A look at issues surrounding Trump and presidential records

Eric Tucker
Associated Press

Washington – Revelations that Donald Trump took government records with him to Mar-a-Lago are a political headache for the former president – and a potential legal one.

House investigators have opened an investigation and the National Archives and Records Administration has reportedly asked the Justice Department to look into the matter. The Justice Department and the FBI have not yet said what, if anything, they’ll do.

President Donald Trump listens to a reporter's question in the Oval Office of the White House, Monday, Dec. 7, 2020, in Washington.

A look at what could lie ahead:

What happens when other agencies seek a Justice Department investigation?

The Justice Department routinely receives referrals from Congress and other government agencies when those agencies come upon conduct they think might break the law.

Sometimes those referrals result in investigations and even criminal charges, though in many other instances they do not. The Justice Department is generally not bound to take any action suggested to it by another agency.

The Washington Post first reported this week that the archivist asked the Justice Department to investigate the discovery of 15 boxes of White House records recovered from Trump at his Mar-a-Lago resort in Palm Beach, Florida, and that the former president had torn up records both “sensitive and mundane.”

More: Records obtained by Jan. 6 panel don’t list Trump’s calls

What might investigators look for?

There are several issues potentially at play, including the Presidential Records Act, which was enacted in 1978 after former President Richard Nixon wanted to destroy documents related to the Watergate scandal.

The law mandates that records made by a sitting president and White House staff be preserved in the archives. An outgoing president is responsible for turning over documents to the National Archives before leaving office. Another statute, punishable by up to three years in prison, makes it a crime to conceal or intentionally destroy government records.

But a potentially more serious issue concerns the handling of classified material. The Post also reported that some of the recovered documents were clearly marked as classified, including at the top secret level.

“I think the obvious legal issue presented is whether the removal of classified information from the White House and its transport and storage at Mar-a-Lago – a place unauthorized to keep classified information – was a violation of law, and if so whether it merits criminal prosecution,” said David Laufman, who as the former head of the Justice Department’s counterintelligence section was involved in the 2016 investigation into former Secretary of State Hillary Clinton.

What does the law say about the handling of classified records?

There are multiple statutes governing classified information, including a law that makes it a crime punishable by up to five years in prison to mishandle such records either intentionally or in a grossly negligent manner.

Though that statute does permit prosecutors to charge an individual for negligence, Justice Department prosecutions over the last century have focused on what former FBI Director James Comey in 2016 described as a “clearly intentional and willful mishandling of classified information,” indications of disloyalty to the United States or the exposure of vast quantities of classified information. Comey made the statement in announcing the FBI would not recommend charging Clinton.

In other words, the mere misuse of classified information does not necessarily form the basis of a prosecution.

How often does the Justice Department investigate these sort of cases?

It’s hardly unheard of for senior government officials to find themselves entangled in classified information investigation.

Perhaps the most notable one in recent memory involved the federal probe into whether Hillary Clinton mishandled classified material through a private email server she used as secretary of state in the Obama administration.

The FBI ultimately concluded that 110 emails in 52 email chains contained classified information at the time they were sent and received, but decided against charges because officials concluded that she had not intended to break the law.

Other cases have involved significant discretion by prosecutors.

In 2005, President Bill Clinton’s national security adviser, Sandy Berger, was fined $50,000 for taking classified documents from the National Archives in a deal that spared him prison time.

A decade later, former CIA Director David Petraeus pleaded guilty to a misdemeanor offense of knowingly removing classified information and retaining it at an unauthorized location, admitting that he providing eight black binders of classified information to his biographer. He was sentenced to two years’ probation as part of a plea deal.

How does Trump's status as a former president factor into any investigation?

This will be a key question since Trump could presumably attempt to argue that, while president, he had original classification authority and was the ultimate arbiter in determining what is classified – and what is no longer so – and that the documents in his possession had been declassified.

“I doubt that Trump or people close to him went through such a formality given what we know about the informality with which he treated official documents,” Laufman said. “But the fact that he possessed that authority could muddy the water, potentially, for the government meeting its burden of proof in a criminal case.”

He added that the department should attempt to unpack the relevant facts, adding that it would be “derelict” for the FBI to not undertake an investigation and see where the facts lie.