There’s an odd subplot to the story of former President Trump and the National Archives.
It involves National Archives records, it involves Trump, and it involves two of his associates: Kash Patel, the former Rep. Devin Nunes (R-CA) staffer and transition-era Pentagon official, and John Solomon, the right-wing journalist who played a role in the first Trump impeachment.
Both Solomon and Patel have leapt to Trump’s defense since last week’s FBI search of Mar-a-Lago, where agents recovered boxes of classified information that the former President unlawfully took from the government at the end of his term and stashed away in the bowels of his South Florida beach club.
Trump designated Solomon and Patel as his representatives to the National Archives in June — an obscure but important role that gave them nearly unfettered access to records from his administration.
Both Solomon and Patel have said that they intended to use their access to publish records from the Trump White House — specifically those having to do with investigations into ties between Trump and Russia during the 2016 election, a topic that remains a sore spot for the former president and his supporters.
Trump spokeswoman Liz Harrington told Politico at the time that the two “will work to make available to the American people previously declassified documents that reveal a clear conspiracy to unlawfully spy on candidate and then President Donald J. Trump — by the FBI, DOJ, and others — the largest state-sponsored criminality in American history.”
And as ABC News and Just Security have pointed out, Patel bragged in the weeks before the FBI searches about intending to release records related to the Trump-Russia investigation — some of them classified.
But here’s the question: which records are we talking about?
Some records were taken unlawfully by Trump to Mar-a-Lago. The content of those documents may be different from those in the bulk archive of records held by the National Archives — the records that Patel and Solomon have access to in their role as Trump’s representatives to NARA.
Solomon and Patel, however, have offered differing accounts about which records they intended to publish.
Solomon issued a statement this week proclaiming that the records taken to Mar-a-Lago were completely separate from those that he accessed at NARA.
“My authorization as a representative to the National Archives with access to the Trump collection has nothing to do with the grand jury investigation, the dispute over documents at Mar-a-Lago, or the FBI search,” Solomon said. “It was granted solely in my capacity as a reporter. I did not access the documents in Florida, seek to access them, or have anything to do with them or the dispute surrounding them.”
Solomon added in the statement that he used National Archives records for one story: a July article that accused the DOJ of “secretly thwarting” an eleventh hour attempt from Trump to declassify and release records relating to the Trump-Russia investigation.
Patel has made similar claims, accusing bureaucrats at the DOJ of blocking Trump’s attempt to declassify federal records.
Patel’s statements about records line up with Solomon’s to a point: he also said that Trump named him as his NARA rep “to try to get these documents out.”
“The timing is interesting, that now all of a sudden there’s a National Archives issue related to this raid at Mar-a-Lago,” Patel said on an episode of his podcast, Kash’s Corner, released on Sunday.
In an appearance with Fox News’ Maria Bartiromo, Patel took it further. He suggested that some of the records at Mar-a-Lago may have been related to “Russiagate,” complaining that the FBI search would render them inaccessible, because they would be evidence in a grand jury investigation.
“Now that this is an ‘ongoing FBI counterintelligence investigation,’ they will come out to the American public and be able to say, ‘ongoing [counterintelligence] investigation, you will never be allowed to see the Russiagate docs, or any other docs that President Trump lawfully declassified,’ and they will hide it from the public,” Patel said.
It’s possible that Patel means that Trump-Russia investigation records held at NARA are now off-limits. It’s not entirely clear, and Patel did not return TPM’s emailed request for comment.
Jason R. Baron, a former director of litigation at NARA and a professor at the University of Maryland, told TPM that Trump would likely be within his rights to publish unclassified records, with basic NARA supervision.
“My understanding is that a former President’s request to review his records in the legal custody of NARA is not generally required to be run by the incumbent White House,” he said. “If a former president’s designated representative has followed all of the proper procedures to obtain access, then unclassified records could be made public by a former President.”
But it doesn’t erase the complete flouting of law that undergirds the entire situation, he added.
“No presidential records should be at Mar-a-Lago. Full stop. This remains true regardless of whether the records are classified, unclassified, subject to executive privilege or any other privilege that has been cited in defense of the records being held at the residence,” Baron said. “Not a single presidential record should be at Mar-a-Lago.”