By Jessie Seigel / Washington, D.C.
Over the course of his presidency, Donald Trump ripped and shredded government documents like he was trying to compensate for a national shortage of confetti. According to the Washington Post, “he tore up briefings and schedules, articles and letters, memos both sensitive and mundane.” And he ripped documents “into quarters with two big, clean strokes — or occasionally more vigorously, into smaller scraps.”
Last week, former White House aide Omarosa Manigault Newman told MSNBC, “After [Trump attorney] Michael Cohen left the office and I walked into the Oval, Donald—in my view—was chewing what he had just torn up.” One can only imagine how damaging to him that document must have been.
It appears that Trump even tried to flush documents down the toilet. Maggie Haberman, White House correspondent for the New York Times and author of the forthcoming Trump biography, Confidence Man, told CNN, “I learned that staff in the White House residence would periodically find the toilet clogged, the engineer would have to come and fix it and what the engineer would find would be wads of, you know, clumped up, wet, printed paper, meaning it was not toilet paper.” That certainly would explain why Trump repeatedly complained at his rallies that White House toilets had to be flushed 15 times to get them to work!
Within a nanosecond, the bathroom allegations were dubbed ‘Flushgate.” Trump, of course, denies he flushed papers down White House toilets. But who other than a MAGA cultist would now believe a man whose life’s avocation is crying wolf?
The Presidential Records Act requires all documents of a president’s administration to be preserved. Therefore, the Washington Post reported, aides from the Office of the Staff Secretary or the Oval Office Operations team “would come in behind Trump to retrieve the piles of torn paper he left in his wake.” Then, staffers from the White House Office of Records Management were “responsible for jigsawing the documents back together, using clear tape.” Sometimes the ripped documents were lying in the Oval Office or the White House residence; sometimes they had been placed in classified burn bags.
In addition, when Trump left the White House last year, he took with him to Mar-a-Lago, numerous boxes of documents that should have gone to the National Archives. The Archives demanded the documents back. After months of tug-of-war negotiations, the agency finally received 15 boxes in mid-January, including some ripped documents that had not been reconstructed. Trump representatives claim they are searching to see if there are more.
The Presidential Records Act
Documents that must be preserved under the Presidential Records Act include memos, letters, emails, faxes, and other written communications related to a president’s decision-making and official duties. Under federal law, the punishment for anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” documents in their custody are a fine, imprisonment for up to three years, and—most consequential—the violator is “disqualified from holding any office under the United States.”
The Act was passed in 1978, after former President Richard Nixon’s destruction of tapes related to his Watergate scandal, in order to prevent future cover-ups of criminal actions by presidents and their administrations. One could argue that the Act’s maximum prison sentence should be stiffer. But three years is still something. And what poetic justice it would be for the man who so vociferously decried Hilary Clinton’s mistaken use of a private server for emails—and who enthusiastically led his rallies in chants of “Lock her up”—to end locked up himself for the deliberate obstructive destruction of documents. But even more important—Trump could never again hold federal office.
Though prosecution under the act has been rare, it is not unknown. In 2005, former President Bill Clinton’s National Security Advisor Sandy Berger pled guilty to a misdemeanor for unauthorized removal and retention of classified material from the National Archives. Berger was fined, sentenced to two years of probation plus 100 hours of community service, and ultimately gave up his license to practice law.
Trump’s Transgressions
Some of the items which Trump absconded with when he left the White House are, comparatively speaking, penny ante, like the letter President Barack Obama had left for him, and the weather map Trump defaced with a black Sharpie marker in a ridiculous effort to support his Twitter declaration contradicting weather forecasts about the path of Hurricane Dorian.
Trump also took a mini model of the wall he wanted built at our southern border and a model of a redesign he had proposed for Air Force One. The mini model of the black border wall sits on his desk in his private Mar-a-Lago office. And the model plane sits on a coffee table at the entrance to Mar-a-Lago’s gold-plated lobby. Taking these as souvenirs was improper and they must, of course, be returned to the National Archives.
But most of Trump’s document transgressions are far more serious. Trump took away with him correspondence with North Korean leader Kim Jong Un that he had once described as “love letters.” Furthermore, according to Maggie Haberman, Trump told others that he has remained in contact with the North Korean leader since leaving the White House. This raises a question concerning the nature of that contact—whether Trump is, as a private citizen, attempting to meddle in foreign policy.
Even more concerning, some of the documents in the 15 boxes finally delivered to the Archives were marked classified or top secret. One must wonder what Trump was intending to do with them. Would he have sold them for profit? Might he have traded the information in them to support a defection to Putin’s Russia if he ever gets indicted and convicted for any of his actions?
And precisely what in the documents Trump tore up, ate, or stuffed into toilets was he trying to hide?
The Washington Post reported that the over 700 pages of documents that the Archives turned over to the January 6 committee in January included papers that were torn up and reconstructed. And when the committee asked for documents related to Trump’s pressuring of Vice President Mike Pence, some of them no longer existed because they had been shredded.
Even worse, although it is known that Trump had numerous phone conversations during the January 6 insurrection, there are very few calls in the White House’s official call logs on that date. This raises the question of whether Trump was using a personal phone or the phones of aides and others in order to conceal the conversations.
Will Trump Be Held Accountable?
Last week, after discovering documents labeled classified among the returned boxes, the Archives asked the Department of Justice (DOJ) to investigate former President Trump’s handling of White House records since leaving office.
In addition, according to The Independent, the Citizens for Responsibility and Ethics in Washington sent a letter to the DOJ asking that it “investigate whether former President Trump violated criminal laws by willfully destroying and mutilating his presidential records while in office.”
According to the Washington Post, the Archive’s referral “has prompted internal discussions” among federal prosecutors about possibly investigating. But just as with all the other Trump actions that should be investigated, there is no indication whether Attorney General Merrick Garland’s DOJ will do so. In fact, DOJ’s first reaction was to suggest that the Archives’ Inspector General investigate. One wonders whether there is anything at all related to Trump’s malfeasance that timid mister mouse Garland will dare to pursue.
The Hill has suggested that even if Trump is found to have held on to official records, prosecution would be difficult, requiring the DOJ to show that the former president intended to conceal important documents.
Charles Tiefer, former counsel to the House of Representatives who teaches at the University of Baltimore School of Law, told the Washington Post that although willful and unlawful intent to destroy or conceal would be criminal, “You can’t prosecute for just tearing up papers. You would have to show him being highly selective and have evidence that he wanted to behave unlawfully.”
Some of Trump’s former aides have tried to make exculpatory excuses for his document desecrations. They’ve suggested that, because Trump was indiscriminate in what he tore up, they viewed it as just a quirk rather than a deliberate effort to avoid public scrutiny. One unnamed former Trump White House official told the Washington Post, “I don’t think he did this out of malicious intent to avoid complying with the Presidential Records Act.” The official added, “As long as he’s been in business, he’s been very transactional and it was probably his longtime practice and I don’t think his habits changed when he got to the White House.”
However, that Trump has habitually destroyed documents throughout his pre-presidency career does not relieve him of responsibility for his actions. Who knows? Perhaps he previously destroyed documents to conceal shady business practices. Perhaps he learned an early lesson from Nixon’s downfall: leave no paper trail.
In any event, Trump clearly knew the law concerning presidential records when he repeatedly broke it. He knew it when he called for Hilary Clinton to be “locked up” for allegedly mishandling emails.
And he plainly stated that knowledge in February 2020, when Speaker of the House Nancy Pelosi showed her disdain for his divisive message by tearing up her copy of his State of the Union address in front of the entire House and Senate.
Trump told reporters: “Well I thought it was a terrible thing when she ripped up the speech. First of all, it’s an official document. You’re not allowed. It’s illegal what she did. She broke the law.” Although Trump did not cite a specific law, according to USA Today, his son, Donald Trump Jr. and other cronies claimed Pelosi had violated the Presidential Records Act.
Pelosi was only tearing up a copy she and many others had received. It was not an official document, and she was not breaking the law. However, Trump’s statement makes it quite clear that he knew destroying presidential documents was illegal.
Furthermore, according to the Washington Post, a former senior administration official said Trump was repeatedly warned about the Presidential Records Act by then White House counsel Donald McGahn, as well as his first two chiefs of staff, Reince Priebus, and John F. Kelly.
The open question at this point is whether Donald Trump will be permitted to use the illegal destruction and confiscation of public documents to obstruct legitimate investigations of his suspect activities—documents that could shed light on his part in the January 6 insurrection, the fake elector scandal, and others.
Congress is attempting to do its job. House Oversight Committee Chair Rep. Carolyn Maloney of New York told the Washington Post that her committee plans to investigate the records matter to ensure “records from the Trump Administration are with the National Archives where they belong, rather than stashed away in Trump’s golf resorts.” But the House does not have enforcement authority, or any ability to prosecute for wrongdoing. That belongs to the DOJ.
Those who suggest that penalties under the Presidential Records Act have little in the way of teeth, should remember that Al Capone was not convicted for his many violent crimes but for the seemingly more sedate, white-collar crime of tax evasion.
And while some suggest prosecution for violation of the Presidential Records Act could be difficult, where justice—let alone crimes affecting the nation—are involved, DOJ should not limit itself to taking on only easy, open-and-shut prosecutions. Merrick Garland needs to get up off his sitting bones and have the DOJ do something while we still have a shred of the Rule of Law left.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.