October 5, 2022

Here’s why the public owns Trump’s presidential records

8 min read

Of course, Trump, whose lawyers have warrants and similar receipts for items taken by the FBI, could have done it at any moment. Now he has to decide if it’s worth fighting in court, or if he should just issue a search warrant himself.

It will be clear in the coming days whether Trump will agree or fight it, and whether a judge will quash the warrant and receipt.

Which is not expected.

The most important thing, by the way, will not be sealed.

“The most detailed document here is the affidavit,” said CNN legal counsel Eli Honig analyst and former federal prosecutor, during an appearance on CNN. “This is a document that can usually be 20, 40, 100 pages, where the prosecutor writes chapter and verse, here’s all of our evidence that gives us probable cause.”

Neither Trump nor his lawyers have seen the document, and Garland is not talking about unsealing it.

Enough to quell the uproar?

Giving public access to the warrants would show that, despite Trump’s claims, the Justice Department and the FBI are following the law.

After a few years of relatively low drama under the Biden administration, it was a major shock in the Trump era — when the nation’s government has periodically seemed on the brink of collapse — that the former president has appointed the nation’s law enforcement agencies. was accused. “Witch Hunt” stuff.

Flip the channel. Fox and you’ll hear the unproven theory that the DOJ is on a fishing spree.

“There’s this flurry of activity related to Jan. 6, and then we’re told that this other investigation had absolutely nothing to do with Jan. 6,” said Michael McAsey, a former attorney general under George W. Bush. , who appeared on Fox after Garland. Remarks “It’s difficult, and yet they put 30 FBI agents on it to go in and seize documents that everybody knew were there.”

There is a mystery witness.

There are also new reports that a tip from a witness sparked the search after agents seized boxes of documents based on a grand jury subpoena in June.

McMulaney, Trump’s former chief of staff, speculated that the witness must be someone very close to the former president who also knew about the Mar-a-Lago safekeeping.

“I didn’t even know anyone was safe at Mar-a-Lago, and I was chief of staff for 15 months.” Mulvaney told CNN. “So it would be very close to someone inside.”

He added: “If you know where the safe is, and you know the documents are in 10 boxes in the basement, you’re pretty close to the president.”

It was a chain of events, according to CNN reports:

A criminal investigation was launched with concerns about missing documents. The National Archives, which in January made a criminal referral to the Department of Justice after discovering highly sensitive documents among materials recovered from Mar-a-Lago.

The 15 boxes contained some material that was part of the Special Access Program (SAP), a classification that includes protocols that significantly limit who can access information, the archives said. According to a source familiar with what was discovered in the boxes. That led the FBI to conduct interviews with grand jury deputies to search and seize documents authorized by this week’s court order.

Why are these documents public property?

Trump has apparently sought to keep documents from his presidency out of the National Archives despite a plea and negotiations that — as with any Trump presidency — are completely unprecedented.

Why the public has ownership of presidential documents is a relatively recent development that, like many restrictions on the presidency, has its roots in Watergate.

Historian Timothy Naftali, a professor at New York University and former director of the Richard Nixon Presidential Library and Museum, told me the whole story. His words, edited for length and flow, are in italics, and I’ve added some subheadings.

After leaving office, Nixon wanted his tapes and papers

A few days after Nixon resigned, a moving van pulled up in front of the White House. And the moving van was there to take Nixon’s documents and his tapes.

And Ford management thought, “Oh, my God, what are we going to do?”

So he went to his legal counsel’s office, and he asked, “Who owns the Nixon tapes and his papers?” (Naftali paraphrasing here and above.)

Presidents before Nixon owned their own papers.

The person in charge of the Office of Legal Counsel at the time was a lawyer named Antonin Scalia. And Antonin Scalia said the president does. It’s our tradition in the United States, going back to George Washington, that the president’s own papers, and his papers include anything that went to him and anything prepared by his staff.

There was no difference between official and private documents. This was very similar to the way the King and Queen of England controlled documents.

There is nothing in the constitution about this and there was no law.

Congress did not get involved because it is a matter for the executive branch, and public opinion has never been such as to compel presidents to make their content public.

Nixon exchanged access to his papers for a pardon.

Richard Nixon was within his rights to say, well, they’re mine and take them back to California.

The Ford administration realized it had a problem because if it turned over the documents and tapes to Nixon, people might see it as a cover-up.

So the Ford administration tried to work out a deal with Nixon to ensure that the documents could be made available for court cases, and that he could not destroy them for a certain period of time.

That agreement was part of the agreements that led to the amnesty. Richard Nixon had to agree to pardon Ford.

Nixon agrees. Ford apologizes.

Congress intervened and passed legislation to seize Nixon’s documents.

And then Congress finds out about it and says, “Oh, my God, no, no, no, no, no, no, yes, it’s true that the Ford administration will make sure that the court cases The necessary documents are available, but then Nixon can destroy anything that isn’t presented. We don’t want that.” (Naftali is paraphrasing here.)

And so Congress passed a law called the Presidential Recordings and Materials Preservation Act of 1974 that effectively seized all of Nixon’s materials and deemed them in the public domain.

Nixon’s papers have been confiscated. It was a big deal.

This was unprecedented in American history. Absolutely unique. No president’s material was treated this way. All former presidents — they or their estates — treated presidential materials as private documents. This includes the time the CIA gave presidents national security equipment. all of them.

Just because something was private didn’t mean presidents were allowed to display it at their golf clubs.

However, Congress does. And Nixon’s tapes have been seized and Nixon’s belongings have been seized. They don’t go to San Clemente (where Nixon lived in California).

Nixon took Congress to court. He also wanted to get paid.

Nixon cries foul. They say, “Hey, wait a minute, why am I being treated differently than every other president?”

Nixon said, “I own them. It’s not right. It’s unconstitutional and against the spirit of our tradition.” So he went to court and said, “You’re taking my property away from me. You’re actually taking property.”

He wanted both to control these documents, but also, if he was going to lose them, he wanted compensation. Basically, he argued, “Listen, these documents are worth something. And in retirement, I might need that money. So you owe me money to take my property.” (Naftali is describing here and above.)

The Supreme Court sided with the Congress.

What the courts had to figure out was, well, what really is the difference between private presidential material — because everyone agreed that there was some material that was private — and public material.

There was a series of cases, and these cases laid the foundation for the definition of public and private, which would then be enshrined in law through the Presidential Records Act of 1978.

Congress decided to pass a law defining what was public and what was private in terms of presidential records.

This means that the public owns the presidential record.

That means they are owned by the American people. The American public may not be allowed to see them yet, as they are classified. But at least ownership meant presidents couldn’t destroy them.

So it was important. Presidents then had to treat some of the products of their administration as the property of someone else, and therefore could not destroy it at will.

That is why it was important. Donald Trump flushed the documents down the toilet.Because he was actually flushing public property down the toilet, and he had no right to do so.

So the Presidential Records Act is a product of the Watergate era. And it is the product of the American people and Congress coming to terms with the powers of the presidency and concluding that the presidency is too strong, and that presidents have exercised areas of law not touched by the Constitution. .

Is the FBI search worth it?

Naftali argued that all of this should have been explained to Trump repeatedly during and after his presidency and therefore there was no justification for taking the documents.

Further, Naftali argued that the government would provide secure storage so that the former president could access his documents at any time.

He was less specific when I asked if Trump’s lashing of supporters and unifying Republicans behind him was the FBI’s search for Mar-a-Lago to protect documents under the law. is able to:

This decision should not have been based on politics. It should have been based on an understanding of the appropriate measures in view of the potential offence. And I’ll reserve judgment until I see what they were trying to restore.

There is no question that the US government — we, all of us, because national security is in all of our interests — has an interest in protecting and protecting classified information.

And the question is why the administration, after long discussions with President Trump’s representatives, concluded that our national security was somehow compromised, perhaps compromised, lacked full cooperation. Because of what the Justice Department was getting from Donald. Trump and his representatives.

I would caution all who love this country not to jump to judgment about the political costs of holding Donald Trump accountable.

There is no former president in modern times who has gone to war against our Constitution. Richard Nixon did not agree to handle his material, and he went to the Supreme Court and he accepted the result. He did not go to war against our constitution.

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