The National Archives owns the documents recovered from Mar-a-Lago — not Trump

Former President Donald Trump never liked leaving a paper trail. He’s reportedly had a habit of ripping up papers when he was finished with them since his days as a simple real estate mogul slash con man.

It’s a tic that lasted throughout his presidency, despite being in clear violation of federal law. Those documents that Trump mangled, tore and otherwise destroyed are now more important than ever. But we may never know their true number — or contents.

Those documents that Trump mangled, tore and otherwise destroyed are now more important than ever.

Trump’s penchant for wanton destruction of government property was first reported in 2018. At the time, it was just another thing to add to the towering pile of “what the hell is even happening” that Trump generated almost daily. But then the House Jan. 6 committee subpoenaed White House records, a request Trump fought up to the Supreme Court. When those documents were eventually handed over to Congress, though, it turns out several of them had been “ripped up and then taped back together,” as The Washington Post reported.

Congress passed the Presidential Records Act in 1978 to make what was once an emergency measure to prevent former President Richard Nixon from destroying possible evidence into a permanent practice. Since then, presidents (and vice presidents) have had to relinquish control of official documents created while serving in the White House to the National Archives and Records Administration. Those documents are kept out of sight for five years — up to 12 for certain documents — but can be accessed via Freedom of Information Act requests afterward.

There have been frequent small-scale violations in every administration since then — but, as with most things regarding presidential rule-breaking, Trump took it to a whole other level. The Washington Post found last week that Trump never stopped being an absolute menace to the poor staffers trying to keep their boss from breaking the law:

Typically, the White House records office makes decisions on archival vs. non-archival materials, according to an Archives official. The Presidential Records Act lays out a process allowing a president to dispose of records only after obtaining the assent of records officials.

It is unclear how many records were lost or permanently destroyed through Trump’s ripping routine, as well as what consequences, if any, he might face. Hundreds of documents, if not more, were likely torn up, those familiar with the practice say.

Adding to the absurdity, The Washington Post reported Monday that the National Archives recovered more documents from Mar-a-Lago last month, including “correspondence with North Korean leader Kim Jong Un, which Trump once described as ‘love letters,’ as well as a letter left for his successor by President Barack Obama.”

NARA confirmed in an emailed statement Monday that it had collected 15 boxes of records that “should have been transferred to NARA from the White House at the end of the Trump Administration in January 2021.” How many more boxes might be floating around out there? Well, that’s unclear — even to Trump’s own team, apparently. “Former President Trump’s representatives have informed NARA that they are continuing to search for additional Presidential records that belong to the National Archives,” the National Archives said in its statement.

In a more sensical world, there might be some kind of consequence for this blatant disregard for the law. But the Presidential Records Act as written has no enforcement mechanism, leaving no option of criminal charges. And it’s not like the National Archives has a team of document hunters it can deploy to track down wayward memos. (Though that would make for a great Netflix series.)

It’s not like the National Archives has a team of document hunters it can deploy to track down wayward memos.

That doesn’t mean it’s not a crime to destroy records that belong to the federal government. The Justice Department’s Criminal Resource Manual notes there is a “broad prohibition against destruction of government records or attempts to destroy such records” under 18 U.S. Code § 2071. Violation of this clause can lead to a fine or jail time; if carried out by a person “having the custody” of the thing that’s taken or destroyed, they “shall forfeit his office and be disqualified from holding any office under the United States.”

Based on Trump’s refusal to listen to legal advice on the matter and his willful disregard for the law, that sounds to me like a pretty solid case against him. If so, that would potentially be a way to achieve what his second impeachment trial failed to do last year: bar Trump from running from office again.

Unfortunately, it’s likely not that simple. If federal prosecutors were to go after him for this specifically, they’d be challenged to prove that this isn’t targeting him with a charge they wouldn’t bring against anyone else. Given the number of people who purposefully or accidentally walk off or mishandle federal records, and the lack of prosecutions over it, that feels unlikely.

In this case, too, Trump’s wantonness is actually an asset for him: There’s no evidence so far that he was strategic about what he was destroying. If it seemed that he was only getting rid of certain documents, purposefully getting rid of potential evidence of crimes, there’d be a stronger case for obstruction of justice. That may be something the Jan. 6 committee uncovers in its investigation, but it’s hard to say from the outside.

What I can say, though, is that Trump has engaged in an obstruction of history. The documents he so casually quartered and left on the Oval Office floor weren’t his to destroy. In doing so, he’s made his administration even more opaque to future Americans who have every right to know what their government did in their names. It’s a crime that Trump has already gotten away with and one whose impact won’t be able to be fully measured for years to come.