Donald Trump’s risk of mishandling White House documents

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Some were quick to speculate yes, although it’s not clear if a former president could be indicted by the Justice Department for misappropriating documents, even classified information.

A former Trump aide said it was very likely there would never be a criminal case, but added, “If I were Trump, I would take it seriously.”

There are clear laws that protect federal records – with varying degrees of likelihood of application.

Can Trump keep or destroy government records after leaving the White House?

The Presidential Records Act of 1978 specifies how official records should be kept during a presidency and turned over at the end of a term.

Based on reporting from CNN and others, it appears some of the law’s requirements may not have been followed during the Trump presidency. Instead, official White House records were torn apart or flushed down toilets, and at least 15 boxes of records ended up in Mar-a-Lago. Some of the documents recovered from Mar-a-Lago in recent months contained records the National Archives believed were classified, according to the New York Times.
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Legal experts tell CNN that any unauthorized preservation or destruction of White House documents poses a red flag under a criminal statute that prohibits the removal or destruction of official government records.

But for such an indictment to be brought, prosecutors would need to show that Trump “willfully” broke the law — a high bar that prosecutors could potentially set, given the White House‘s frequent attempts to steal records on Trump to preserve would usually garble.

Additionally, other criminal laws could also come into play as a Justice Department investigation progresses.

“If the intent was, ‘Let me get these documents out of the way because they might look bad, they might be devastating to me in an investigation, in a trial,’ then you’re talking about a possible obstruction of justice. The devil is in here Detail,” said CNN legal analyst Elie Honig.

Are there other laws with teeth?

Could be.

A criminal law prohibits the destruction of state property – if the accused has intentionally broken the law.

As a former United States officer, Trump remains committed to protecting classified information he received as President.

During his tenure, he had the opportunity to break secrecy and make his own decisions. But that power ended when he left the presidency, and it’s unclear if he released any records kept at Mar-a-Lago while he was still in office.

“If classified documents are intentionally and knowingly destroyed, that is a federal crime,” Honig said on CNN on Thursday.

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A national security adviser to President Bill Clinton, Sandy Berger, was prosecuted for removing classified documents from the national archives by stuffing them down his pants during the 9/11 Commission investigation.

Even so, a case involving misuse of national security secrets can quickly become complicated. This is because there is no centralized system in the federal government to standardize what gets classified, and different agencies may have different views and make decisions about classification.

An investigation by the Department of Justice would likely examine statements by various agencies in the records. Trump’s defense would be that he is president and governs them all, according to a legal expert who has previously dealt with rank issues in government.

What would Trump have to do to release documents?

This issue surfaced in court during Trump’s presidency, when news organizations tracked classified records related to the Russia probe after the White House or Trump publicly discussed declassifying them.

In one of the cases, Justice Department official Brad Weinsheimer said there had been no order to release the Carter Page Foreign Intelligence Surveillance Act motions, which were the coveted documents, even after official statements suggested they might be released .

In another case, then-White House Chief of Staff Mark Meadows said Trump’s tweets about the release of documents were not “self-executing release orders,” but that decision-making rests with a federal agency under Trump, according to a court filing.

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Brad Moss, an attorney who unsuccessfully petitioned the court to have the Page FISA warrant released, said the president releasing information requires his written decision. That could be as simple as crossing out the “classified” marks at the top of pages or as formal as filing documents with the White House office, Moss said.

The unanswered questions about secret documents in Mar-a-Lago, says Moss, are: “Did he know about it? When did he decide to put those documents there?

Could the Presidential Records Act Charge?

No.

The law has no criminal enforcement mechanism, so the law is “toothless,” said George Clarke, a Washington-based attorney who has filed two lawsuits in recent years over Trump White House retention practices.

In his lawsuits, jointly filed by Washington state watchdog group Citizens for Responsibility and Ethics, Historians and archivists have complained that records and translations of Trump meetings with foreign powers, including Russian President Vladimir Putin, did not exist or were not preserved, and that White House staffers used encrypted messaging systems for official business. But the courts dismissed the cases, noting that the judges had no authority to run the presidency on a small scale.

“It’s so frustrating,” Clarke said, looking back at his lamentations. “All the cases we have brought have pointed out how poor the records were and the number of times they have breached them. The dishes did not bite.”

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