Former President Donald Trump announced Monday that his Mar-a-Lago residence was “raided” by the FBI. The announcement sent shockwaves throughout the political world. While the DOJ has not released any official information over the Mar-a-Lago raid, the FBI search was reportedly related to the ongoing investigations into Trump’s possession of classified information, which some claim could constitute a violation of the “Presidential Records Act.”
Initial Reports of an Investigation
The Washington Post reported in February 2022 that National Archives had consulted with the DOJ about steps to take about President Trump’s holding of classified documents at his Mar-a-Lago home. The report came after the National Archives retrieved 15 boxes of White House documents that were taken to Mar-a-Lago but were supposed to be delivered — in other words, surrendered — to the National Archives.
The FBI raid on the home of a former POTUS (and the potential GOP nominee for president in 2024) is an unprecedented event. With that being said, it is important to understand what is the “Presidential Records Act”; what the FBI is allegedly investigating; and what are the potential sanctions Trump could face if he is eventually charged over this Act.
Palm Beach (United States), 09/08/2022.- Supporters of former President Donald Trump stand outside Trump’s Mar-a-Lago residence, amid reports of the FBI executing a search warrant as a part of a document investigation, in Palm Beach, Florida, USA, 09 August 2022. EFE/EPA/CRISTOBAL HERRERA-ULASHKEVICH
What Is the Presidential Records Act?
Out of all the investigations Trump has been the center of — Russia allegations, the first impeachment, tax returns, real estate deals in New York, January 6th, etc. — it is very unexpected that the investigation that got the FBI to raid his Florida home was over a mundane and —at first look— an inconsequential piece of legislation that governs how presidential papers are supposed to be handled once a new administration comes to power.
In 1978, Congress passed a law establishing that presidential records are not the property of the President but of the U.S. The law also says that the sitting president is primarily responsible for preserving the records during his tenure. Also, it establishes that the National Archives gets ownership of White House documents immediately after a POTUS leaves office.
The Watergate Scandal and Richard Nixon
The Act was passed just four years after the Watergate Scandal forced President Nixon to resign. Before 1978, it was customary for presidents to preserve their records and donate them to the National Archives once they left office.
Nixon, however, defied that tradition and reached a deal with the Administrator of General Services to allow him to destroy the Watergate tapes. Congress quickly passed a law preventing that from happening and eventually drafted the PRA to codify the practice of preserving presidential records into law.
Palm Beach (United States), 09/08/2022.- Authorities stand outside Mar-a-Lago, the residence of former president Donald Trump, amid reports of the FBI executing a search warrant as a part of a document investigation, in Palm Beach, Florida, USA, 09 August 2022. (Estados Unidos) EFE/EPA/CRISTOBAL HERRERA-ULASHKEVICH
The boxes that were retrieved by the National Archives in February 2022, according to The Washington Post, contained mundane documents like Kim Jong-un’s and Barack Obama’s letters to Trump. This, however, did not stop the National Archives to referred the case to the DOJ. It has been reported that the Mar-a-Lago raid was related to the possibility of Trump taking classified documents with him once he left office.
The Department of Justice and the FBI have not released any official explanations for the operation.
Trump is not the first politician embroiled in a controversy over withholding official records. Former President George W. Bush was also accused of using a private email server during his tenure. Former Secretary of State Hillary Clinton was also infamously involved in a scandal over using a private server for official communications during her office.
What Are the Sanctions for Violating the Public Records Act?
There is some legal debate over the potential punishment for people who violate the law regarding the protection of federal records. Offenders of the PRA can theoretically be prosecuted under three provisions of the U.S. criminal code: 18 U.S.C 641, 18 U.S.C 1361, and 18 U.S.C 2071.
The first two sections say that it is a felony to dispose of any record that belongs to the United States and injure its property. The argument is that Trump’s disposal of presidential records — which are property of the United States under the PRA — could be charged as a felony under these two provisions. The penalty for these charges is either a fine or a prison sentence of fewer than ten years.
The most commonly cited provision, however, is 18 U.S.C 2071, which makes it a crime for anyone who willfully and unlawfully conceals documents deposited in any public office of the United States.
Most importantly, one of the penalties for violating this provision of the American criminal code is that the culprit “shall forfeit his office and be disqualified from holding any office under the United States.”
Of course, this would potentially include the Presidency of the United States, a penalty that would devastate Trump’s political future. Interestingly, this is the same provision that some conservatives cited to argue in favor of disqualifying Hillary Clinton from office after her email scandal.
Palm Beach (United States), 09/08/2022.- Supporters of former US President Donald Trump stand outside Trump’s Mar-a-Lago residence, amid reports of the FBI executing a search warrant as a part of a document investigation, in Palm Beach, Florida, USA, 09 August 2022. (Estados Unidos) EFE/EPA/CRISTOBAL HERRERA-ULASHKEVICH
What the U.S. Constitution Says
Nevertheless, there are some legal disagreements over the constitutionality of 18 U.S.C 2071. While the law appears straightforward, the Constitution only mentions disqualification from office as a result of a successful conviction in an impeachment trial in the Senate. The Constitution does not clarify whether being convicted of a crime disqualifies anyone from holding office. Some legal analysts argue that Congress cannot impose another circumstance for disqualification from office besides the one established in the Constitution.
What to Expect in the Future
There are still many unknown details about the Mar-a-Lago raid. The FBI and the DOJ have yet to reveal what they were investigating when they conducted the search. Similarly, they have not announced if they found anything of importance in Trump’s home.
The following days will be crucial for better understanding the fate of the FBI’s investigation of Trump.
Update [8/9/2022 – 8:46 pm ET]: This timeline in this article has been updated for clarity.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.