Worse, after the National Archives discovered his illegal retention and he was asked nicely to hand the records over, he turned over some but not all of them. He could and should have turned over everything, but he didn't.
He has no defense for illegally retaining records. He has no defense for failing to comply in full with the Archives' polite request.
What he has is a manifest pattern of disregarding his obligations under the law.
The Department of Justice learned he still illegally held records and, understandably, the department could have little confidence he would comply fully with another "request". The only way to ensure that the records made their way back to their legally authorized custodians was for the federal government to take charge of the work.
The government first had to get permission from a federal judge. No federal judge will be eager to authorize a warrant for the FBI to enter the home of a former president. The government has to provide a hell of a good reason, or reasons. Evidently, it did.
That's the backstory for the FBI entering Mar-a-Lago under the terms of a search warrant.
In response to the FBI search (and resulting seizure of multiple boxes of documents), Trump has claimed either that he declassified any or all of the classified records he held or that there was no need for FBI agents to barge in and search, he would have been happy to comply with a request.
Trump's claims are nonsensical.
First, I very much doubt that declassifying something automatically and by itself gives even an ex-president the right to keep it. There are all kinds of unclassified records to which a private citizen has no right of access. As a private citizen an ex-president ought to have no right to have someone else's FBI file or Social Security number, for instance. So even if everything he held was declassified, he still almost certainly didn't have a right to keep it all.
Second, declassification doesn't just happen with a snap of a president's finger. As Asha Rangappa, Norman L. Eisen, and Bradley P. Moss explain in a detailed and careful piece for Just Security, declassification only takes effect after a careful and deliberate process:
If Trump did in fact order the declassification, he still needed to make sure his staff took the necessary next steps to modify the classification markings on the documents before he could actually handle and store the records (as a private citizen) as if they were unclassified. Under security classification rules, a classification marking on a document has to be treated as valid and binding unless and until a subsequent marking replaces it. Appropriate government staffers would have needed to cross out the classification markings in the headers and footers, and stamped “declassified” on the record noting when it was declassified, by whom and under what authority. Since that does not appear to have been done with the classified documents reportedly identified to date, the documents remain classified and had to be treated as classified for handling and storage purposes.No matter what Trump claims, if the documents he held didn't go through the process described above, the documents remained classified. If they remained classified, he had no legal right to hold them since he is no longer president. (Even while president it would have been illegal to hold those records at Mar-a-Lago unless the resort had the right secure facilities. It's not clear that Mar-a-Lago did.)
As for Trump's plaint that all anyone had to do was to ask for the records the FBI found and seized, he doesn't deserve the benefit of the doubt.
No honest, patriotic, and law-abiding person who attains the presidency will leave office believing he or she has a right to the records that cross the Resolute Desk; legal counsel will make clear that the law prohibits that. At most, one might imagine that personal notes of no consequence to the nation could be retained, and even that decision would have to be vetted by qualified experts.
Trump didn't hold onto just a couple of notes with sentimental value, either. The first round of records recovery from Mar-a-Lago in January netted fifteen boxes of documents. He showed no sense of responsibility, no sense of his obligation to the country by holding onto so much material he knew he had to right to keep.
It turned out that wasn't even all the material he had. Yet another DOJ visit in June sought (and got) the "voluntary" return of yet more records.
This time, though, Trump swore that was all he had. The New York Times reports that a Trump lawyer "signed a written statement in June [after the DOJ visit] asserting that all material marked as classified and held in boxes in a storage area at Mr. Trump’s Mar-a-Lago residence and club had been returned to the government".
It's clear from the NYT piece, which lays out the history of the interactions between the Trump team and DOJ, that the government tried repeatedly to get Trump to cooperate voluntarily.
So when it became clear he still illegally held records after the June visit, it also became clear that he could not be trusted to comply with the law on his own.
His most ardent supporters will say he made a mistake. While that's hard to believe given what we know, it doesn't matter if they're right because it doesn't matter why he didn't return everything when informed of his "mistake" months ago. The bottom line is, he didn't, and neither the law nor the public is required to give him unlimited at-bats. It was time for the professionals to get the job done.
For the umpteenth time, let me ask ardent Trump supporters to picture a different scenario. Suppose Barack Obama had been found to hold dozens of boxes of sensitive and classified information from his time in office in his basement. When asked nicely to return them, he only sent back about half. Multiple followup visits revealed more material each time. Would you be willing to extend to him the courtesy of asking nicely forever? Of course not. You'd assume that he willfully failed to comply. Ex-president or no, you'd have no patience for an apparent willful disregard for the law.
(Trump, incidentally, has made the incendiary claim that Obama did take a ton of records, illegally, when he left office. The National Archives has flatly declared Obama did not do that. If you take the word of a serial liar like Trump over that of the National Archives — which, if pressed, will back up its statements under oath, something Trump has shown a marked disinclination to do — then we can't have a real discussion because you live in an alternate reality. I hope you find your way back to the real world.)
(By the way, the Republican politicians vehemently condemning the FBI, DOJ, and Attorney General Merrick Garland know all of this. The likes of Kevin McCarthy, who are threatening retribution against Garland and DOJ if Republicans take back the House in November, are contemptible, snivelling Trump toadies unfit to hold office.)
So, Trump illegally, willfully, and tenaciously held onto many documents from his time as president.
The big, hairy, unanswered question is, why?
The best case he could make for himself would be disorganization: "I had all this crud lying around the White House the night before the movers were due, so I ran around just dumping it into boxes. I figured I'd sort it out later."
It's an amusing image, to be sure, but do you buy it? I don't.
Trump's known for tearing up and disposing of documents once he has read them. A man with such a distaste for paperwork wouldn't burden himself with dozens of boxes of it, even if he never had to lift even one of those boxes himself. That is, he wouldn't burden himself with it unless he thought it would be worth his while.
Mar-a-Lago is visited by all sorts of people. While Trump was president, Mar-a-Lago was visited by a woman, a foreign citizen, bearing a thumb drive containing malware. Why did she attempt to enter? (She was stopped.) The obvious inference is that she was trying to spy — on Trump, his staff, and/or other guests — for her country.
Has anyone kept track of who has visited Mar-a-Lago since Trump left office?
The Secret Service's job is to protect Trump and his family from physical threats, not to safeguard whatever sensitive information might be on the premises. That information would only be as safe as Mar-a-Lago's private security could make it, and in any case, the information would be in Trump's apparent custody so he could do what he liked with it.
It's possible, then, that Trump has sold classified and/or sensitive information.
This is a staggeringly alarming possibility. It's one that we could not have imagined of any previous president. It's one that I frankly would rather not imagine even of Trump.
Yet an objective appraisal of Trump's behavior while in office (indeed, for his entire adult life) makes it impossible to discount that possibility. He has never hesitated to put his own interests above everyone else's. For example, it was unbelievably dangerous for him as president to have private talks with Vladimir Putin with no other American present, as he did at least once. (Putin's translator did double duty.) Subsequent to another Putin chat he confiscated the American translator's notes and forbade the translator to discuss the conversation. Those actions were not in the public interest; they endangered all of us by giving Putin incredible leverage over Trump. Trump has never explained why he acted with such breathtaking recklessness and indifference to the national interest.
Trump also, of course, engaged in more public and obvious displays of self-interest during his time in office, funneling millions of taxpayer dollars to his own businesses by, for instance, requiring the Secret Service to pay for accommodations at his properties. However, the Putin episodes demonstrated that Trump was perfectly willing to endanger the nation's security, too, if he thought it best suited him.
So we are faced with the real possibility that a former president of the United States knowingly and willfully sold, or wanted to sell, national-security secrets.
For all our sakes I hope he didn't. However, his behavior in office (and before) proved that he is selfish and immoral enough that the idea can't be disregarded.
