Defenders of Donald Trump as well as those worried about FBI overreach have been fuming over the Aug. 8 raid by federal agents of the former president’s Florida home.
What the agents did was unprecedented.
But what Trump did might have been unprecedented as well.
The former president is accused of departing from the White House with documents that belonged to the government, not him, and that a significant portion of these documents included highly sensitive information. In addition, when confronted about this potential violation of federal law, the former president was less than cooperative about returning them, much less acknowledging that he made a mistake.
Instead, Trump has tried to make the argument that the top-secret documents in his stash were really not top-secret anymore because he had declassified them — apparently unbeknownst to anyone but himself.
If there was any declassification, Trump has failed so far to provide any record of doing so. Chances are he won’t be able to either. That’s because, like so many times when Trump is caught in a lie or a misdeed, he makes it up as he goes.
Most of the time, the courts call his hand. They’re likely to do so this time as well.
A 1978 law, the Presidential Records Act, makes it clear that presidential records are owned by the public and are not a president’s personal property. They are supposed to be transferred to the National Archives as soon as a president leaves office. In addition, the law spells out that a president cannot destroy records as inconsequential without either the approval of the head of the National Archives or without giving 60 days’ advanced notice to Congress, in case it wished to block such destruction.
There have been reports that Trump flouted this law while in office, and it’s obvious he did so upon departing as well.
The last time we had a president who created such a crisis over presidential records was Richard Nixon. When it became known that Nixon, who had resigned in disgrace in 1974 over the Watergate scandal, was going to destroy records of his troubled tenure, Congress acted quickly to prevent him. Four years later, it passed the Presidential Records Act, which has governed the handling of presidential records ever since.
Why Trump took a trove of records to Mar-a-Lago is uncertain. Those who dislike the former president wonder whether he had dishonorable intentions, including the possibility of trying to make money off their sale to collectors or even foreign governments. Those more charitable toward Trump say he probably just thought of them as souvenirs, like the memorabilia he had accumulated during his life as a developer and TV celebrity.
John Bolton, a former Trump national security adviser who had a mercurial relationship with his boss, said this of Trump: “Some days he liked to collect french fries. Some days he liked to collect documents. He just collected things.”
Did that penchant require the FBI to use a heavy hand get the records back? It depends on what precisely Trump had. Once that’s known, if it ever is, that will answer who went too far, Trump or the FBI.
