Trump Mar-a-Lago search: What’s the Presidential Records Act?

(NewsNation) — The FBI conducted a search Monday at former President Donald Trump’s Mar-a-Lago resort in Florida.

Sources confirmed to NewsNation the execution of the search warrant is linked to an investigation into whether or not the former president mishandled presidential records related to the discovery of boxes full of White House records that were taken to Mar-a-Lago after Trump left office.

Trump maintains that the search is neither necessary nor appropriate, which presents the question of how presidential records are handled.

The Presidential Records Act from 1978 establishes public ownership of all presidential records and developed a way presidents must manage their records.

Under the act, the president is responsible for the management and keeping of presidential records and must separate personal records.

The act allows the president to get rid of records that no longer have administrative, historical, informational or evidentiary value but only after the views of the Archivist of the United States on the proposed disposal have been made available in writing.

Once a president leaves office, the law requires presidential records to be automatically transferred into the legal custody of the archivist. This applies to the records of all presidents and vice presidents and began with the Reagan Administration.

At the end of January, the National Archives and Records Administration reported that some of Trump’s presidential records that were handed over had been torn up by the former president. NARA reports that records management officials with the Trump administration recovered and tried taping together pieces of ripped-up records.

On Feb. 7, NARA announced that in mid-January they arranged for 15 boxes of presidential records to be taken from the Trump Mar-a-Lago property in Florida to National Archives. They insist the arrangement followed conversations with Trump’s representatives in 2021. The former president’s representatives told NARA they were still searching for additional presidential records that belong to National Archives.

“The Presidential Records Act mandates that all Presidential records must be properly preserved by each Administration so that a complete set of Presidential records is transferred to the National Archives at the end of the Administration,” Archivist of the United States David S. Ferriero said in February. “NARA pursues the return of records whenever we learn that records have been improperly removed or have not been appropriately transferred to official accounts.”  

On Feb. 8, NARA said Trump representatives cooperated with them on securely transporting presidential records to Washington. At this time, NARA maintained that they did not “visit or raid” Mar-a-Lago.

Still, archivist David Ferriero has stressed the importance of the Presidential Records Act.

“The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people,” Ferriero said. “Whether through the creation of adequate and proper documentation, sound records management practices, the preservation of records, or the timely transfer of them to the National Archives at the end of an Administration, there should be no question as to need for both diligence and vigilance. Records matter.”

Could Trump face any punishment in relation to the Presidential Records Act? While it seemingly would depend on what evidence is presented to the Department of Justice, there does not appear to be a criminal provision specific to the act.

Under Title 18, Section 2071 of U.S. Code, anyone who unlawfully conceals, removes or destroys government records is subject to punishment of a fine, up to three years imprisoned or being disqualified from holding any U.S. office.

Former federal prosecutor Andrew Cherkasky appeared on “Banfield” to discuss Monday’s search of Mar-a-Lago, an action he calls seismic. He says in order to satisfy the requirements under the Fourth Amendment, investigators would have to establish belief that a crime took place and that there would be evidence of a crime at Mar-a-Lago.

“I don’t think a judge would have ever signed off on this if the Department of Justice, the attorneys involved, and the FBI agents involved, didn’t tell the judge specifically that they believe they can actually prosecute the crime. Otherwise, it’s not a crime at all,” Cherkasky said.

Regardless, Cherkasky believes Monday’s search sends a message of intention from the FBI.

“I think that the politics of this, and the division that’s going to come from this, is going to be astronomical. Really, what the FBI is doing is signaling once and for all, through the Department of Justice, that they think President Trump or at least those closely connected with him violated the Criminal Code of the United States and that they are interested in prosecuting,” Cherkasky said.

Trump has spoken out about the potential investigation into records, some believed by authorities to be classified.

“These are dark times for our Nation, as my beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents,” Trump released in a statement. “Nothing like this has ever happened to a President of the United States before.”

The search of a former commander-in-chief’s home is unprecedented. Trump has called it “prosecutorial misconduct.”

The FBI and the Department of Justice have not immediately shared a statement on the search.