Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago?

A former president’s rights under the Presidential Records Act trump the statutes the FBI cited to justify the Mar-a-Lago raid.

The Trump Warrant Had No Legal Basis
The Trump Warrant Had No Legal Basis

The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.

The warrant authorized the FBI to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519” (emphasis added). These three criminal statutes all address the possession and handling of materials that contain national-security information, public records or material relevant to an investigation or other matters properly before a federal agency or the courts.

The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.

The only statute that matters is the Presidential Records Act of 1978

According to the Wall Street Journal, “Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.

 Nixon v. U.S. (1992)

The PRA dramatically changed the rules regarding ownership and treatment of presidential documents. Presidents from George Washington through Jimmy Carter treated their White House papers as their personal property, and neither Congress nor the courts disputed that. In Nixon v. U.S. (1992), the U.S. Circuit Court of Appeals for the District of Columbia held that Richard Nixon had a right to compensation for his presidential papers, which the government had retained under the Presidential Recordings and Materials Preservation Act of 1974 (which applied only to him). “Custom and usage evidences the kind of mutually explicit understandings that are encompassed within the constitutional notion of ‘property’ protected by the Fifth Amendment,” the judges declared.

Presidential Records Act explicitly guarantees a former president continuing access to his papers

The PRA became effective in 1981, at the start of Ronald Reagan’s presidency. It established a unique statutory scheme, balancing the needs of the government, former presidents and history. The law declares presidential records to be public property and provides that “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records.”

The Trump Warrant Had No Legal Basis
The Trump Warrant Had No Legal Basis

The PRA lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access. Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.

The PRA explicitly guarantees a former president continuing access to his papers. Those papers must ultimately be made public, but in the meantime—unlike with all other government documents, which are available 24/7 to currently serving executive-branch officials—the PRA establishes restrictions on access to a former president’s records, including a five-year restriction on access applicable to everyone (including the sitting president, absent a showing of need), which can be extended until the records have been properly reviewed and processed. Before leaving office, a president can restrict access to certain materials for up to 12 years.

The only exceptions are for National Archives personnel working on the materials, judicial process, the incumbent president and Congress (in cases of established need) and the former president himself. PRA section 2205(3) specifically commands that “the Presidential records of a former President shall be available to such former President or the former President’s designated representative,” regardless of any of these restrictions.

Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful

Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”

Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.

PRA doesn’t distinguish between materials that are and aren’t classified

In making a former president’s records available to him, the PRA doesn’t distinguish between materials that are and aren’t classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present—making this a basis on which a president can impose a 12-year moratorium on public access.

The Trump Warrant Had No Legal Basis
The Trump Warrant Had No Legal Basis

The government obviously has an important interest in how classified materials are kept, whether or not they are presidential records. In this case, it appears that the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room. If that was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.

Presidential Records Act

The Presidential Records Act (PRA) of 1978, 44 U.S.C. §§ 2201–2209,[1] is an Act of the United States Congress governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential records. Enacted November 4, 1978,[2] the PRA changed the legal ownership of the President’s official records from private to public, and established a new statutory structure under which Presidents must manage their records. The PRA was amended in 2014, to include the prohibition of sending electronic records through non-official accounts unless an official account is copied on the transmission, or a copy is forwarded to an official account shortly after creation.[3]

History – Presidential Records Act

The Presidential Records Act was enacted in 1978 after President Richard Nixon sought to destroy records relating to his presidential tenure upon his resignation in 1974. The law superseded the policy in effect during Nixon’s tenure that a president’s records were considered private property, making clear that presidential records are owned by the public. The PRA requires the President to ensure preservation of records documenting the performance of his official duties (44 U.S.C. § 2203(a)), provides for the National Archives and Records Administration (NARA) to take custody and control of the records (44 U.S.C. § 2203(g)), and sets forth a schedule of staged public access to such records (44 U.S.C. § 2204). Records covered by the PRA encompass documentary materials relating to the political activities of the President or members of the President’s staff if they concern or have an effect upon the carrying out of “constitutional, statutory, or other official or ceremonial duties of the President” (44 U.S.C. § 2201(2)).

Provisions – Specifically, the Presidential Records Act:

  • Defines and states public ownership of the records.
  • Places the responsibility for the custody and management of incumbent presidential records with the President.
  • Allows the incumbent president to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once he or she has obtained the views of the Archivist of the United States on the proposed disposal in writing.

    The Trump Warrant Had No Legal Basis
    The Trump Warrant Had No Legal Basis
  • Establishes a process for restriction and public access to these records. Specifically, the PRA allows for public access to presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years. The PRA also establishes procedures for Congress, courts, and subsequent administrations to obtain special access to records that remain closed to the public, following a 30‑day notice period to the former and current Presidents.
  • Requires that Vice-Presidential records are to be treated in the same way as presidential records.
  • Establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.
  • Establishes procedures for Congress, courts, and subsequent Administrations to obtain “special access” to records from NARA that remain closed to the public, following a privilege review period by the former and incumbent Presidents; the procedures governing such special access requests continue to be governed by the relevant provisions of E.O. 13489
  • Establishes preservation requirements for official business conducted using non-official electronic messaging accounts: any individual creating Presidential records must not use non-official electronic messaging accounts unless that individual copies an official account as the message is created or forwards a complete copy of the record to an official messaging account. (A similar provision in the Federal Records Act applies to federal agencies.)
  • Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.
  • Prevents an individual who has been convicted of a crime related to the review, retention, removal, or destruction of records from being given access to any original records.

Related Executive Orders

  • Executive Order 12667 – issued by President Reagan in January 1989, this executive order established the procedures for NARA and former and incumbent Presidents to implement the PRA (44 U.S.C. §§ 2201–2207).
  • Executive Order 13233 – this executive order, issued by President George W. Bush on November 1, 2001, supersedes the previous executive order. The Bush executive order also includes the documents of former Vice Presidents.
  • Executive Order 13489 – issued by President Barack Obama on January 21, 2009, restored the implementation of the PRA of 1978 as practiced under President Reagan’s Executive Order 12667 and revoked President Bush’s Executive Order 13233.

 

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