The Weird Law Prosecutors Could Use to Bar Trump From the White House

emDuring Donald Trump’s chaotic final days as president, senior administration officials were less focused on what things Trump may be walking out the White House doors with, and more concerned that he would just walk out the door.

“You have to remember that many of us just wanted him to leave the building without any more violence occurring,” said a former senior Trump official, who served until Trump’s last day in office. “I remember a rushed and confused packing process in those final weeks, often when the president wasn’t consulted at all.”

The former senior aide said the objective was to leave, “restore any level of calm we could, and, quite frankly, to distract [Trump] with whatever we could think of that would interest him.”

But when Trump was finally consulted on packing, he simply pointed at key artifacts he wanted taken to Mar-a-Lago, two aides recalled, and staff obliged.

Ex-National Archivist Thinks Trump Is Hiding His Records to Avoid ‘Prison Time’

It was this frantic packing—combined with Trump’s tendency to take whatever he wants, even if it’s not his property—that eventually led to a bizarre, National Archives-led recovery mission at Trump’s Florida club last month.

It’s far from the twice-impeached former president’s only scandal-plagued run-in with the National Archives. Trump’s habit of tearing up documents and pieces of paper—both confidential and frivolous—has strangely become a focus of the Jan. 6 committee investigation.

Late last month, Archives officials confirmed that some of the materials handed over to House investigators had indeed been “torn up” by the then-president. Some of the papers had to be painstakingly reassembled after they’d been left in absolute tatters by the 45th president of the United States.

But it’s this picayune practice, combined with Trump’s decision to improperly take boxes of documents that should have been turned over to the National Archives, that could, technically, prevent him from ever taking office again. That is, if prosecutors were bold enough to pursue the strange charges that are meant to follow someone willfully concealing, removing, or destroying any presidential records—or even attempting to do so.

Every indication thus far is that they are not.

Trump’s had a long-standing habit of ripping apart papers once he’s finished reading them. Well before he was being handed classified information in the West Wing, Trump was tearing up sensitive documents and trivial memos as he presided over his family business empire and hosted The Apprentice.

According to three people familiar with the matter, on the set of his NBC reality TV series, Trump would personally shred production notes, even Post-it Notes, after and between takes, leaving the show’s staff to sweep up or vacuum up the bits and pieces. While on his private plane or working in Trump Tower, he would regularly tear up—and casually toss aside—copies of Trump Organization financial documents, news articles, and print-outs of tweets that were brought to him.

One of the sources familiar with his habit said he often did this to signal to staff that he was “done” with something.

Trump continued the habit during the entirety of his four-year term. And he was sporadically but repeatedly cautioned by a hodgepodge of White House attorneys, top officials, and obedient aides that tearing up those pages up risked running afoul of a presidential records law, two former Trump administration officials recalled.

Trump didn’t care.

“There was one time [in the middle of the presidency when] I told him he should consider cooling it with the shredding,” one of the former Trump lieutenants told The Daily Beast. “The president said, like, ‘Yeah, okay,’ and then he moved on.”

“It took less than a week for me to see him doing the exact same thing to several different documents,” the ex-official added.

None of this should come as a surprise. In the final weeks of the Trump presidency, two different associations of professional historians sued the federal government to ensure that these records wouldn’t disappear. While that lawsuit didn’t accomplish much, it did result in having a Justice Department lawyer make a curious remark in open court that might come back to haunt Trump and his associates.

Trump Loses: Jan. 6 Committee Can Get White House Records

On Wednesday, The Washington Post reported that the National Archives had taken the step of asking the Department of Justice to “examine Donald Trump’s handling of White House records, sparking discussions among federal law enforcement officials about whether they should investigate the former president for a possible crime.” The same day, The New York Times added another layer to the story, reporting that the Archives had “discovered what it believed was classified information” in a tranche of papers that Trump had unceremoniously removed from the White House and, until recently, had kept in his private collection.

And yet, on Dec. 7, 2020, in the tumultuous closing months of the Trump era, DOJ attorney Elizabeth Shapiro argued that a federal judge shouldn’t bother issuing a temporary restraining order to secure documents because White House officials had already been told to keep documents intact.

“Preservation instructions were already conveyed to the White House,” she said, according to a court transcript. “Every litigant is under a duty to preserve records. We’ve already done that. And there’s absolutely no need for a preservation order because we have complied with our litigation obligations… there was no need to bring a motion, particularly an emergency motion, because preservation measures are in place.”

Two entities that were involved in that lawsuit—the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) and the transparency fighters at the National Security Archive—are now calling for the Justice Department to investigate this as a criminal matter.

“President Trump was put on notice that this conduct violated the law in multiple ways and on multiple occasions, yet he persisted in destroying and mutilating presidential records of enormous historical value,” they wrote in a letter to the DOJ and FBI on Tuesday.

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These calls would normally amount to little more than a press release. And given the early indications from the DOJ, prosecutors are unlikely to be pursuing charges. But if they did, the punishment accompanying prosecution could be historically significant: Anyone who violates that law is “disqualified from holding any office under the United States.”

It’s a powerful hammer that was used to convict Rear Admiral John Poindexter and Lt. Colonel Oliver North for the Iran-Contra affair in the 1980s. And while criminal charges against Trump may seem far-fetched, Trump critics say this could be used to crush Trump’s dream of returning to the White House in 2025.

"This is almost like low-hanging fruit, and it’s kind of perplexing the Justice Department doesn’t appear to be looking at this. We’ve been sounding the alarm on this for years,” said Nikhel Sus, a senior attorney at CREW. “If you’re sending the message to government officials we don’t take records laws seriously, what incentive do they have to comply with them? It’s encouraging noncompliance.”

A Trump spokesman did not respond to questions on this story.

Part of the reason Joe Biden’s DOJ probably won’t seek charges for Trump destroying documents is likely because of the punishment.

Barring Trump from seeking office would almost certainly be seen as an overtly political, banana-republic-like response. Biden would instantly incur the wrath of the GOP and set up future one-term presidents to face the same fate. In short, the punishment is too severe to be useful.

But conversely, the other law that Trump has likely violated—the Presidential Records Act—is too weak.

The Presidential Records Act, a Nixon-era law that was supposed to be the ultimate barrier protecting White House records, lacks any real bite.

That’s not just the opinion of political commentators. The nation’s two living former national archivists believe the Presidential Records Act has no teeth.

National Archives Asks Feds to Probe Trump’s Record Handling, Report Says

Don W. Wilson, who oversaw the records agency as Presidents Ronald Reagan and George H. W. Bush left the White House, condemned Trump’s document-destruction policy and lamented that the nation may never have a true, complete account of the 45th president.

“I think this is a flagrant abuse,” Wilson told The Daily Beast. “There need to be some consequences to the presidential records act… I think it’s wrong. I think it needs to have teeth.”

Congress passed the 1978 Presidential Records Act in direct response to disgraced President Richard Nixon’s refusal to turn over White House records to the National Archives. The six American presidents that followed largely complied, turning over paper and electronic records that now reside at presidential libraries staffed by trained federal archivists. But the law, as written, assumes presidents would want to preserve their legacy—not hide it, attorneys and transparency advocates said.

“This law was designed to rein in a corrupt president like Nixon. But it still entrusts the president alone with compliance of the law,” said Sus, the senior attorney at CREW. “Laws really need to have consequences to have an impact, because otherwise, if it’s just based on norms, it’s not going to cut it if you’re going to have somebody like Trump come in.”

National Archives Received Fake State Documents Declaring Trump Win in 2020, Report Says

Lauren Harper, the National Security Archive’s public policy director, said efforts are now underway to convince Congress of the need to update the Presidential Records Act.

“It’s a gentleman’s agreement. Therein lies the problem. This underscores the inadequacy of the PRA,” she said. “This is just a clarion call that the PRA continues to need to be strengthened.”

John W. Carlin, who led the National Archives for a decade and oversaw the departure of President Bill Clinton, was noticeably upset when asked about Trump’s behavior. He likened it to the stupidity of a comedic bank robbery movie, but his tone turned dead serious when he discussed the threat of document destruction to the nation’s ability to hold a president accountable.

“At every opportunity that I have, which is limited—I’m in my eighties—I’m going to speak out. The National Archives needs more authority… to check to see if things are being done right, and have the authority to go to congress and report. They have nothing now. They can’t get in the White House unless they’re welcome. There needs to be some kind of access, some kind of assurance the records were created, kept, and are on their way to the National Archives.”

Both archivists who spoke to The Daily Beast stressed the importance of maintaining a full account of a president’s time in office for two reasons: holding officials accountable now and retaining the nation’s history for the distant future. They noted that most presidents took their documents with them on the way out, leaving a pretty significant black hole behind them.

“You wonder why [Presidents Millard] Fillmore, [Franklin] Pierce, [and James] Buchanan were rated so low and lousy presidents. All you had left was newspaper accounts. [John] Tyler’s papers were destroyed in the Civil War. And you lost a lot of papers and records from all the 19th-century presidents,” Wilson said.

Carlin wondered aloud why Trump’s White House lawyers allowed records to be burned, torn up or moved—a question he said needs to be answered. And he called for a greater public understanding of the law “so you don’t have a president just carte blanche destroying records or moving them off to a private home.”

“Government cannot be held accountable without records,” he said.

Read more at The Daily Beast.

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