The National Archives and Records Administration (NARA) has compelled Donald Trump to finally hand over a bunch of official government documents he decided were his personal property when he left office.
According to the Washington Post, last month NARA officials received boxes of stuff advisers to the ex-president insist he simply viewed as mementos, gifts, or personal correspondence, such as the letter Barack Obama left to his successor as president or correspondence with North Korean dictator Kim Jong-un. All of it was material that should have been handed over to NARA via the Presidential Records Act, which requires any records related to the official duties of the presidency to be tendered for preservation.
People familiar with the situation told the paper that Trump’s lawyers began debating what needed to be transferred to NARA in December and eventually agreed to give the agency the materials sometime in January.
“The only way that a president can really be held accountable long term is to preserve a record about who said what, who did what, what policies were encouraged or adopted, and that is such an important part of the long-term scope of accountability — beyond just elections and campaigns,” presidential historian Lindsay Chervinsky told the Post. She added non-disclosure of certain records related to national security could “pose a real concern if the next administration is flying blind without that information.”
It’s nowhere near uncommon for departing administrations to break the Presidential Records Act—the Post noted that all recent ones have had at least a few violations—but the sheer scale of Trump and his lackeys’ non-compliance is both unprecedented and entirely unsurprising. It’s long been reported that Trump had a habit of tearing up documents shortly after reading them, including some of the records requested by the House committee investigating the Jan. 6 riots at the Capitol (which had to be reassembled with tape). But a separate Post report last week emphasized how rife that behavior was in his White House, extending beyond Trump himself to many other staffers.
Eleven prior “Trump staffers, associates and others” told the Post that they had come up with systems to ensure the recovery of Trump-shredded papers, such as dispatching members of the Office of the Staff Secretary or Oval Office Operations to retrieve the scraps so they could be re-assembled by some poor suckers in the Office of Records Management. One senior Trump official said that they and other staff routinely chose what documents to put into “burn bags,” which contain classified or sensitive documents and the Pentagon incinerates to ensure total destruction. It’s not known how much material was destroyed by shredding or fire, other than that it’s a hell of a lot.
Trump also deleted tweets throughout his term in office, over the objections of lawyers who believed they needed to be preserved to comply with federal records laws. The use of encrypted chat and email apps that could allow administration staffers to hide material from preservation was also reportedly widespread in his White House.
“He didn’t want a record of anything,” a former senior administration official told the Post. “He never stopped ripping things up. Do you really think Trump is going to care about the records act? Come on.”
Trump, of course, is not going to face any consequences over this. Former House of Representatives legal counsel and University of Baltimore School of Law professor Charles Tiefer told the Post there is a “high bar” for prosecutors to go after records law violations, as NARA and the White House usually proceed by mutual agreement. From the Post, Trump has an automatic defense that his habit of destroying documents was impulsive rather than strategic:
“But if there is willful and unlawful intent” to violate the law then the picture changes, [Tiefer] said, with penalties of up to three years in jail for individuals who willfully conceal or destroy public records.
“You can’t prosecute for just tearing up papers,” he said of Trump. “You would have to show him being highly selective and have evidence that he wanted to behave unlawfully.”
That this is indistinguishable from a coverup is sort of beyond the point, given he will face absolutely no consequences from this and probably thinks it’s funny.
Update: 2/8/2022: In a statement released by the National Archives Public and Media Communications to Gizmodo via email, the NARA confirmed that it had arranged for 15 boxes of records to be transported from Mar-a-Lago and that Trump aides “informed NARA that they are continuing to search for additional Presidential records that belong to the National Archives.”
NARA further confirmed that it had received “paper records that had been torn up by former President Trump.” While White House records management officials “recovered and taped together some of the torn-up records,” other documents were delivered in a format “that had not been reconstructed by the White House.” All of these materials were required to be handed over to NARA in January 2021 under federal law, according to the agency.
“When a [Trump] representative informed NARA in December 2021 that they had located some records, NARA arranged for them to be securely transported to Washington,” the statement continued. “NARA officials did not visit or ‘raid’ the Mar-a-Lago property.”
Archivist of the United States David S. Ferriero wrote in the statement, ““The Presidential Records Act mandates that all Presidential records must be properly preserved by each Administration so that a complete set of Presidential records is transferred to the National Archives at the end of the Administration... NARA pursues the return of records whenever we learn that records have been improperly removed or have not been appropriately transferred to official accounts.”
“The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people,” Ferriero added. “Whether through the creation of adequate and proper documentation, sound records management practices, the preservation of records, or the timely transfer of them to the National Archives at the end of an Administration, there should be no question as to need for both diligence and vigilance. Records matter.”