Sending Trump away for ripping up documents would be like sending Al Capone away for tax evasion.
But there are a lottttt of Republicans in Washington, and many Republican 2024 hopefuls, who are reading this today and crossing their fingers.
For the last few days, WaPo has been reporting on Trump’s curious practices for handling presidential records. Those records are public property under the federal Presidential Records Act. As a matter of accountability, the people have a right to know what their commanders-in-chief were up to while in office. That means all written communications related to official duties get turned over to the National Archives upon leaving office to preserve a historical record. The president doesn’t get to take stuff with him when he departs, and he certainly doesn’t get to destroy records.
Trump took stuff with him. And he destroyed records. So routinely, in fact, that White House aides were tasked with reassembling papers he’d torn up by hand and taping them back together for preservation. His habit of ripping up documents once he’s done with them long pre-dates his time in the White House and was noticed by the media as early as 2018. But it was back in the news lately after some taped-up documents landed before the January 6 committee. Which got WaPo to thinking: How many destroyed and hopefully reconstructed documents from the Trump era is the National Archives saddled with?
Four days ago they published the answer. The volume is “unprecedented.”
Interviews with 11 former Trump staffers, associates and others familiar with the habit reveal that Trump’s shredding of paper was far more widespread and indiscriminate than previously known and — despite multiple admonishments — extended throughout his presidency, resulting in special practices to deal with the torn fragments…
One senior Trump White House official said he and other White House staffers frequently put documents into “burn bags” to be destroyed, rather than preserving them, and would decide themselves what should be saved and what should be burned. When the Jan. 6 committee asked for certain documents related to Trump’s efforts to pressure Vice President Mike Pence, for example, some of them no longer existed in this person’s files because they had already been shredded, said someone familiar with the request…
The habit dates back to the former president’s time as a businessman, when he used email extremely rarely. [Michael] Cohen said that Trump seemed to enjoy the actual process of ripping paper, especially if he did not like the contents of the memo.
Omarosa once claimed that she saw Trump eat a note in order to dispose of it. But that’s not all: Not only did Trump routinely tear up documents in his possession, he also carted some away to Mar-a-Lago after moving back there in January. WaPo followed up two days ago with news that the National Archives had removed 15 boxes of records recently from the premises, including the “love letters” Trump got from Kim Jong Un. Two Trump advisors told the paper that that was a simple oversight, that Trump’s things were packed hastily after January 6 because he hadn’t resigned himself to leaving office until the final weeks of his term.
But that doesn’t explain why the records weren’t returned to the Archives more promptly after he had settled in at Mar-a-Lago. One source called it “out of the ordinary. … NARA has never had that kind of volume transfer after the fact like this.” A lawyer who worked in the Obama White House said, “Things that are national security sensitive or very clearly government documents should have been a part of a first sweep — so the fact that it’s been this long doesn’t reflect well on [Trump].” How did important foreign policy documents like the letters from Kim Jong Un end up in boxes of documents Trump thought he could take with him, unless he wanted them for keepsakes or to display at his club?
As is often the case with him, it’s hard to separate premeditated bad behavior from his basic autocratic instincts towards unaccountability. After all, this is a guy who held the 2020 Republican National Convention at the White House, an unusually gross violation of the spirit of the Hatch Act if not the letter. It’s entirely possible, if not likely, that he destroyed some documents deliberately for fear that they would reflect badly on him. But it’s also possible, if not likely, that he tore some up reflexively, because his default approach in all matters is to leave as little of a paper trail as possible. If he’s ripping up records out of force of habit, is that really a criminal act?
What if he was told — repeatedly, many times — by his aides and White House lawyers that his habit could get him into trouble and that he should stop? There’s no question that Trump was alerted to the fact at some point during his presidency that he had a duty not to destroy documents. The most charitable interpretation of his behavior afterward is that he just couldn’t resist the compulsion and trusted that his lackeys would “preserve” the records by taping them back together afterward as an extra chore for them to do.
According to WaPo’s latest report published this afternoon, the National Archives has asked the Justice Department to look into the matter. That doesn’t mean the DOJ will; it’s just a request. And even if they do, it’s unclear what sort of penalty Trump would pay for violating the Presidential Records Act. There’s no enforcement provision. It’s essentially a codified gentleman’s agreement between the Archives and the former president, so, uh … yeah.
But. Here’s an interesting provision of federal law that’s gotten some attention this week. 18 U.S.C. 2071: Concealment, removal, or mutilation generally.
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.
There are precious few ways to be disqualified from holding office in the U.S. One is by being impeached and convicted; another is by being found guilty of “insurrection” under Section 3 of the Fourteenth Amendment. Trump has had near-misses on both. If he’s charged and convicted under Section 2071, is that checkmate?
My guess is … no. Presumably the courts would find that a statutory provision like 2071 essentially imposes a new qualification for federal office, which can only be done lawfully via an amendment to the Constitution itself. And even if I’m wrong, given the political stakes in prosecuting a former president from the other party, I assume that the DOJ would only charge him if it had an airtight case that Trump had destroyed documents specifically to try to cover up corruption, not out of mindless force of habit. But Republicans like Mitch McConnell and Ron DeSantis can dream. Your move, Merrick Garland.
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