Six months after the FBI searched Trump’s Mar-a-Lago residence and seized 15 boxes of material, FBI agents were once again back at the home of the former president yesterday, The unannounced raid by the FBI and Department of Justice has prompted more critics and questions about the president’s possible retention of classified information – and also the necessity of federal agents coming to seize the documents from his home.
The Department of Justice currently has two ongoing investigations involving the former president – one involving the 2020 election and alleged attempts to overturn the results, and the other involving the improper handling of classified materials related to the Presidential Records Act. We previously discussed the difficulty in making any prosecutions involving the PRA, given the executive branch role in establishing classification policies and procedures and the unprecedented nature of prosecuting a former president for such a breach.
It’s unclear what information was taken as a result of yesterday’s search, but news outlets are reporting boxes of information (although not as much as the prior seizure), were removed.
CNN reports that in June DoJ counterintelligence officers visited Trump’s residence, met with his attorney’s, and viewed areas where presidential records were being stored. They allegedly advised Trump’s attorneys to further secure the area where the documents were stored, and a padlock was added, according to CNN.
Sourced reports are slim and speculation is high, but at a bare minimum maybe it looks like Mar-a-Lago could use a portable SCIF situation?
Section 2071 of Title 18 of the U.S. Code is having a moment in the spotlight, with many speculating that if classified documents are found and Trump was found to be retaining information he shouldn’t have, prosecution under Section 2017 could result in disqualification from holding a federal office.
Constitutional scholars have been quick to point out that those same prohibitions don’t exist in the Constitution, and would be unlikely to hold up even if a prosecution under Section 2071 occurred.
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.