Update: Donald Trump Routinely Tried To Destroy Records Subject To The Presidential Records Act

The Washington Post reports, National Archives had to retrieve Trump White House records from Mar-a-Lago:

President Donald Trump improperly removed multiple boxes from the White House that were retrieved by the National Archives and Records Administration last month from his Mar-a-Lago residence because they contained documents and other items that should have been turned over to the agency, according to three people familiar with the visit.

The recovery of the boxes from Trump’s Florida resort raises new concerns about his adherence to the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties.

Trump advisers deny any nefarious intent and said the boxes contained mementos, gifts, letters from world leaders and other correspondence. The items included correspondence with North Korean leader Kim Jong Un, which Trump once described as “love letters,” as well as a letter left for his successor by President Barack Obama, according to two people familiar with the contents.

Discussions between the Archives and the former president’s lawyers that began last year resulted in the transfer of the records in January, according to one person familiar with the conversations. Another person familiar with the materials said Trump advisers discussed what had to be returned in December. People familiar with the transfer, like others, spoke on the condition of anonymity to reveal internal details.

The Archives has struggled to cope with a president who flouted document retention requirements and frequently ripped up official documents, leaving hundreds of pages taped back together — or some that arrived at the Archives still in pieces. Some damaged documents were among those turned over to the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol by a pro-Trump mob.

“The only way that a president can really be held accountable long term is to preserve a record about who said what, who did what, what policies were encouraged or adopted, and that is such an important part of the long-term scope of accountability — beyond just elections and campaigns,” presidential historian Lindsay Chervinsky said.

From a national security perspective, Chervinsky added, if records and documents are not disclosed, “that could pose a real concern if the next administration is flying blind without that information.”

[T]he recovery of documents from Trump’s Florida estate is just the latest example of what records personnel described as chronic difficulties in preserving records in the Trump era — the most challenging since Richard Nixon sought to block disclosure of official records, including White House tapes.

All recent administrations have had some Presidential Records Act violations, most often involving the use of unofficial email and telephone accounts. White House documents from multiple administrations also have been retrieved by the Archives after a president has left office.

But personnel familiar with recent administrations said the Trump era stands apart in the scale of the records retrieved from Mar-a-Lago. One person familiar with the transfer characterized it as “out of the ordinary. … NARA has never had that kind of volume transfer after the fact like this.”

[W]hile the law requires that presidents preserve records related to an administration’s activities, the Archives has very limited enforcement capabilities. The Presidential Records Act operates on the basis of a “gentlemen’s agreement,” as one Archives official phrased it.

Stephen Gillers, a New York University law professor and constitutional scholar, along with other legal experts point to the potential for enforcement that could take place via federal records laws. But several said they thought such action would be unlikely.

“There is a high bar for bringing such cases,” said Charles Tiefer, former counsel to the House of Representatives who teaches at the University of Baltimore School of Law.

“[I]f there is willful and unlawful intent” to violate the law then the picture changes, he said, with penalties of up to three years in jail for individuals who willfully conceal or destroy public records.

“You can’t prosecute for just tearing up papers,” he said of Trump. “You would have to show him being highly selective and have evidence that he wanted to behave unlawfully.”

Well, what about this, professor? The Post continues, ‘He never stopped ripping things up’: Inside Trump’s relentless document destruction habits (excerpt):

One senior Trump White House official said he and other White House staffers frequently put documents into “burn bags” to be destroyed, rather than preserving them, and would decide themselves what should be saved and what should be burned. When the Jan. 6 committee asked for certain documents related to Trump’s efforts to pressure Vice President Mike Pence, for example, some of them no longer existed in this person’s files because they had already been shredded, said someone familiar with the request.

Does this get you to the requisite intent, professor? Sure sounds like criminal destruction of evidence and obstruction of justice to me.

Early in the administration, the torn paper became such a problem that the administration officials responsible for records management went to then-White House counsel Donald McGahn and then-deputy White House counsel Stefan Passantino, who handled ethics issues, to urge them to remind Trump and other senior West Wing staff about the importance of preserving documents to comply with the records act.

A former senior administration official said Trump was warned about the records act by McGahn, as well as his first two chiefs of staff, Reince Priebus and John F. Kelly, who lamented to allies that Trump would “rip up everything,” according to a person who heard his comments. Passantino also warned other aides about preserving documents.

Priebus urged aides not to put what he called “crazy” documents on Trump’s desk — articles, for instance, from far-right websites spouting conspiracy theories, according to a person with direct knowledge of his request. He told others that Trump would read them and sometimes tear them up.

“He didn’t want a record of anything,” a former senior Trump official said. “He never stopped ripping things up. Do you really think Trump is going to care about the records act? Come on.”

Problems with records preservation persisted throughout Trump’s term and became particularly acute at the time of the transition to the Biden administration.

[P]eople familiar with Trump’s conduct said it ran far deeper than occasionally skirting up against the boundaries of the law.

“The biggest takeaway I have from that behavior is it reflects a conviction that he was above the law,” said presidential historian Lindsay Chervinsky. “He did not see himself bound by those things.”

Former aides said Trump was haphazard in what he ripped, often tearing up papers that were not classified or even particularly sensitive. Some said they viewed it more as a quirk and not a deliberate attempt to avoid public scrutiny, in part because he was so indiscriminate with what he tore.

[T]he habit dates back to the former president’s time as a businessman, when he used email extremely rarely. Cohen said that Trump seemed to enjoy the actual process of ripping paper, especially if he did not like the contents of the memo.

“When something irritated him, he would tear the document,” Cohen said. “The physical act of ripping the paper for Donald was cathartic, and it provided him a relief, as if the issue was no longer relevant. Basically, you rip the piece of paper and you’re done — that’s how Donald’s brain works.”

The practice continued into the White House. Aides jokingly referred to “The Boxes” — large boxes filled with reams of paper that Trump often traveled with. Two people familiar with the boxes said they contained a true miscellany of paper — physical newspapers, articles, memos, briefing books, a media summary from the day including printed screenshots of cable news headlines — and that Trump would often rifle through them on long flights.

* * *

Trump’s troubling habit became the focus of internal concern early in his administration, one former Trump official said, when records personnel noticed that a range of official documents logged as going to the Oval Office or the White House residence were not being returned to be filed in accordance with White House record-keeping rules.

When staffers first started going to look for these missing records — which spanned a range of topics, including conversations with foreign leaders — they sometimes found them in a pile of ripped paper in the Oval Office or the White House residence.

Is this what happened to any notes of his meetings with his Russian handler, Vladimir Putin? Trump and Putin’s Cone of Seclusion:

The Washington Post’s Greg Miller reported Sunday that President Donald Trump’s confiscation of the translator’s notes from a one-on-one conversation with Russian President Vladimir Putin in 2017 was “unusual.” This is incorrect. It was unprecedented. There is nothing like it in the annals of presidential history.

It is also truly unusual that Trump failed to bring in a note taker, along with his translator, during his meetings with Putin, as almost every other president has done when meeting with foreign heads of state since the end of World War II. Usually the note taker is an official or aide with deep background in the subject under discussion.

There are good reasons for presidents to bring a note taker with them to such meetings. First, they want a record of what was said, both to remind themselves later of what happened and to confirm or dispute some later account of the meeting, either by the foreign leader or some reporter. Second, the president’s national security officials want to know what was said so that they can orient policy accordingly. Third, historians value these notes, once they’re declassified, as a record of behind-the-scenes U.S. foreign policy.

But on other occasions, torn documents were found in classified burn bags, which are used to dispose of documents, according to one former Trump White House official. Records personnel would routinely dump the contents of burn bags on a table and try to puzzle out which of the torn documents needed to be taped together and preserved, the former official said.

Burn bags, which resemble paper grocery bags, are available throughout the White House complex. There are two types, for classified and unclassified material, and different requirements for each in determining what can be destroyed, experts said. The classified bags are marked with diagonal red stripes.

Both types of bags are ultimately destroyed, but the mechanism for how they are destroyed and safeguarded is different. There were regular “burn runs,” in which classified bags would be collected from offices and sent to the Pentagon for incineration.

Grossman said that Trump’s chaotic approach to handling physical documents leaves gaping holes in the historical record, not to mention being disrespectful to the archivists and general public.

“We don’t know how much of it was or was not successfully taped back together,” Grossman said. “Also, how much did the taxpayers pay to have a bunch of highly qualified archivists sit at a desk and tape things back together?”

“For a president to just wantonly tear things up is just a little shocking, that there’s not even a little egotistical thought about legacy,” Chartier said.

Depending upon the nature of the document, i.e., relevant to Robert Mueller’s investigation, or relevant to the two impeachment proceedings, or relevant to the January 6 Committee, this could constitute criminal destruction of evidence and obstruction of justice, far more serious than the Presidential Records Act.