While in office, the president holds the keys to classification policy. Classification procedures are born out of executive order – and haven’t changed dramatically over the years. But when a president has to pack up and leave office, the authority they carry gets trumped by other policies – including procedures for the Presidential Records Act. Donald Trump is now taking heat for taking at least a few classified documents, including some labeled Top Secret, back to his Mar-a-Lago residence, according to anonymous sources and as reported in the Washington Post.
This week 15 boxes of documents were seized from the former president’s residence. The Washington Post reports that the National Archives have asked the Department of Justice to look into the documents and see if they were handled properly. Trump has already come out against claims that he mishandled classified documents, or that the documents taken from his residence were seized.
“The media’s characterization of my relationship with NARA is Fake News. It was exactly the opposite! It was a great honor to work with NARA to help formally preserve the Trump Legacy,” Trump countered.
What is the Presidential Records Act?
The Presidential Records Act establishes public ownership of official records of the president and vice president, beginning in 1981 with the Reagan Administration. Previously, presidential documents could be considered private records, but the PRA makes them public records governed by the NARA.
While the PRA establishes procedures for record keeping, it doesn’t carry clear penalties for failing to adhere to the act itself, and it’s unclear what – if any – consequences Trump could face if he improperly took, or even destroyed documents.
It’s also unlikely Trump would face prosecution for holding classified documents – unless the Justice Department could prove the documents remained classified, the president knew they were classified, and he willfully took them. Per the president’s executive authority over classification, he would technically have the authority to declassify documents at any time. The action would need to be taken in writing (not tweeting), but could be as simple as crossing off the classification markings.
The House Oversight Committee is looking into allegations that Trump didn’t adhere to PRA. Carolyn Maloney, chairman of the committee, said in a statement she was “deeply concerned that these records were not provided to the National Archives and Records Administration promptly at the end of the Trump administration and they appear to have been removed from the White House.”