🤿 Sunday Deep Dive: Will Filing Foil the 45th?

It’s hard to find someone with as much longevity in the public sphere as former President Donald Trump. From scandals involving pornstars, tax fraud, and profiteering off foreign governments to claims of election interference and, most significantly, allegations that he incited an insurrection — the 45th has had no shortage of controversial headlines and potential legal downfalls.

As you most likely know, Trump is facing an investigation into presidential records found at his residence at Mar-a-Lago. Potential jail time is not out of the question. His lawyers are calling it a “document storage dispute that has spiraled out of control.” While we don’t know exactly what the FBI found in his basement, we do know that this is not just a case of cool mementos (like White House dinner menus) getting mixed up by the movers. The stakes are much higher. The government asks if state secrets were made vulnerable and investigators actively misled.

For legal pros, it will be fascinating to watch the country’s political future play out in the courtroom in a case that is a major test of the legal system’s impartiality. Here’s a close look at everything that’s happened so far, the legal arguments at play, and what it could mean for the in-house legal department.

Lost in the Move

When Trump left office in Jan 2021, he took a number of boxes from the White House to his home at the Mar-a-Lago Club, a sprawling estate and exclusive members club in Palm Beach, Florida. The former president is known to have treated Mar-a-Lago as an extension of the White House. He entertained world leaders there and even approved a military strike from the estate (just your typical holiday home activities).

Living in 2 states seems to have complicated his already dodgy approach to filing. Former aides say “a small storm of paperwork often followed him wherever he went.” Politico reported that Trump regularly tore up papers when he was done with them. In the hours before he left the presidential palace, aides say there was a mad rush to get everything Trump wanted packed up.

Being disorganized may be an irritating trait but it isn’t against the law. What is illegal is mismanaging government records. The Presidential Records Act (PRA) makes it pretty clear that official presidential records:

  • Are the property of the United States and not the private property of the President.
  • Must be stored separately from the President’s personal records.
  • Automatically transfer into the legal custody of the National Archives and Records Administration (NARA) when the President’s term ends.

In May 2021, NARA noticed that some presidential records were missing and reached out to Trump’s team. They went back and forth for months. It wasn’t until this January that NARA was able to recover 15 boxes from his estate, containing “dinner menus, letters, a cocktail napkin, briefing papers — the archival equivalent of a yard sale” as well as records marked as “classified”.

The Investigation: Full Chronology (so far)

If you’ve managed to miss the headlines, frankly, we’re impressed. The details are a little harder to keep track of. Let’s dive into exactly what happened and when.

May 11 – The DOJ issues a subpoena for all classified documents at Mar-a-Lago.

May 16-18 – The FBI reviews the recovered boxes and finds “184 marked classified, 67 marked confidential, 92 marked secret, and 25 marked top secret.”

May 22 – A former White House aide claims that Trump declassified the documents.

May 25 – Trump’s attorney, Evan Corcoran, tells the DOJ in a letter, that:

  • Certain secrecy laws do not apply to the president.
  • Trump had “absolute authority to declassify documents.”
  • Criminalizing Trump in this case “would implicate grave constitutional separation-of-power issues.”

He does not actually say that the documents are declassified.

June 3 – The DOJ Chief of Counterespionage meets with Trump’s lawyers. Corcoran surrenders a folder of classified documents. A member of Trump’s team provides a signed declaration that says that a search has been conducted and all official documents have now been returned.

June 22 – The DOJ subpoenas security footage from Mar-a-Lago. This footage along with witness testimony is enough to justify a search warrant.

Aug 8 – The FBI raids Mar-a-Lago and 26 boxes are recovered including 25 sets of material marked as classified.

Aug 9 – Republican politicians denounce the raid. Trump calls it “prosecutorial misconduct” and the “weaponization of the justice system.” There is a spike in Tweets mentioning “civil war”.

Aug 11 – A man wearing body armor tries to breach an FBI field office and is shot dead by police. Investigators suspect he was present at the Jan 6 Capitol attack.

Aug 22 - Trump’s lawyers ask the judge to appoint an independent arbiter, known as a special master, to review the seized documents to identify any protected by executive privilege.

Aug 26 – A redacted affidavit is released which confirms that Trump stored national defense records at Mar-a-Lago.

Aug 30 – Following a tussle in court, a 36-page DOJ court filing is released, revealing evidence of a “likely” effort to hide classified documents and mislead investigators. It includes a photograph that shows documents with top secret markings spread out on Trump’s floor. His supporters claim the photo is staged.

Sep 5 – US district court judge Aileen Cannon, a Trump appointee, grants Trump’s request for a special master and halts the FBI review of the documents for the criminal investigation.

Sep 6 – Former Attorney General Bill Barr says Cannon’s ruling is “deeply flawed”. Others describe it as political.

Sep 8 – The DOJ asks for a stay on the Judge’s order to halt the review of the records.

Sep 15 - Judge Cannon approves Senior Judge Raymond Dearies as special master and gives him until Nov 30 to conduct the review. He is widely regarded as a fair choice. The DOJ’s request to resume the criminal review of the documents is rejected.

What’s next? The government is currently fighting to exclude 100 classified records from the special master review. Here’s a head-scratcher: the special master has said that the government cannot rely on the fact that the documents are marked as classified to prove that they are in fact classified.

The Warrant

Investigators are looking for evidence of violations of 3 laws:

  1. Section 793 of the Espionage Act relates specifically to defense information. This law covers the stuff we typically associate with espionage (i.e. passing defense secrets on to foreign nations), but the bit the DOJ is likely interested in says that whoever has lawful possession of a national defense record and “through gross negligence permits the same to be removed from its proper place of custody…or to be lost, stolen, abstracted, or destroyed” shall be fined and/or face up to 10 years in prison.

  1. Section 2071 of Title 18 of the U.S. Code says that “Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” any government record shall be fined or imprisoned for up to three years, or both.” In addition, those who break this law “shall forfeit his office and be disqualified from holding any office under the United States.”
  1. Does that mean Trump could be barred from running in future elections? Probably not. According to The New York Times, if he were convicted under 2071, voters or rival candidates could challenge his eligibility but ultimately Trump has a case that disqualification from office is unconstitutional.
  1. Section 1519 of Title 18 of the U.S. Code (aka the anti-shredding provision) is one of 21 different federal crimes relating to obstruction of justice. It’s part of the Sarbanes-Oxley Act which was enacted following the Enron and Worldcom scandals. Section 1519 states that anyone who knowingly conceals a record “with the intent to impede, obstruct, or influence” an investigation shall be fined and/or imprisoned for up to 20 years. The declaration signed by Trump’s representative will likely be important evidence, as will the security footage.

None of these laws specifies the classification status of the records.

Trump’s case

It’s still early days but several arguments have already been put forward by Trump’s team.

Personal and privileged

Two claims have been made about the nature of the documents at Mar-a-Lago. The first is that they are personal, or at least that Trump has the power to deem official documents his own personal property. The second is that the records are protected by executive privilege, “a doctrine that permits the president and executive-branch officials to shield some of their records from the other branches of government (Congress and the courts).”

The DOJ says that Trump’s team has contradicted itself. Personal items are never protected by executive privilege so they can’t have it both ways. Plus, the PRA makes it pretty clear that presidential records are not personal property. What’s not yet clear is whether former presidents are protected by executive privilege once they are no longer in office.

Can a president declassify documents via thought?

Trump’s lawyers claim that a president has the power to declassify documents. Trump himself said he had a “standing order” that documents moved to Mar-a-Lago were automatically declassified (a claim White House staff deny).

Well, it turns out presidents can declassify documents. But experts say that the idea of declassifying documents without informing the relevant people, putting that action in writing, or changing the classification markings on the documents is “borderline incoherent.”

Bill Barr says that if Trump simply “stood over scores of boxes, not really knowing what was in them and said, ‘I hereby declassify everything in here,’ that would be such an abuse and that shows such recklessness that it’s almost worse than taking the documents.”

Either way, the state’s case doesn’t rely on the documents being classified.

The DOJ is partisan?

Trump says he is being treated differently from how Hillary Clinton was treated during the email saga in 2016. An FBI investigation found that Clinton had used a private email server to conduct official business when she was secretary of state but concluded that, while she was careless, it was unreasonable to bring a criminal case against her. In August, Senator Lindsey Graham told Fox News, “if there’s a prosecution of … Trump for mishandling classified information after the Clinton debacle … there’ll be riots in the streets.”

Speaking of riots …

As if all that wasn’t enough, Trump is implicated in 5 other investigations:

  • A federal investigation into the January 6 attack on the Capitol.
  • A criminal investigation into election tampering in Georgia.
  • Two separate cases (one criminal, one civil) in New York investigating whether he fudged his companies’ finances to get loans or dodge tax.
  • A defamation lawsuit initiated by writer E. Jean Carroll.

These matters are deepening the political rift between the so-called MAGA movement and the rest of the country. A poll suggests that 58% of Americans think the MAGA movement is a danger to American democracy. Seventy-five percent of Republicans claim Trump bears no blame for the violence on Jan 6th while 19% say his actions on that date threatened the country’s democracy.

After the FBI raid, phrases like “lock and load” trended on social media sites like Gab and Telegram which are popular with Trump’s supporters there were even threats of violence against law enforcement agents. The Washington Post went so far as to say that “It’s easy and logical to conclude that the United States today stands as close to the edge of civil war as it has since 1861.”

This raises the question of whether pursuing a criminal prosecution of Trump is a smart idea. The New York Times notes that doing so could “entrench support for him … play into the conspiracy theories he has sought to stoke … inflame the bitter partisan divide, even to the point of civil unrest [and] undermine confidence in the rule of law.” On the other hand, making an exception for Trump sends the message that the powerful are above the law thus undermining confidence in the rule of law in a different way.

Where does that leave us?

You might think this has nothing to do with the legal department or your businesses in general but keeping quiet on political issues carries its own risks. Speaking out can be an opportunity to engage with stakeholders and develop your brand.

Take Dick’s Sporting Goods, for example. In 2018 after the Parkland shooting, Dick’s destroyed $5m worth of guns from their shelves. In 2020, they committed to selling even fewer guns. The announcement caused their stock to jump up by 13%. Or consider Nike’s choice to feature football player and activist Colin Kaepernick as the face of an advertising campaign. Their share price dropped, fans burned sneakers, and public figures praised and criticized them but it’s a move that could well stand the test of time as American culture changes.