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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: The Law behind the Trump Presidential Records Investigation

By Donald Scarinci, September 05 2022 3:00 pm

Since the day the FBI searched Mar-a-Lago, talking heads have consumed hundreds of hours of cable news time speculating about it and spinning it.  Few of those hours have explained the legal reasoning behind the search warrant.  

Presidential Records Act Requires Records Be Transferred to National Archives

The federal investigation centers on documents Trump removed from the White House when he left office and transported to Mar-a-Lago. Prior to 1978, presidential records were considered the personal property of outgoing presidents. 

The Presidential Records Act (PRA), enacted in response to the Watergate scandal, specifies that the records belong to the United States of America, not to the person who held the office. The Archivist of the United States is required to take custody of these records at the conclusion of each administration and to maintain them in a federal depository.

According to the National Archives and Records Administration (NARA), the Trump Administration transferred documents to Mar-a-Lago rather than to the National Archives. In January, officials recovered 15 boxes of documents from the Trump property in Florida. 

A letter from the Archivist to the House Oversight Committee states “NARA has identified items marked as classified national security information” in the documents recovered. As a result, “NARA staff has been in communication with the Department of Justice.” The DOJ then asked the FBI to review the documents for evidence of criminal wrongdoing. 

FBI Launches Investigation into Handling of Classified Documents

The FBI opened a criminal investigation. As outlined in a heavily redacted affidavit filed in support of the search warrant, the purpose of the investigation is to determine how the documents with classification markings and other records were removed from the White House and came to be stored at Mar-a-Lago.

Other purposes include determining whether the storage location(s) at Mar-a-Lago were authorized locations for the storage of classified information; whether any additional classified documents or records may have been stored in an unauthorized location at Mar-a-Lago or another unknown location and whether they remain at any such location. Furthermore, the FBI needs to identify any person(s) who may have removed or retained classified information without authorization and/or in an unauthorized space. 

When conducting an investigation, FBI agents often need to obtain documents from suspects as well as innocent parties. Agents can apply for a search warrant from a magistrate (or judge) to search a particular site for relevant evidence, or the agents can request a subpoena from a grand jury. 

A grand jury is an impartial body of citizens drawn from the community which is tasked with investigating whether a crime has been committed and by whom. In order to make that determination, a grand jury may issue subpoenas to whoever may have evidence relevant to the grand jury’s investigation.

In this case, the FBI first obtained a grand jury subpoena seeking any additional documents “bearing classification markings” that were being stored at Mar-a-Lago. Trump complied with the subpoena and provided responsive documents, according to court documents.

Search Warrant to Records Stored at Mar-a-Lago

On August 5, 2022, U.S. Magistrate Judge Bruce Reinhart approved a search warrant. To obtain a search warrant, the FBI needed to demonstrate that there is probable cause of a crime, and that the evidence of that crime will be in the location to be searched. In many cases, investigators rely on a search warrant when they believe that they will not obtain full compliance via a subpoena.

Given the sensitivity of investigating a former president, it is likely that the FBI was required to provide significant evidence that a crime has been committed. According to the affidavit filed in support of the search warrant, the FBI had “probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at Mar-a-Lago. The affidavit further stated: “There is also probable cause to believe that evidence of obstruction will be found at Mar-a-Lago.” 

The search warrant was initially sealed, which is customary in a pending investigation. However, the DOJ asked the court to unseal parts of it, citing that the public had a vested interest in the investigation. The search warrant suggested that Trump is under investigation for potentially violating the following three criminal codes:

  • Section 2071 of Title 18 of the U.S. Code, which relates to someone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys” a government record.
  • Section 1519 of Title 18, which relates to someone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
  • Section 793 of Title 18, which is part of the Espionage Act and deals with “gathering, transmitting or losing defense information.”

What’s Next?

Investigating a former President is undeniably different than investigating an average citizen, particularly when the opposing political party runs the DOJ. Nevertheless, the legal standards are no different, and every American suspected of a crime is subject to the same laws. 

It is unclear how this investigation will end. The Presidential Records Act does not contain an enforcement mechanism. The crime of gathering, transmitting or losing defense information under the Espionage Act can result in a fine, imprisonment for not more than ten years, or both. 

Under Section 1519 of Title 18, which governs the concealment and destruction of government records, an individual convicted of violating the law faces a fine or up to three years in prison, or both. That law further provides that a convicted individual “shall forfeit his office and be disqualified from holding any office under the United States.” However, it is unclear whether the law would apply to the Office of the President, the eligibility for which is set forth in the U.S. Constitution.

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