The FBI Raid on Ex-President Trump
Andrew Hyman
The FBI raided the private home of a former president yesterday, for the first time in history. As Josh Blackman says over at the Volokh Conspiracy blog, “the optics here are stark: the chief law enforcement officer of the Biden administration is searching the home of the front-runner for the 2024 republican ticket.” CNN reports:
The FBI executed a search warrant Monday at Donald Trump's Mar-a-Lago resort in Palm Beach, Florida, as part of an investigation into the handling of presidential documents, including classified documents, that may have been brought there, three people familiar with the situation told CNN.
That’s the ostensible rationale, but how does it match up with the law and its original meaning? There are apparently two sets of issues here: (1) the classification system for preserving state secrets, and (2) preservation of presidential records. The latter seems more problematic for Trump than the former, because the classification system (including declassification) is run by executive order within the executive branch, whereas there is a federal statute about preserving presidential records.
In my view, Trump could have informally or implicitly declassified anything he wanted while he was still president, even on his last day in office as he (voluntarily) walked out the door, and he could have limited that declassification to his own personal use of that information rather than anyone else’s use of it. That’s how the system worked, and what the law was, for better or worse. Law professor Steve Vladeck wrote in 2017 that Congress “has largely abdicated any authority or responsibility for national security classification.” Vladeck was right, and there is no reason why Trump, while in office, had to follow Presidential Executive Order 13526, which had been issued by President Obama in 2009. On the other hand, Vladeck mentioned that the Federal Conversion Act does not turn on whether the information is classified or not. But then we are moving to the subject of presidential documents rather than the classification system, because there is a specific statute addressing that subject: the Presidential Records Act (PRA), which was passed in 1978 and took effect in 1981, available at 44 U.S.C. §§ 2201–2209.
According to the Congressional Research Service, “For most of the nation's history, presidential records were considered the private property of the President.” The PRA says (at 44 U.S. Code § 2202), “The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.” That was a big change. Interestingly, at the same time, Congress preserved private ownership of their own papers.
Executive privilege also plays into all of this, arising under the separation of powers, and there was a lot of discussion about that in the recent 10th Circuit case of Trump v. Thompson. Certainly, presidents before 1981 had more privilege over presidential documents as compared to later presidents who do not have any recognized property right in their own papers. In that way, executive privilege was considerably whittled away in 1978 by the PRA. If there is anything unconstitutional about that termination of property rights mandated by the PRA, it may be because Congress could have maintained a balance of power between the branches by subjecting its own papers to public ownership too, and not diminishing the internal management power of the executive branch only.
Josh Blackman also mentioned an interesting statute, 18 U.S. Code § 2071 which says at part “b” that an official who destroys official documents “shall forfeit his office and be disqualified from holding any office under the United States.” Since Trump is now out of office, he cannot forfeit his office so this quoted material is not applicable to him, it would seem. Part “a” of that statute applies to people who are not officers, and it imposes no disqualification. There’s no need to get into the issue of whether the president is an “officer under the United States” (I believe he is). Professor Matthew Franck wrote a good essay about this in 2015, titled No, a Statute Can't Keep Hillary from Being President. At least, this statute can't.
MICHAEL RAMSEY ADDS: On the last point, there are at least three separate issues: (1) whether Section 2071(b) applies to Trump as a former official; (2) whether Section 2071(b) applies to the presidency, or only to offices created by Congress; and (3) if it does apply to the presidency, whether it's constitutional.
On issue (2), Franck says it shouldn't be read to apply to the presidency, because a statute can't force the President to "forfeit his office" other than by impeachment and conviction. That seems true, but also true of other officers of the United States (per Bowsher v. Synar, Congress cannot remove executive branch officials by statute). So I'm not sure if the forfeiture part of the statute isn't just generally unconstitutional (although forfeiture-of-office statutes do have a history back to the founding era).
On issue (3), Franck says the disqualification part of the statute can't constitutionally apply to the President because the Constitution's presidential qualifications clause is exclusive:
But a mere statute cannot legally disqualify a person from eligibility to the presidency, if he or she possesses the constitutional qualifications. Anyone who is a native-born citizen, 35 or older, who has been 14 years a resident of the country, and who receives a majority of the electoral votes cast for president as certified by the joint session of Congress held to count the ballots (or in the event of no such majority, the one who wins a majority of the states in the contingency balloting of the House), shall be sworn in as president. That is all in the Constitution, and it is not possible for Congress to add the further qualification “and who has not been convicted of felony X.”
As Josh Blackman notes, Seth Barrett Tillman reached a similar conclusion, also in the context of Hillary Clinton's candidacy: Secretary Clinton Can Relax Because Section 2071 Disqualification Does Not Apply to the Presidency.