It’s Clear Trump Violated the Presidential Records Act. So Now What?

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The New York Times reported yesterday that not only did former President Trump take some 15 boxes of presidential archives with him to Mar-a-Lago, but that some of the documents actually contained classified information. This discovery occurred last month when Trump returned the boxes. That prompted the National Archives to reach out to the Justice Department for guidance, which then instructed the National Archives to have its inspector general examine the matter.

Critics of the former president immediately pointed out that this seemed a straightforward violation of the Presidential Records Act, which generally requires that all documents from an administration be preserved and archived to create a historical record. In fact, based on Trump’s habitual destruction of records, historians have labeled him the worst offender of the Act since it was written 44 years ago. “Since Nixon, there is no example of a president just pretending the law doesn’t exist,” said presidential historian Robert David Johnson to the Washington Post.

Under Title 18, Section 2071 of the U.S. Code, anyone found guilty of willfully and unlawfully concealing, removing, mutilating, obliterating, destroying or attempting to do any such action against a record can be fined and imprisoned up to three years. And in addition to fines and possible imprisonment, anyone convicted of such crimes is disqualified for holding federal office in the future.

So could this be Trump’s Achilles heel? Could his blatant disregard for norms and rules finally catch up to him and keep him from becoming president again?

The answer likely will disappoint many. As an initial matter, the PRA is a very weak statute because it lacks any kind of clear enforcement mechanism. For example, there is no one designated to ensure that records are actually being turned over. It’s more like an honor system that presumes, admittedly naively, that presidents and their advisors are acting in good faith to preserve and hand over documents. No party is assigned by the PRA to guarantee compliance, and there’s no regular check-in point with the administration or the National Archives. 

“It almost has to be unenforceable,” historian Johnson explained. “There is no way you could have a system where an archivist spends his or her time, 24 hours a day, in the Oval Office and Cabinet rooms, picking up each document as it comes along.” So when parties have sued and asked the courts to step in, federal judges have been reluctant. They simply aren’t interested in trying to “micromanage the president’s day-to-day compliance,” as one judge put it while tossing out a suit under the PRA in 2020.

But what about now, when the evidence seems sky-high that Trump ignored the PRA repeatedly when he ripped up notes, sent records to “burn bags,” clogged White House toilets with flushed papers, and even allegedly ate notes after a meeting, all indications of his utter disdain for the law? If Hillary Clinton can be investigated by the FBI in the middle of a campaign merely for having a private email service (something members of Trump’s family did with impunity while serving as aides), and if that could lead to widespread calls to “lock her up,” why won’t the Justice Department step in to level charges against Trump under the PRA?

There is a bitter irony at work. It is precisely because former FBI Director James Comey improperly kept his finger on the scales during an election and likely cost Hillary Clinton the election in 2016 that Justice wants very badly to avoid any further perception of politicization, particularly when it comes to the prosecution of the de facto leader of a major political party. A charge under the PRA would be viewed by many of Trump’s supporters as a “technical” charge for which no other president was ever prosecuted, and they would be quick to point out that other presidents technically violated it as well without incident. (The Clintons, for example, had to return to the National Archives gifts they had received from foreign dignitaries after taking them from the White House on their departure, but they were not charged with any crime.)

Even if a PRA charge were “tacked on” to other charges—for obstruction of justice, incitement of insurrection, and election fraud, to name a few—it would add little by way of additional penalties. And the provision barring someone found guilty of violating the PRA from holding federal office likely isn’t enforceable against the president, at least under the reasoning in U.S. Term Limits v. Thornton. That Supreme Court case held Congress cannot impose qualifications for prospective members stricter than those specified in the Constitution. If Congress lacks the power to add qualifications to its own members’ eligibility, there’s an even stronger argument that it can’t do so by mere legislation for the president, where Article II and the 22nd Amendment have already specified those qualifications.

Trump’s violations of the PRA are best understood as part of multiple violations of other laws and rules—the Emoluments clause, Hatch Act violations, blatant conflicts of interest, outright self-dealing with his hotel properties—that are on their face illegal but, as we discovered, nearly impossible to enforce against a sitting president who isn’t prepared to even try to act in good faith or respect our institutions. The drafters of these laws never predicted a chaos agent as disruptive and damaging as Trump. Add to that a complicit GOP that refused to convict him on his first and second impeachment, and the takeaway for Trump is as just he claimed long ago: That he could shoot someone on Fifth Avenue and not lose voters. He certainly did not lose the support of his party after all these crimes and has never been held to account by them—a pattern that many now note led to his brazen efforts to overturn the election and a great deal of responsibility for the attack on the Capitol.

A bipartisan group of senators is now attempting to patch legal holes and remove the vulnerabilities in statutes such as the Election Count Act that were exposed by Trump in his plot to undo the results of the 2020 election. It is also clearly time to add teeth and enforcement mechanisms to other laws such as the PRA, now that we see how easily and brazenly they can be disregarded and flouted. Unfortunately, such efforts could wither in the face of Republican opposition in the Senate, particularly if it’s clear that Donald Trump will remain the face of the party in 2024.