DONALD TRUMP; PRESIDENTIAL RECORDS; ESPIONAGE
19 JUNE 2023
Former U.S. President Donald Trump has been indicted on 37 federal charges, over the taking and hoarding of official documents, but still maintains he's done nothing wrong.
In this BALANCER, we examine the Presidential Records Act of 1978 and the Espionage Act 1917 - to see if there's any truth at all to Trump's claims.
INTRODUCTION
Donald Trump took official documents with him from the White House when his presidential term ended, and stored them at his resort home Mar-a-Lago in Florida.
There is no dispute there - even from the man himself.
The dispute is whether it was legal or not.
Trump says it was perfectly legal; something he will likely repeat many times in the lead up to the Republican primary season in early 2024.
But this case may well end up being the one which he can't simply pass off as 'fake news' or a 'witch-hunt'.
WHAT WAS FOUND?
On 8 August 2022, FBI agents executed a search warrant on Donald Trump's residence in Florida, Mar-a-Lago.
They found boxes of documents in a storage room, as well as a ballroom, offices, and even a bathroom.
They were moved to the bathroom in April 2021, according to the charge sheet.
Secret and Top Secret documents were also found at Mar-a-Lago, in amongst the framed magazine covers.
SCI stands for Sensitive compartmented information.
DONALD TRUMP'S TAKE
The president HAS the right to take any record when leaving office and DECLARE THEM PERSONAL
“Under the Presidential Records Act — which is civil, not criminal — I had every right to have these documents.”
- Donald Trump, 13 June 2023
WHAT IS A 'PRESIDENTIAL RECORD'?
Presidential Records (44 U.S.C. Chapter 22)
§2201.
(2) "Presidential records" means documentary materials created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.
(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; but
(B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code; (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
WHAT IS A 'PERSONAL RECORD'?
PRESIDENTIAL RECORDS (44 U.S.C. CHAPTER 22)
§2201.
(3) The term "personal records" means all documentary materials, which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
THEREFORE, TRUMP'S ASSERTION IS WRONG
He can take his diaries and journals and anything pertaining to his political campaigns, but nothing to do with the "constitutional, statutory, official, or ceremonial duties of the president."
This would include classified information on U.S. defence plans, - a "plan of attack" - which he is accused of sharing with a writer who was interviewing him in New Jersey (suggesting the documents didn't exclusively stay at Mar-a-Lago).
Also, there is nothing in the Presidential Records Act which says the President has the power to declassify information simply by declaring it to be 'declassified'.
31 of the 37 charges are under the espionage aCT
18 US Code 793
(E) Whoever having unauthorised possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
'ESPIONAGE' DOESN'T JUST MEAN 'SPYING' OR 'AIDING THE ENEMY'
- Trump has NOT been accused of holding information which "could be used to the injury of the United States or to the advantage of any foreign nation".
- Trump has NOT been accused of "attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it".
- But he IS charged with being someone who "willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it".
The National Archive has been asking Trump since May 2021 to return any presidential records he had taken from the White House, after it discovered it was missing some documents from his tenure.
Trump finally turned over 15 boxes to the National Archives in January 2022, containing:
- 69 confidential documents
- 98 secret documents
- 30 top secret documents
This is one of the key differences between Trump's situation, and that of former Vice President Mike Pence and President Joe Biden. While both men were found to have official documents stored at their residences or offices, the documents were immediately handed back to the National Archives upon discovery.
MORE READING
The Espionage and Sedition Acts
The Jack Miller Center
Guidance on Presidential Records
National Archives and Records Administration
As President Trump Tweets And Deletes, The Historical Record Takes Shape
NPR
25 OCTOBER 2019
