Ex-presidents can’t take documents
This week, former President Donald Trump asked a federal court to appoint a special watchdog to review the documents seized earlier this month by the FBI from his Florida home, Mar-a-Lago, during a courtauthorized search.
Trump and his supporters have repeatedly claimed that the search of Mar-a-Lago was unprecedented, with the implication being that the document seizure therefore must be improper. But in truth, the search was appropriate and reasonable, and historically, this situation isn’t as unfamiliar as Trump would have us believe.
The country experienced a similar controversy 48 years ago. That previous legal battle between a former president and the government concerned Richard Nixon and — spoiler alert — it did not end well for Mr. Nixon.
For those who weren’t around in 1974, or don’t remember the Nixon dispute, here’s a refresher: Nixon resigned in disgrace in August 1974 in reaction to the Watergate scandal. Upon resigning, he asked his former staffers (who now worked for President Gerald Ford) to send him the White House papers and tapes generated during his presidency — including the Watergate tapes, a series of secret audio recordings between the former president and administration officials, his family and White House staff. Nixon claimed these materials were his personal property.
At the time, I was a junior lawyer at a Washington firm and was asked to prepare a complaint on behalf of the American Historical Association, the American Political Science Association and the Reporters’ Committee for Freedom of the Press, asking a federal judge to prevent the government from giving Nixon the records. Although our team of lawyers managed to secure a temporary injunction, freezing the transfer of papers and tapes to Nixon, we expected a long-drawn-out battle with the former president.
Congress short-circuited that possibility in December 1974 by passing the Presidential Recordings and Materials Preservation Act. Signed into law by President Ford, the legislation, which only applied to Nixon, required all materials related to the constitutional and statutory duties of the former president and his White House staff, as well as anything related to the abuse of governmental power, to be retained by the National Archives and Records Administration. Nixon fought the law, claiming it was unconstitutional, but his legal battle ended in 1977 when the
Supreme Court rejected his final appeal. In 1978, Congress passed the broader Presidential Records Act, which established public ownership of all presidential records and required every president beginning with Ronald Reagan to archive their official records with the National Archives and Records Administration. The act was signed into law by President Jimmy Carter.
Comparing the Nixon and Trump controversies, Nixon actually comes out looking better. After all, Nixon didn’t take any documents. He just asked for them and was rebuffed. Moreover, Nixon could claim that the law and prior practice were arguably unclear; early presidents were believed to have taken their comparatively meager records home, although every modern president since Franklin Delano Roosevelt had immediately turned his White House papers over to the government once a successor was inaugurated. None of that is true with Trump. He has no ground to claim uncertainty after the Nixon precedent and the Presidential Records Act.
Republicans have criticized the FBI search of Trump’s Florida estate, claiming
the move was politically motivated and a federal overreach. Republican House Minority Leader Kevin McCarthy, for example, issued a statement pledging to launch an investigation while Republican Missouri Sen. Josh Hawley demanded that Attorney General Merrick Garland “resign or be impeached.”
But contrary to Republican claims, the FBI and Department of Justice handled the matter exactly as they are supposed to. After months of repeated requests from the National Archives and Records Administration to the Trump team for missing documents went nowhere, the agency reached out to the Justice Department to investigate whether the former president had violated the Presidential Records Act. The Justice Department did its job to investigate, which eventually led to subpoenaing Trump and to the FBI executing a search warrant.
The reality is plain and simple. Trump took government property home and resisted returning it.
Imagine if a former CIA agent or former government scientist decided to keep top-secret government documents and declined to return them. Who, on
either side of the political aisle, would be OK with that? Of course, everyone would want and expect the Justice Department and the FBI to do everything within their legal power — including exercising a search warrant if necessary — to get our property back. That is exactly what these two agencies have done.
To be clear, the answer to who owns presidential documents does not change whether those documents are classified or not. As the Presidential Records Act makes clear, all documents of any president’s administration belong to the United States. No government official or employee can walk off with those documents on their way out.
Like Nixon 48 years ago, but with even less basis, Trump is now in the midst of fighting the law, and like his disgraced predecessor, he too will lose his legal battle. Indeed, only Donald Trump could make Richard Nixon look good by comparison.