Classified Documents & the FBI Search of Mar-a-Lago

Episode Notes

Transcript

J. Craig Williams: Before we get started, we’d like to thank our sponsors Embroker and Posh Virtual Receptionist.

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Jason R. Baron: No record whether is classified or unclassified or potentially subject to an executive privilege that a former president could assert or attorney-client, no record at all should have been on the premises of Mar-a-Lago. Every record, every presidential record should have gone to the national archives at the moment by the end of the Trump presidency.

Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Southern California. I write a blog named May It Please the Court and I have two books out titled ‘How to Get Sued’ and ‘The Sled’. Well on August 8, 2022 FBI agents entered the Mar-A-Lago residence of former President Trump in search of classified documents that were allegedly taken from the White House. Shortly after the search was executed US Attorney General Merrick Garland held a press conference announcing that he had approved the search warrant for Trump’s residence and in addition, filed a Motion to Unseal the warrant.

Well, now that we have it, the FBI says it removed 11 sets of classified documents including some documents that were marked as Top Secret and meant to be only available in special government facilities. So what does that mean for the former president? Well today on Lawyer 2 Lawyer we will discuss the FBI’s recent search for classified documents at Mar-A-Lago, we’ll take a look at the Presidential Records Act, the role of the National Archives and Records Administration and the penalty for mishandling those White House records. And to help us better understand this issue we are joined by Jason R. Baron Professor of the Practice at the University of Maryland’s College of Information Studies. Previously, Jason spent 33 years in federal service, including as a trial lawyer and senior counsel at the Department of Justice where he acted as lead counsel in landmark cases involving the preservation of White House email. He was also the first appointed Director of Litigation at the National Archives and Records Administration. Jason recently appeared on CNN’s New Day program and in a piece for the Washingtonian discussing today’s topic. Welcome to the show Jason.

Jason R. Baron: Thanks very much, Craig, pleasure to be here.

J. Craig Williams: Thank you. Can you give us a little bit of background about the National Archives and Records Administration and its responsibilities as it relates to the Presidential Records Act?

Jason R. Baron: Well, the Presidential Records Act was passed in 1978 and it applied to all future presidents from Ronald Reagan on. the Act informs the president of his records management responsibilities for his term in office. But when a president leaves office, the legal custody of all of the records of the White House goes to the archivist of the United States on behalf of the National Archives. The National Archives and Records Administration is a federal agency that has as its mission record-keeping responsibilities and guides for the entirety of government but it also maintains presidential libraries and all White House records that come into its legal custody after a president leaves office.

J. Craig Williams: Who do the records actually belong to while the president is in office and he’s — like right now Biden is generating a bunch of different records. So they belong to President Biden or do they belong to the people? 

Jason R. Baron: This is a great question. Under the Presidential Records Act things changed. Historically from George Washington up through Richard Nixon, presidents themselves owned their records, they’re basically private papers that they could take home with them and do with what they wish. Because the Presidential Records Act was forward-looking, it didn’t include Carter and Ford, but after Ronald Reagan on the records of the White House are the American people’s records. They’re not a president’s record. So President Biden, not his records. Former President Trump, not his records. They go as I said in the legal custody of the National Archives, they are stored there both paper records and increasingly hundreds of millions of electronic records and they are accessible under the Freedom of Information Act after a little bit of time passes after a presidency. So it’s definitely the American people’s records.

J. Craig Williams: Right now if we wanted to go back and take a look at some of the presidential records in terms of the time that they become available, what records would we able to look at?

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Jason R. Baron: So, the statute itself allows the archivist five years after a president leaves office to essentially collect and organize records that have come into the legal custody of NARA at the National Archives. But after that time, you can file a FOIA request and archivists are opening records irrespective of litigation or FOIA request or anything else. And so going back in presidential libraries as far back as Herbert Hoover and Franklin Roosevelt, well, those records are open. As you get increasingly more recent presidents, there’s a certain percentage of records that haven’t yet been opened yet because there’s so many millions and tens of millions or hundreds of millions of records and only a smaller staff at the archives and presidential library dedicated to them.

President Obama opted to have all of his records digitized and that project goes on and so they will be available both just with being opened through NARA as well as for Freedom of Information Act request. But it’s really very important that NARA functions both as a preservation body, its mission is preservation but also ensuring that there’s access to historical records and that includes White House records.

J. Craig Williams: So we heard a lot about President Trump’s tendency to rip up records and throw them away and flush them down the toilet. Is that legal? And what do we do about that?

Jason R. Baron: So it’s definitely not consistent with the Presidential Records Act and frankly it does raise questions in many people’s minds as to whether it’s a violation of the Criminal Code in various respects to destroy government records, the White House records. It’s certainly something that is unusual and needs to be seriously looked at. In terms of what one does about it, I must say that the Presidential Records Act itself allows presidents to basically manage their collection of materials without judicial oversight. There’s been a number of cases that had tried get at presidents to comply with various aspects of record keeping laws and they’ve been brushed back by the courts on standing principles, that is just the president cannot be subject to suit. But in the larger sort of court and public opinion and congress, whatever there are obviously oversight that is possible if scandals arise and White House counsel is involved in responding to them. But beyond that, it’s extremely unfortunate to hear stories of a president destroying or mutilating or ultimately removing records.

J. Craig Williams: When it comes to scandals, we have a lot to talk about probably too long for this podcast as we’ve talked about beforehand. But you have a president here who kind of had a shocking, I say shocking in the sense of unusual. I’m not aware of any president’s house that’s been under a search warrant before for public records. What are your thoughts about how this whole thing came about? The search warrant into Mar-A-Lago?

Jason R. Baron: Well, it’s all public reporting. I don’t have a line into the actual people that have been on the ground this. The archive staff is extraordinary and at some point after January 20, 2021 when the archives inherited these vast amounts of records from the Trump White House, there must have been a determination that’s some key records that were well known and reported on were not found or there’s some queries about them and unsatisfactory answers. I’m speculating here but records like what former President Trump called his love letter from the North Korean dictator and others like the great Sharpie incident about hurricane, and maybe others that are really well known. They didn’t seem to be present in any of the collections which usually have finding aids from the White House Office of Records Management or otherwise.

So, very expert people probably noticed some anomalies early on and started to have conversations through I’m sure the general counsel’s office and high-level people at the National Archives with the former president staff. “Hey, what’s going on? We don’t see these records. Do you have them?” I don’t know the tenor of those conversations We can all speculate but at some point, the archives was successful in having 15 boxes of records sent back to them from Mar-A-Lago. And at that point it seems from public reporting, it seems pretty clear–

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–that the archivist looked at the materials in the boxes, made inventories and saw that a number of those materials were classified at various levels. And that set off alarm bells. They contacted the FBI and from there the FBI engaged in further conversations, including not just conversations but a subpoena for records at Mar-A-Lago which from public reporting apparently was not responded to in any substantive way. And that all is the background to a search warrant. And this is an extraordinary circumstance.

Never before has a search warrant been ginned up for a former president. And the entire incident is truly unfortunate. I have said repeatedly in recent days that no record whether it’s classified or unclassified or potentially subject to an executive privilege that the former president could assert or attorney-client, no record at all should have been on the premises of Mar-A-Lago. Every record, every presidential record should have gone to the National Archives at the moment by the end of the Trump presidency. It’s incredible to me that there were 15 boxes or additional boxes that were found of materials.

J. Craig Williams: It is incredible. Well, Jason, at this time, we’re going to take a quick break to hear a word from our sponsors, we’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by Jason R. Baron, he’s professor of the practice at University of Maryland’s College of information studies. Right before the break we were talking about kind of the absolute nature of presidential records and Trump himself has there’s been recently statements that he’s made that he’s going to severely enforce government records and that was kind of on the heels of his complaints about Hillary’ s emails, he also signed into law new revision act that increased the penalties for the type of thing he’s just done and he just described. Take a leap for a moment, let’s talk about what the enforcement is going to be here. We had Rosenthal’s who are executed, we’ve had people recently put into jail for long periods of time, speculate away here, what do you think is going to happen?

Jason R. Baron: Right. Well, this is something that truly is speculative because none of us know what the Department of Justice next moves are, but it’s been certainly widely discussed that there are various statutes that are play, statutory provisions under Title 18 of the US Code, the Criminal Code that relate to the removal of records whether they’re classified or not, and the removal of records that involved national security concerns. And that provision doesn’t necessarily line up with top secret, secret classified because it was made before the present-day classifications are in place. But there are several statutory, provisions, that talk about the removal improper removal of records and while no prior president has been caught up in discussions about whether they violated those provisions, those provisions have been used in a number of other cases of individuals that we all know.

 Sandy Berger was caught removing documents. They were copies of documents but they’re still documents from the National Archives in connection. I mean, he put them in his pants and took them out of the building and it was quite something. And he ended up pleading out to a misdemeanor on that. There are other instances involving David Petraeus and John Deutch the former CIA director, and Ollie North and John Poindexter, all of whom were indicted for having removed materials many of which were classified from a government agency.

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And so there are instances where the statute has been invoked. And so there’s president here for doing that and how it will play out here. I do not know.

J. Craig Williams: It will be interesting to see. Well, you mentioned that this is one of the first times that if not the only time that a president’s home has been under a search warrant, what’s the historical significance of what we’ve been talking about of this particular action?

Jason R. Baron: Right. Well, I’m glad you said that because I think all of us who have worked at the National Archives, we are amazed of the brazenness of what’s occurred here of taking out records from the White House and not placing them into the National Archives custody. In my experience, no president has acted in this fashion before. We need to step back and ask whether there should be some measure of greater oversight when there are presidential transition so that this never happens again. And there have been a number of proposals put forward to empower the archivist to have a greater oversight of the process between a November election and January 20th. And so I certainly support those proposals. Beyond that, one can’t legislate against any kind of criminal conduct that could be imaginable. These events have been, they truly are — what were what we’re living through now is truly of historical import and will be part of the history of our country.

J. Craig Williams: What is the significance of maintaining these public records? I mean in law school I remember we always talked about the social policy behind the law. Why do we want to maintain these records? What’s the importance of them?

Jason R. Baron: Well, it really goes back to James Madison who is one of our founding fathers. He wrote a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance. What he’s saying is that the people have a right to understand what their government is all about. And in more recent times the words accountability and transparency come to mind. There needs to be a way for all of us to understand what each agency of the federal government is up to and also in historical perspective what the White House has done during its years in terms of its actions, policies, how people talk to each other and the development of policies that affect all of us.

So, the Freedom of Information Act and other related sunshine statutes are a means at ensuring that Madison’s vision is still alive. All of that fundamentally though turns on whether agencies and whether the White House keeps adequate and proper documentation of its activities. And the Presidential Records Act requires a president to implement records management controls and other necessary actions and taking steps to ensure that his deliberations, decisions, policies that reflect his duties, his as official duties are all documented. And so it’s important to have a complete record that will then ensure transparency.

J. Craig Williams: You know, the history of the Presidential Record Keeping Act started in 1978 with the Presidential Records Act and I’m old enough to remember the 18 missing minutes of tape that Nixon was accused of and of course the Act was not in effect then. Was it that situation that generated the presidential records act? How did it come into being? 

Jason R. Baron: Yes, you’re exactly right. That the abuses of power that were found in the Nixon presidency, there were articles of impeachment. Of course he resigned before he was impeached and resigned in August 1974. But the entire circumstances of Watergate and the criminality of many of his staff convinced Congress to enact a special statue to basically seize records of the Nixon presidency. That enactment of law then led to a broader statute that would affect all presidents going forward and change what we said before which is from personal ownership by presidents to public ownership. So Watergate was a key turning point. You mentioned the 18 ½ minute gap, I must say that with respect to the Watergate tapes, it has occurred to me that President Nixon didn’t have to have tapes at all in his Oval Office. He did a much larger job of that in terms of maintaining tapes–

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–a broader number of tapes than any prior president. Although there had been some tapes in for example, President Kennedy, Johnson and even Roosevelt of some recordings in the Oval Office. But Nixon’s was you know every day and in multiple places and huge amount of tapes came to that. And he caught himself up and having those materials and it seems to me that the present scandal also is one of the former president’s own making. There was just no need to take any records out of the White House and bring them to his private residence because under the Presidential Records Act, he has the right to review his records of his presidency. The archives would have been just fine with taking requests from the former president or one of his representatives to go look at and review records. Now, if they’re classified, there would have to be special clearances and special procedures and there are restrictions on how to review. But he certainly has that right. So it’s very much a self-inflicted injury.

J. Craig Williams: Let’s talk about that. That’s probably my second most favorite question that I wanted to ask today and that’s the range of excuses that we’ve heard from Trump about why he took it “Oops” to, “I took it home to review for work.” Based on the excuses that you’ve heard or seen or read in public reporting, are any of those valid excuses for taking documents from the White House?

Jason R. Baron: No. I emphatically said that in multiple forums and I said earlier here that no record should have been taken to Mar-A-Lago. The excuses that I’ve heard or the defenses or whatever include that some of them were executive privilege, subject to executive privilege which a president and a former president can certainly assert as shield from public access. And we saw the executive privilege arguments played out spectacularly in a novel way when earlier this year, the January 6 commission wished to have documents from the National Archives that were White House records President Trump objected on Executive Privilege grounds to some of them being released. President Biden said, “Go ahead” and release them. He waved executive privilege and that conflict ended up in court and all the way to the Supreme Court Which allowed the Congress to get those records.

So former President Trump certainly has the right to assert executive privilege on any batch of records. What he doesn’t have the right to do is take the records to out of where they should be which is the National Archives and somehow unilaterally say that they’re privileged and therefore not give it out. In fact, that really can’t be done because the incumbent president by law has a right to weigh in with their opinions as President Biden did in this earlier instance. And so that doesn’t work. Nor does attorney-client work, nor does any other privilege you can think of work as a defense as to why one wouldn’t give back records when they’re found.

You can assert one’s rights as a former president when access requests come in, but there’s a well-known procedures and protocols for doing that and here they certainly have never been followed. So there’s just no excuse. I guess one more thing which would be classified records and here it’s extremely problematic. Not only is there no per se right for a former president to hold classified records, but even in instances where copies of classified records are available to former president, it needs to be in a SCIF, in a Sensitive Compartmented Information Facility. I don’t believe there was a working SCIF up here in during this time period at Mar-A-Lago, And from all public reporting, it seems that classified records were not handled in any way, shape, or form the way that they would be by government staff. And so, the bottom line here Craig is there’s no excuse.

J. Craig Williams: That seems pretty clear. So, it’s time for another quick break to hear a word from our sponsors. We’ll be right back.

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And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by counselor addictions therapist and program director for the Lawyers and Judges Assistance Program at the State Bar of Michigan, Molly Ranns. Right before the break Molly, we were talking about the ABCs and you were going to tell us about what the C stands for.

Jenna Spinelli: My name is Jenna Spinelli and I host another podcast I think you’ll enjoy, Democracy Works. The show explores that the deeper questions of what it means to live in a democracy. We explore topics like political polarization, misinformation, and democracy reform, previous guests include Applebaum, Tom Nichols, Jonathan Haidt and even Wynton Marsalis. New episodes are released every Monday. Find Democracy Works wherever you’re listening right now.

J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m back with Professor of the Practice at the University of Maryland’s College of Information Studies Jason R. Baron. Well, do you think there are any likelihood that there any assistants of President Trump that are going to get involved with any kind of prosecution that arises out of this or at least in dutch with the DOJ from the standpoint of the certainly yeeted pick the boxes up and you know there are other people that work with him that knew what was in those boxes presumably.

Jason R. Baron: I am sure that both DOJ and with the assistance of the FBI will be doing due diligence including interviewing and subjecting staff perhaps to formal process on their role with respect to the documents that have been found at Mar-A-Lago. But beyond that, this is a question that’s really for DOJ and held very close to the vest at DOJ. So I wouldn’t be able to comment any further on that.

J. Craig Williams: Right. If you take the search warrant that we’ve now seen and you trace that back through the process and through DOJ, was it the archivist who generated the issue in the first place? I mean, they were the ones you said in the beginning that reviewed the records and then flagged it. Can you describe the process of how the National Archives would reach out to the DOJ and then generate this search warrant?

Jason R. Baron: Well, as I said, it’s a little bit unknown as to what was the trigger. originally to inform archives staff that they were missing documents. But going down sort of the timeline here as I said there once 15 boxes had been retrieved and look through with classified records and I think at that point from public reporting that the archives contacted the FBI and so an investigation was started. And from there it’s not the role of the National Archives. They can certainly get background to enforcement, the Law Enforcement Authorities and the DOJ but really the ball is then in the FBI’s and DOJ’s court. And so the expertise of the archives is simply in identifying what documents may not be present and any anomalies in the handling of those documents. So it’s a DOJ/FBI show at that point to go forward. And as I said my own standing from reporting is that there was a subpoena that was precedent to the search warrant and if a subpoena wasn’t successful in obtaining additional documents and from reporting if there’s an informant that says there are additional documents at the residence, then it’s quite understandable that DOJ and FBI would resort to having a search warrant.

J. Craig Williams: Well, Jason, it looks like we’ve just about reached the end of our program and it’s time to wrap up with your final thoughts, contact information if you like. So some of the for us please.

Jason R. Baron: Well, I appreciate the opportunity to be here. I think I want to emphasize to anyone listening that I was extraordinarily privileged to work at the National Archives for 13 years. There are no better civil servants that are out there. They’re completely dedicated to their job and I think it’s a tribute to them that they came forward, they identified the problems here and then let the process work on that. And I think we also think that we’re living in extremely interesting times with respect to the actions here and of historically important. And I think there’s a need for some legislation to try to tighten things up, so that there’d be greater oversight. So with that, I at the University of Maryland if you simply Google me Jason Baron Maryland you’ll get my personal page and I’m happy to talk to anyone who’s listening about Records issues. It’s been my life for decades and so appreciate the opportunity Craig to be on the program.

J. Craig Williams: Well, you’re quite welcome and thank you. It’s been tremendously interesting discussion. I think as you said great historical significance. Well, for our listeners I would like to thank our guest Jason R. Baron, it has been a pleasure having you on the show.

Jason R. Baron: Thank you so much Craig.

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J. Craig Williams: We are on new ground. We’re certainly going to be making history with the outcome of this situation. And Jason is right not to speculate about what’s going to happen. We have pretty known severe penalties on this and by known I mean President Trump himself is railed on the issue and has increased the penalty for the violations that it appears he’s been in violation over at least at this point been accused of. So, hang on to your hats, we’re in for a ride.

Well, for our listeners if you’ve liked what you heard today, please rate us on Apple podcast or your favorite podcasting App. You can also visit us on the legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thank you for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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