock.” She said the former president “has been very cooperative” with the FBI and Justice Department, even allowing agents to visit in June to talk about classified materials that needed to be stored in a secure place.
“The raid was really unnecessary and a bit overkill considering that we had never withheld anything from them in the past,” Bobb said Tuesday.
But the FBI’s search warrant, which was signed by federal Magistrate Judge Bruce Reinhart in West Palm Beach, said Trump had failed to turn over his presidential documents, according to law-enforcement sources familiar with the raid. The documents included classified materials that the National Archives and Records Administration has tried to obtain from Trump since he and his lawyers initially turned over 15 boxes of sensitive documents in January that the former president had brought to Mar-a-Lago.
THE PRESIDENTIAL RECORDS ACT
Trump, like his predecessors in the White House, is subject to the
Presidential Records Act. The law was passed in 1978 after former President Richard Nixon sought to destroy recordings made in the White House that documented activities related to the Watergate scandal.
When a president leaves office, the archivist takes custody of the records from that administration and is responsible for their preservation and for providing access to the public, according to a Congressional Research Service report.
“The Presidential Records Act requires that all records created by presidents be turned over to the National Archives at the end of their administrations,” the National Archives said in a statement this year. Jason R. Baron, a professor at the University of Maryland’s College of Information Studies and former director of litigation at the National Archives, said the law is clear-cut.
“The legal ownership of presidential records immediately transfers to the Archivist of the United States when a president leaves office,” said Baron, who also worked as a civiltrial attorney for the Justice Department. “There is no provision of the Presidential Records Act that allows a former president to take presidential records of any kind from the White House to his home. This applies both to classified records and unclassified records.”
“Since the enactment of the [law], all presidents have respected that provision until the circumstances we’re in now,” he said.
Equally significant, Trump specifically faces scrutiny for the removal of classified materials from the White House to Mar-aLago, including documents labeled “Top Secret” and “Confidential.” The law prohibits any employee of the U.S. government from “knowingly” possessing and removing classified information without authority to an unauthorized location.
“The level of intent [to make a case] does not require someone to know that they are violating the law,” said Schnapp, the former prosecutor at the U.S. Attorney’s Office in
Miami. “They simply have to know they are possessing classified information.”
Bobb said that anyone bringing charges is going “to have a hard time proving that he actually even knew anything was in the boxes or anywhere else.”
NOTHING OF SUBSTANCE, TRUMP ATTORNEY SAYS
It is not the first highprofile FBI investigation of a potential records crime. In 2016, former Secretary of State Hillary Clinton’s use of a private server for government work was the subject of an expansive federal probe that consumed her presidential campaign and, by her own account, might have cost her the election to Trump.
It was Republican lawmakers, reacting to Clinton’s email practices, who increased the penalty for unauthorized removal of classified material from a misdemeanor to a felony — a punishment now looming over the former president.
Bobb, who was at Mar-aLago during the FBI search, told far-right media on Tuesday that she and the former president’s other attorneys had already reviewed all of the classified documents stored in Trump’s personal home before they were repossessed by law enforcement Monday night.
“We went through everything,” Bobb told Right
Side network. “There wasn’t anything of substance in there.”
Bobb said that the FBI is “not above” planting evidence, echoing a conspiracy theory circulating in right-wing circles.
But “I think it’s more likely than not that they will come up with a bogus charge with little to no evidence,” Bobb said. “Like, if they find something that was classified secret that has no significant meaning — whether it is meaningful or not, they can prosecute anyway.”