Former US President Donald Trump was indicted on June 13 in a Florida federal court on charges of illegally keeping classified documents in his possession after he had left office. As this was an alleged violation of federal law Trump became the first former US President in the country’s history to be produced in court for an alleged criminal offence relating to breaking a federal law. Trump pleaded not guilty. Leaving the court, after he was given bail, Trump condemned the Biden administration. This is because it was a special counsel appointed by the US Department of Justice who had investigated these allegations against Trump and concluded that he was in breach of the law and had to answer charges in court.
While greater information on the kind of documents that Trump retained in his possession would be known as the case proceeds, media reports indicate that some of them pertained to defence related subjects. Naturally, as these documents are classified their details may not be publicly disclosed anytime soon. It is also being reported that once the concerned US government department—US Archives—became aware that some secret documents were retained by Trump after he left office, he was asked to return them. However, he did not cooperate and hence the need was felt by the Biden administration to proceed further in this matter.
There are legal as well as political aspects relating to investigations which are ongoing on some issues against Trump, including the riots of January 6 in the premises of the US Congress. The same holds true about the criminal cases lodged against Trump. The first one was in New York in early April on charges that he ordered the falsification of his accounts for payments made to a porn-star for securing her silence. This was during his 2016 campaign for the Presidency. Now comes this second case but it is more serious than the New York one because it deals with security related documents.
Prima facie it is passing strange that Trump finds himself in this mess. This is because official US Presidential Records are required to be handled in a manner set out by the Presidential Records Act (1978) which is administered by the National Archives and Records Administration headed by the US Archivist. Presidential Records, under the Act, are material which is either created or received in the President’s office to enable the President to carry out his ‘constitutional, statutory or other official or ceremonial duties’. The President’s office is not narrowly defined as his personal office but includes all staff in the White House and some statutory bodies that are required to assist the President. The Act also provides that the Archivist is available for advising officials working in the President’s office on any matter relating to the statute. The object of such advise would be to segregate material which can be destroyed during a President’s term and material which is to be considered as the President’s private documents and therefore not within the Act’s purview.
The Act specifically also provides “On January 20th at the end of the President’s final term, the Presidential Records of the Administration are automatically transferred to the legal custody of the Archivist of the United States and the National Archives and Records Administration. The records are eventually housed in a Presidential Library maintained by NARA. The National Archives and Records Administration preserves, reviews, arranges, describes and makes available these records in its role as legal custodian”.
It is noteworthy that the US has such a detailed statutory procedure for handling of sensitive and classified as well as unclassified documents relating to the President. In other countries where there are no specific rules to be followed by the Head of Government or State’s office general rules relating to the handling of classified material are observed and at the time a political leader demits office his official records are handed over to the office of his successor or sent to the concerned government department. Naturally all this has to be done in an accountable manner.
Trump lost the election and ordinarily his staff should have in consultation with NARA followed the requirement of the Act to hand over all Presidential Records to the Archivist. In the case of the Trump Presidency nothing has been ordinary. Indeed, throughout his career, as businessman and later as politician, Trump has shown enormous disdain for conventions, rules and regulations. He continues to do so even after he has been charged in these two cases. This is perhaps he is, as yet, the front runner for the Republican party’s Presidential nomination next year. He has a base of die-hard followers who are unlikely to be adversely impacted because of any legal cases brought against him. Ironically, these cases even if they are decided against him before the Presidential elections which will be held in November 2024 will not legally prevent him from either being a nominee or contesting the election.
Trump and his faithful followers both generally and in politics will do everything in their power to obscure the violation of the Presidential Records Act. They may find it difficult to do so though because it is known that some of the documents which should have been handed over to NARA were found in Trump’s house in Florida. At that stage Trump should have accepted his mistake and cooperated with NARA. If he had done so the Biden administration may have found it politically counter-productive to proceed against him. However, Trump is not one to be sorry for any of his actions. And that is what attracts his faithful followers!
Disclaimer: The views and opinions expressed in this article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.