Some of the documents seized in the FBI’s search of Mar-a-Lago may be covered by privilege — but all of them are the property of the government by law.
Some of the documents seized in the FBI’s search of Mar-a-Lago may be covered by privilege — but all of them are the property of the government by law.
A s with myriad other controversies ignited by Donald Trump’s norm-breaking and the irate norm-breaking with which it inspires his opponents to respond (while each side indignantly slams the other for, you know, breaking norms), the Mar-a-Lago don’t-you-dare-call-it-a-raid has reached peak farce.
First, it emerged over the weekend, as if it were stunning news, that some of the documents seized in the FBI’s search of Trump’s estate may have been covered by the attorney-client and executive privileges. Then, the former president issued a statement on his Truth Social platform claiming that the FBI “knowingly should not have taken” this “privileged material,” and “respectfully request[ing] that these documents be returned to the location from which they were taken.”
Okay, we need to back up the truck here.
“The location from which [these privileged documents] were taken” was, at least originally, the White House: Then-president Trump brought them with him to Mar-a-Lago when he left office. What the FBI did last week was retrieve them.
I know this was at least four Trump news cycles ago, so it feels like ancient history, but the original fact from which all else flows is that, classified or not, the documents at issue are government records. Even if they are subject to legitimate privilege claims, the documents are still the property of the United States.
So of course the FBI took privileged documents from Mar-a-Lago. To repeat what I laid out over the weekend, the warrant that the bureau executed, approved by a federal district court in Florida, authorized the agents to take every shred of paper generated during the four years of the Trump presidency that it could find. Since presidential administrations produce mounds of work product covered by the executive and/or attorney-client privileges over a four-year term, the search was always likely to result in the seizure of at least some privileged material.
Let’s keep our eye on the ball. When evaluating the Justice Department’s behavior in this situation, the question we should ask is: Did government officials go too far in the methods by which they reclaimed presidential records? Was the impasse between the DOJ’s lawyers and Trump’s lawyers really so serious, so dire, that the Justice Department and FBI needed to get involved? Was it really necessary to turn a conflict between the National Archives and a former president into a criminal-law controversy and, for the first time in history, search the residence of a former American president?
In other words, the issue is not whether Trump committed a wrong, but whether the government’s actions were a proportional response to that wrong; Trump was unquestionably in violation of the law.
Let’s say you believe, as I do, that (a) for as long as he remained president, Trump had the legal authority to declassify any government document he chose to declassify, no matter how irresponsible doing so might have been; and (b) the Presidential Records Act is not a criminal statute and is not meant to be enforced through search warrants and indictments. Even assuming those beliefs to be true, the Presidential Records Act is still the law of the land. It is a presumptively valid congressional statute that has been on the books, without being invalidated by a court, for nearly half a century.
Under the PRA, the records generated by the Trump presidency are the property of the United States government. Trump had no lawful right to keep them down at Mar-a-Lago. This is not just about the classified information Trump kept there; it’s about all of the presidential records he kept there, no matter how trivial. There are separate issues pertinent to the classified documents, because there are laws and regulations unique to them, owing to the fact that the nation can be harmed if they fall into the wrong hands — which makes it especially irresponsible of Trump to keep them in his home. But even if none of the materials he’d stored at Mar-a-Lago had been classified, Trump would still have committed a violation of the law by removing presidential records from a government facility and retaining them as if they were his personal property.
For all of his fury, I do not believe Trump himself has ever claimed to be in compliance with the PRA. He’s tried to deflect by claiming that other presidents did what he’s done, but those claims are wrong — and they wouldn’t constitute a defense of his actions even if they were accurate.
Contrary to Trump’s assertions, President Obama did not interfere when the National Archives took custody of millions of pages of his presidential records. And when President Clinton sleazily swiped nearly $200,000 of property (including furniture, china, and flatware) upon leaving the White House, the government did not stand idly by; Clinton ended up reimbursing the government for most of it — and documents were not at issue.
Trump has further claimed that he told government officials they could have anything they wanted, they just needed to ask. That, however, is neither the whole story nor the way things are supposed to work. The National Archives had been trying to get the records back for over a year. After resisting, Trump finally gave them about 15 boxes’ worth of material, but, as is now clear, he retained a great deal more. There is no requirement that the government itemize which of its records it wants back; Trump should not have taken them in the first place, and should have returned all of them on request, end of story. This is not supposed to be a negotiation.
With no defense, Trump has framed himself as the victim of government hyper-aggression. It’s a shrewd framing because there’s truth in it. But it only gets him so far, because again, he unquestionably violated the law. The National Archives wanted the records back. Trump didn’t want to give them back and calculated that the government wouldn’t do much about it. That was a bad bet for a guy who was (a) in improper possession of classified documents whose security government officials were worried about; and (b) under investigation in connection with the Capitol riot, a probe that the DOJ is pressing with zeal.
We can question whether Trump’s conduct was so illegal that it was proper for the government to escalate to a search of his residence when other efforts at persuasion apparently did not work. Based on what we now know, I think the answer to that question is no. But that’s not because what Trump did was legitimate; it wasn’t. Rather, it’s because the government has not resorted to such an extraordinary step in recent history.
For example, I believed that, quite apart from her gross negligence in handling classified information (which the FBI acknowledged), the most compelling case for prosecuting Hillary Clinton over the email scandal was the fact that she systematically converted to her own use and then destroyed thousands of government records. I argued that she should be prosecuted under the federal embezzlement statute, which makes conversion and destruction of government records a crime. Nevertheless, once they decided her recklessness with classified intelligence did not merit prosecution, the Hillary-smitten Obama-Biden Justice Department barely acknowledged her felonious conversion and purging of other government records.
Having taken that position, I don’t think there’s much chance DOJ will prosecute Trump on the potential allegations laid out in the search warrant. (I’ll talk more about that in a separate post.) But understand: Even if you believe that there should be no charges, and that the Biden administration should not have used criminal-law tactics to retrieve presidential records from Mar-a-Lago, there is no doubt that the records are the government’s property. If you are defending Trump after you chanted “lock her up” in response to Clinton’s malfeasance six years ago, that is only a worthy argument because she got a pass. They were both in the wrong.
The privilege issues Trump now cites have no bearing on the rightful ownership of the documents in question. Remember last year, when the House January 6 committee made a formal request for Trump’s presidential records and Trump responded by trying to assert executive privilege? Trump did not have possession of those documents. The committee’s formal request went to the archivist of the United States, because these records — the vast majority of Trump presidential records — were properly stored at the National Archives. The courts still entertained the former president’s privilege claims (and ruled against him). But the claims themselves had nothing to do with the ownership or possession of the records.
Privilege conveys confidentiality, not ownership. If Trump has valid attorney-client or executive privilege claims on documents the FBI seized at Mar-a-Lago, that might affect whether the Justice Department may get access to those documents and use them in its investigations of the former president — such as its January 6 probe. But such access has no bearing on who owns the documents. The privileges may belong to Trump; the materials themselves do not.