Aug 9, 2022 - Politics & Policy

Presidential Records Act and Trump search explained

Police standby at the approach to Mar-a-Lago in Palm Beach on Monday night, Aug. 9, 2022,
Police standby at the approach to Mar-a-Lago in Palm Beach on Aug. 9. Photo: Nicholas Nehamas/Miami Herald/Tribune News Service via Getty Images

The FBI on Monday executed a search warrant at former President Trump's Mar-a-Lago residence in what one former federal prosecutor called the "most important search warrant in the history of the United States."

The big picture: The search appeared to mark a dramatic escalation in the investigation into Trump's handling of presidential documents.

  • Two sources familiar with Monday's investigation told Axios' Jonathan Swan that it was their understanding that the raid was related to documents Trump took from the White House that may have been classified.
  • It is unclear what specific evidence the FBI sought from Trump, who is entangled in numerous legal battles, including the Justice Department's investigation into efforts to overturn the 2020 presidential election.
  • Below is a look at the Presidential Records Act — what it is and how it came to be — and how Monday's investigation likely unfolded.
What is the Presidential Records Act?
  • After former President Nixon refused to hand over White House records during the Watergate scandal, Congress in 1978 passed a law requiring presidents to preserve all historically relevant materials.
  • "The United States shall reserve and retain complete ownership, possession, and control of Presidential records," the law says.
  • The National Archives and Record Administration (NARA), which oversees the process, sifts through the documents to determine which can be made public and which should be redacted based a number of factors, including but not limited to "the interest of national defense or foreign policy" and relating to appointments to federal office, trade secrets and commercial or financial information.
  • A president can only destroy a document if they receive permission from the Archives to do so.
Classified documents and Trump

The Jan. 6 select committee delivered a letter to the National Archives last August, requesting any insurrection-related White House documents and communications from or around the date of the insurrection.

  • The requested records would shed light on the events leading up to Jan. 6 and the day itself, including what intelligence was gathered and disseminated, security preparations around the Capitol, and the planning of events scheduled for Jan. 5 and 6, per the committee.
  • Trump's legal team sought to invoke executive privilege on an initial set of White House documents produced in response. However, President Biden then waived executive privilege on the initial set of White House documents.

The 45th president took his legal challenge all the way to the Supreme Court, which in February rejected his request to block NARA from releasing the records to the select committee.

  • The court's rejection marked a formal end to Trump's efforts to prevent lawmakers from obtaining records that contained White House visitor logs and other documents that the former president attempted to keep hidden.

NARA retrieved boxes containing information from Trump's time at the White House that he took to Mar-a-Lago instead of handing over to the agency.

  • "In mid-January 2022, NARA arranged for the transport from the Trump Mar-a-Lago property in Florida to the National Archives of 15 boxes that contained Presidential records, following discussions with President Trump’s representatives in 2021,” the National Archives said in a statement Feb. 7.
  • Trump improperly took the boxes, NARA said, which contained, among other things, correspondence between Trump and North Korean leader Kim Jong-un.
  • Federal prosecutors then launched a grand jury investigation into whether Trump mishandled White House records by bringing the boxes to his estate after he finished his term

Trump maintains he provided the National Archives with "Presidential Records in an ordinary and routine process."

Of note: Axios on Monday published photos, obtained by New York Times reporter Maggie Haberman, showing wads of paper clogging a toilet, which, White House staff believed Trump was responsible for.

FBI's search warrant
  • To obtain and execute a search warrant, the FBI must have an affidavit that sets forth probable cause that at least one crime was committed.
  • Search warrants also require a connection between the crime and the place that is being searched; federal agents must be able to list the specific items that are going to be searched; and the evidence has to be relatively fresh.
  • When a search warrant is requested for a major figure, including a president or other elected official, "it goes through a long review process," Gene Rossi, a former federal prosecutor, told Axios.

In Trump's case, for instance, the FBI first works with prosecutors at the Department of Justice to review the search warrant, Rossi said.

  • Chris Wray, the Trump-appointed director of the FBI, had to sign off on the warrant before it was sent for review to senior DOJ leaders, including Attorney General Merrick Garland.

The bottom line: "This search warrant for the former president of the United States of America was looked at by a ton of people, it was perused by every prosecutor and agent you could find. And it went through multiple layers of review," Rossi said.

  • "And the crescendo reviewer had to be the Attorney General of the United States. That makes it the most important search warrant in the history of the United States."

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