What we do know about the FBI’s Aug. 8 raid at Donald Trump’s Mar-a-Lago estate is that it was unprecedented. No former president has ever been targeted by such a law enforcement action.
Beyond that fact, however, many questions remain unanswered.
By all accounts, the raid was tied to presidential records that Trump took with him to his Palm Beach resort in February 2021 after leaving office. Critics, at least, say this is a clear violation of federal public records law.
That law is the Presidential Records Act of 1978, which requires that any memos, letters, emails, or other documents related to a president’s duties be preserved and given to the National Archives and Records Administration (NARA) when the president’s term ends.
The Trail Leading to the Raid
The removal of these documents — and the likelihood that they contained classified information — has been known since at least February. On Feb. 18, the NARA reported that it had ongoing communication with “representatives of former President Trump” through 2021 about the information.
NARA said Trump’s representatives responded by transferring 15 boxes of material to NARA, which later revealed that some of the information had been ripped apart and pieced back together. Archivists reviewed the material in its various states of condition, identified some of it as classified material, and informed the U.S. Justice Department.
While the Presidential Records Act is clear about the kinds of communications presidents are expected to preserve, it lacks an enforcement mechanism. But legal experts contend there is a criminal law, Section 2071 of Title 18 of the U.S. Code, that could. That law says anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” could be fined and face three years in prison.
In June, DOJ launched a criminal investigation of Trump based on the classified information he removed, and on Aug. 8, the FBI showed up at Mar-a-Lago with a search warrant.
Federal law enforcement officials obtain search warrants if they want to move quickly and if they think they can find information about a criminal investigation at someone’s residence or business.
At this point, we don’t know what that information might be — DOJ isn’t talking. But it does seem that their interest is about the missing documents and not about Trump’s role in the Jan. 6, 2021, riot at the U.S. Capitol or any other perceived misdeeds.
Questions and Speculation
Speculation is running rampant. The fact that the FBI took the unprecedented step of executing a search warrant at the home of a former president might suggest they suspect seriously incriminating material. They might believe that simply asking for more of the material raises the risk that they’ll never see it.
And of course there is much speculation about political motivations. Trump supporters and Republicans suspect President Joe Biden has an interest in raiding the home of a possible 2024 challenger, although multiple sources say that is not true.
There is also the question of whether Trump could be prohibited from seeking office again under Section 2071. In addition to possible jail time, the law also says anyone who violates it “shall forfeit his office and be disqualified from holding any office under the United States.”
It’s worth mentioning that Republicans also once took a close look at Section 2071 as a potential tool to keep Hillary Clinton out of the White House for her use of a personal email server to conduct government business when she was secretary of state.
Prosecuting under Section 2071 may not succeed, but forcing a presential candidate to litigate it during a campaign would be unprecedented — just like the FBI’s raid.
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