How Trump may have violated the Presidential Records Act

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• Judy Woodruff:

  There are more headlines today about former President Donald Trump and his potential mishandling of White House records, including questions about whether the former president broke federal law.

  Chief Washington correspondent Geoff Bennett has more.

• Geoff Bennett:

  Judy, a source familiar with the matter tells me the National Archives has asked the Justice Department to review former President Trump's handling of White House records, as The Washington Post was first to report.

  Now, officials at the Archives believe Trump may have violated the Presidential Records Act. And that request followed news that officials recovered 15 boxes of documents from Trump's Mar-a-Lago residence, materials that should have been handed over to the government when he left office.

  According to The Washington Post, the documents included letters from North Korean leader Kim Jong-un, the note Barack Obama left for Trump in the Oval Office on the day of his inauguration, and a map of the projected path of Hurricane Dorian in 2019, infamously altered by Donald Trump with a black sharpie.

  And news first reported by The New York Times adding another level of concern, that the National Archives discovered what it believed was classified information in documents Trump had taken with him from the White House as he left office.

  Add to all of that, new reporting from The New York Times' Maggie Haberman that, when President Trump was in office, staff in the White House residence periodically discovered wads of printed paper clogging a toilet and believed the president had flushed pieces of paper.

  The former president released a statement today, calling it a fake story. And it's not clear what the DOJ will do, if anything, to investigate.

  For more, let's bring in Chuck Rosenberg, a former United States attorney and senior FBI official.

  Chuck, it's great to have you with us.

  And a DOJ referral, as I understand it, doesn't necessarily mean that there will be an investigation. And you handled such cases as a federal prosecutor. Do you see a compelling case here or not?

• Chuck Rosenberg, Former U.S. Attorney:

  Well, that's a great question.

  First, Geoff, you're exactly right. Other agencies of government can make referrals to the Department of Justice, but it's up to the Department of Justice, exclusively, whether or not it investigates and prosecutes. So, if the National Archives or any other agency believes a violation of the law was committed, they ought to make a referral. And then the Justice Department will decide.

  Has there been a violation of the law, of the criminal law? That's a hard question. Let's take it one at a time. With respect to the Presidential Records Act, that law doesn't have a criminal provision. It doesn't even have an enforcement mechanism. But it requires a president to preserve their records, not for the president, but for archivists and for historians, for all of us, for citizens. Those records belong to us, not to the president.

  And it seems like President Trump — and this doesn't really come as a shock — didn't fully abide that requirement.

• Geoff Bennett:

  What about the potential classified information?

  Putting aside the apparent hypocrisy that Donald Trump ran against Hillary Clinton on the issue of mishandling classified information, if officials found that documents did in fact contain classified material, would that make a significant difference?

• Chuck Rosenberg:

  It might, but here's why I don't think it will in the end make a difference, Geoff.

  The president of the United States, any president, is the primary consumer of intelligence information. He is the ultimate customer. He also has the authority to classify and declassify documents. So, even if documents were found that are classified, it would be very difficult, exceedingly difficult, for a federal prosecutor to prove that Mr. Trump or any other president didn't just wave their hand over the documents and say, I now declassify you.

  In order to prove a criminal case of mishandling or retaining classified information, you would also have to essentially prove a negative, that that didn't happen, that the documents were properly classified, and that President Trump took the documents in a classified condition, he mishandled them, and retained them.

  That's a very difficult criminal case, given that the president has ultimate classification and declassification authority.

• Geoff Bennett:

  This isn't the first time the former president's handling of official records has come under scrutiny. Politico reported some four years ago that Trump was ripping up documents and that White House aides were saving them and taping them back together like jigsaw puzzles.

  Fast-forward to today, and the January 6 Committee is confirming it received documents from the Trump White House by way of the National Archives that had, in fact, been taped back together.

  So I guess the question is, when does this cross the line from being cavalier to being criminal? And what's the point of having laws like the Presidential Records Act or the Hatch Act, which were routinely flouted during the Trump years, if there are no apparent consequences?

• Chuck Rosenberg:

  With respect to the Presidential Records Act, again, even though it has no enforcement mechanism, a president takes an oath of office at the beginning of his term to faithfully execute the laws of the land.

  That includes provisions, laws, statutes with enforcement mechanisms and without. That includes civil laws and criminal laws. And so maybe it only matters to me, but it matters a lot that, by failing to abide the Presidential Records Act to preserve documents, to turn them over, to not tear them up, or perhaps flush them down a toilet, then you are not abiding by the Presidential Records Act or your oath to faithfully execute the laws.

  That said, there is yet another statute that could make it a crime to destroy documents. Let's put aside the classified documents for a moment. Let's put aside the Presidential Records Act for a moment.

  There is a federal law that makes it a crime for a custodian of records, somebody who has ownership of the records, possession, custody, to destroy them or remove them. It's not clear to me that he automatically violated the statute when he tore up those records. A violation would be a felony, Geoff.

  But here's the problem. That statute, found in Title 18 of the United States Code, requires that the person who violated it acted intentionally. And that doesn't mean he intentionally tore the documents. That means that he tore the documents intentionally to violate the statute. It's not impossible to prove, but it's not as easy as it might appear at first blush to some people.

• Geoff Bennett:

  Chuck Rosenberg is a former U.S. attorney and former senior FBI official.

  Chuck, thanks so much for your insights.

• Chuck Rosenberg:

  My pleasure, Geoff.