by Harry Litman
The last two weeks have produced a torrent of evidence of then-President Donald Trump’s brazen and systematic violations of the Presidential Records Act. Between his habitual, illegal destruction of documents, and his shepherding out of the White House, and down to Mar-a-Lago, at least 15 boxes of public records — some marked “Top secret” — Trump’s serial violations of the act demonstrate yet again his attitude that laws just don’t apply to him.
The Department of Justice has a clean, solid case it could bring against Trump. Moreover, the case would be, in prosecutor’s lingo, righteous. Preserving presidential records may sound like no more than a bureaucratic rule, but it is crucial to democratic self-governance. It makes the people the stewards of their own history and ensures presidential accountability. Trump aimed to foil the public’s ability — and history’s — to know and judge his conduct in the White House.
All that said, don’t hold your breath expecting a Presidential Records Act prosecution to be the breakthrough that finally brings Trump to justice.
The Presidential Records Act was part of the spate of reforms passed in the wake of Watergate. Its core command is that the president’s papers belong to the public, and to history, not to the temporary officeholder. The White House must preserve the papers, and at the end of the president’s tenure turn them over to the National Archives and Records Administration.
The act does not include an enforcement mechanism. However, a law dating from the 19th century provides criminal penalties (up to three years in prison) for the willful mutilation, obliteration or destruction of public records. That supplies the necessary muscle to enforce the Presidential Records Act.
At the same time, the willful mutilation law has a very high intent requirement. To be found guilty, a defendant not only must intentionally destroy public records, he or she must do it to achieve the purpose the law was enacted to prevent. That’s what makes it willful.
Trump’s conduct would seem to have no problem hitting that mark. According to Maggie Haberman’s forthcoming book “Confidence Man: The Making of Donald Trump and the Breaking of America,” a White House toilet was occasionally found to be clogged with wads of paper — if the president flushed documents, as some believe, it was hardly an unintentional act. Trump also made a routine practice of tearing up records after being twice warned he was breaking the law.
It could only help prosecutors that Trump’s conduct was witnessed by ordinary folks in the White House, not just insider loyalists. Those ordinary witnesses — for example, the person who had to put on rubber gloves and fish paper out of the toilet — aren’t likely to stonewall when it comes to testifying about what transpired.
Then there is the powerful proof made public by the Jan. 6 committee’s request for Trump-era documents that did make it into the National Archives — some had been ripped up by Trump and then taped back together by his aides to comply with the Presidential Records Act.
Add to all this the probable testimony of one of the chiefs of staff who tried unsuccessfully to get Trump to hew to the law, and the evidence looks overwhelming.
It also looks like it could help solve the ongoing threat Trump represents to our democracy. The 19th century willful mutilation statute provides that those convicted under it will be “disqualified from holding any office under the United States.” Unfortunately in this instance, the Supreme Court held in a 1969 case involving Rep. Adam Clayton Powell Jr., D-N.Y., that Congress cannot add to the qualifications for office set out in the Constitution.
Still, the Department of Justice is left with a strong case based on the Presidential Records Act, with straightforward and even overwhelming proof of official misconduct. Were the case against almost anyone other than Trump, the DOJ would probably be jumping in with both feet.
Instead, it likely will stay on the sidelines.
For the Justice Department of a sitting president to criminally charge a former president would be a momentous act, and only more so in our politically divided times. However flagrant Trump’s misconduct with regard to the records of his presidency, I would expect Attorney General Merrick Garland to conclude that the offenses are not grave enough to set off the social conflagration that a United States v. Trump case would ignite.
So it is that Trump remains, for now, arguably both the most lawless and most undeservedly lucky man ever to inhabit the presidency.
