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This morning’s latest on Trump’s seemingly pervasive destruction and theft of government documents and classified material is that White House officials periodically found the toilets in the White House residence clogged with wads of flushed paper, which they believed — reasonably enough! — were government documents the President had tried to destroy. This revelation comes from Maggie Haberman’s forthcoming Trump book “Confidence Man.” Axios has the scoop. Because of course it does. Mike Allen described this as adding “a vivid new dimension to his lapses in preserving government documents,” which struck me as a generous way to describe it.
We’ll get back to what appears to be the flagrantly criminal theft and destruction of government documents. But let’s focus on something less consequential but still quite interesting. Are you excited to buy Haberman’s book? Well, cool your heels. It doesn’t come out until October. I can’t think of a pre-release or excerpts from a book ever coming out almost a year before publication. The logic makes perfect sense. This is the time for Trump destruction/flushing government documents stories. Putting out some scoops from the book now builds anticipation, gets more publicity and also stakes Haberman’s claim to the story in case someone else was about to break it.
To be clear, I’m not suggesting anything untoward about this pre-release. It makes perfect sense. It’s just releasing things so far in advance starts to seem a bit unwieldy or unsustainable if you have chunks of a book circulating almost a year before it comes out.
In any case, let’s leave book publishing strategy to Haberman and her agent. None of these revelations about Trump are surprising, if they are also more florid and graphic than one might have anticipated. Above I called this “flagrantly criminal.” I didn’t mean that as a throwaway phrase. Compliance with the Presidential Records Act has tended to be an administrative or organizational concern. Disagreements have focused on notes or token gifts a former President might reasonable deem his own rather than the President’s. The whole process has previously been left to good faith administrative negotiation between the former President and the National Archives. None of what we’re hearing here falls into that category.
Current reporting suggests that lots of classified material was shipped off to Mar-a-Lago when Trump left the White House. The National Archives recovered 15 boxes of material that included some of that. Do we really think there’s not more? The government tends to overclassify. But as long as this is the system we have and such misuse and misstorage is frequently the subject of investigations, this seems clearly to merit an investigation.
There’s an extra dimension to questions about Trump’s use of classified material. A President can’t really get in trouble for their management of classified material because the President is ultimately the one who decides what’s classified. If he reveals something that’s classified and gets in trouble, he can just reclassify it as unclassified. It’s really that simple. It’s good to be President. A former President cannot do that. So Trump doesn’t have that escape hatch.
But that’s not even the biggest issue. The White House has plenty of housekeepers and janitors. There are also services and procedures for destroying materials that are lawful and appropriate to destroy. There is simply no innocent explanation for literally tearing up government documents or flushing government documents down the toilet in the portion of the White House reserved as the President’s family’s private apartment.
What I’m trying to capture here is that under the Presidential Records Act there is a penumbra of actions that can be reasonably judged as subject to good faith disagreement. There is a penumbra of lax or careless preservation which is subject to criticism or even investigation but also clearly not malicious. Crumpling up government documents and flushing them down the toilet can only be malicious and criminal under the terms of the law. It is definitionally willful.
We should be clear that this toilet-flushing story is so far only based on Haberman’s reporting. And even that reporting says White House staff assumed they were government documents. So let’s leave open the possibility that that report doesn’t pan out or can’t be confirmed. It hardly matters at this point. There is abundant and unrebutted reporting that Trump routinely tore up government documents. The fact that White House aides were in some or even many cases able to retrieve these documents and tape them back together hardly matters. This isn’t a matter of judgment calls or sloppiness. This is willful and deliberate destruction of government records for the purpose of concealment. Under the terms of the PRA this seems flagrantly criminal.
Are there enforcement provisions? Absolutely. The Presidential Records Act has penalties of up to three years in prison for willful efforts to conceal or destroy public records. The Post spoke to Charles Tiefer, former counsel to the House of Representatives and now a law professor, who noted that the bar for prosecution is high.
Here’s a passage …
Stephen Gillers, a New York University law professor and constitutional scholar, along with other legal experts point to the potential for enforcement that could take place via federal records laws.But several said they thoughtsuch action would be unlikely.
“There is a high bar for bringing such cases,” said Charles Tiefer, former counsel to the House of Representatives who teaches at the University of Baltimore School of Law.
Typically, he said, records preservation proceeds by mutual agreement with the occupant of the White House, staff and archivists. “But if there is willful and unlawful intent” to violate the law then the picture changes, he said, with penalties of up to three years in jail for individuals who willfully conceal or destroy public records.
“You can’t prosecute for just tearing up papers,” he said of Trump. “You would have to show him being highly selective and have evidence that he wanted to behave unlawfully.”
Some former Trump aides say they do not believe Trump was acting with criminal intent.
“I don’t think he did this out of malicious intent to avoid complying with the Presidential Records Act,” one former Trump White House official said. “As long as he’s been in business, he’s been very transactional and it was probably his longtime practice and I don’t think his habits changed when he got to the White House.”
I take Tiefer’s point. You’re talking about almost limitless amounts of paper a presidency generates. You can’t be criminalizing every encounter with a document. But c’mon. It doesn’t cut it to say he got used to destroying documents in his private business.
You can’t be prosecuted on the basis of press reports. But if these reports are even broadly accurate they can’t be random. He needs to be shown being highly selective? Do we think he tried to flush or tear up all his presidential records? And if this isn’t willful — again, assuming the descriptions are broadly accurate — what would be willful? You don’t destroy documents for any reason other than the desire to keep them secret. And by the express terms of the PRA that’s illegal.
