Here’s why the public owns Trump’s presidential records

Trump said in a post on his Truth Social platform that he “would not oppose the release of documents,” adding, “I am taking this one step further by ENCOURAGING the immediate release of these documents.”

What not to expect

The most important thing, by the way, will not be unsealed.

« The most detailed document here is the affidavit, » said Elie Honig, a CNN legal officer. analyst and former federal prosecutor, during an appearance on CNN. « It’s the document that can usually be 20, 40, 100 pages, where prosecutors come up with the chapter and the verse, here’s all of our evidence that gives us probable cause. »

Neither Trump nor his lawyers have seen this document, and Garland is not talking about unsealing it.

Enough to calm the tumult?

Giving the public access to the warrant will show that the Justice Department and the FBI are moving within the bounds of the law, despite what Trump says.

After a few years of the relatively monotonous and undramatic Biden administration, it was a major boost in the Trump era – when the country’s government periodically seemed on the verge of implosion – with the former president blaming the forces of the order of the country apparatus of a « witch hunt ».

Return String at Fox and you’ll hear the unproven theory that the DOJ is on a fishing expedition.

« There’s this flurry of activity related to January 6, and then we’re told that this other investigation has absolutely nothing to do with January 6, » said Michael Mukasey, former attorney general for George W. Bush, who appeared on Fox after Garland. Remarks. « It’s tough, and yet they put 30 FBI agents on it to come in and seize documents that everyone probably knew was there. »

There is a mysterious witness

There are also new reports that a tip from a witness sparked the search after officers recovered boxes of documents in June based on a grand jury subpoena.

Mick Mulvaney, Trump’s former chief of staff, surmised that the witness would have to be someone very close to the former president to even know of a safe at Mar-a-Lago.

He added: « If you know where the safe is and you know the documents are in 10 boxes in the basement, you’re pretty close to the president. »

The criminal investigation began with concerns about missing documents raised by the National Archives, which made a criminal referral to the Department of Justice after discovering highly sensitive documents among materials recovered from Mar-a-Lago in January.

The 15 boxes contained documents that were part of Special Access Programs (SAPs), a classification that includes protocols to significantly limit who would have access to the information, according to a source familiar with what the Archives discovered in the boxes. That led to FBI talks with aides to grand jury subpoenas for the court-authorized search and seizure of documents this week.

Why are these documents public property?

That Trump apparently tried, despite a subpoena and negotiations, to keep documents from his presidency away from the National Archives is – as with much of Trump’s presidency – completely unprecedented.

As for why the public has presidential documents, it’s a relatively recent development that, like so many brakes on the presidency, has its roots in Watergate.

Historian Timothy Naftali, a New York University professor and former director of the Richard Nixon Presidential Library and Museum, told me the whole story. His words, edited for length and flow, are italicized, and I’ve added some captions.

After leaving office, Nixon wanted his tapes and papers

A few days after Nixon’s resignation, a moving truck arrives in front of the White House. And the moving van was there to pick up Nixon’s papers and his tapes.

And the Ford administration thought, « Oh, my God, what are we going to do? »

So they went to their legal counsel’s office, and they said, « Who owns the Nixon tapes and papers? » (Naftali paraphrases here and above.)

Before Nixon, presidents had their papers

The head of the Office of Legal Counsel at the time was a lawyer named Antonin Scalia. And Antonin Scalia said that presidents do. It’s our tradition in the United States, it goes back to George Washington that the president owns his papers, and their papers include everything that goes to them and everything that’s generated by their staff.

There was no distinction between public and private documents. It was very similar to how the King and Queen of England control documents.

There is nothing in the Constitution about this, and there was no law.

Congress has not been involved because it is an executive matter, and public opinion has never been such as to force presidents to consider their documents public.

Nixon traded access to his papers for his pardon

Richard Nixon was within his rights to say, OK, they’re mine and to bring them back to California.

The Ford administration realized it had a problem because if it gave the documents and tapes to Nixon, people might see it as a cover-up.

The Ford administration therefore sought an agreement with Nixon to ensure that the documents could be available for court cases, and that he could not destroy them for a certain period of time.

This agreement was part of the agreements that led to the rehabilitation. Richard Nixon had to agree to this for Ford to grant him his pardon.

Nixon agrees. Ford gives forgiveness.

Congress stepped in and passed legislation to seize Nixon’s documents

And then Congress finds out and says, « Oh, my God, no, no, no, no, no. Yes, it’s true that the Ford administration is going to make sure that the documents needed for court cases are available, but then Nixon can destroy anything that hasn’t been subpoenaed. We don’t want that. (Naftali paraphrases here.)

And so Congress passed a law called the Presidential Recordings and Materials Preservation Act of 1974 which effectively seized all Nixon records and deemed them public property.

Nixon’s papers are seized. It was a very big problem

This was unprecedented in United States history. Absolutely unique. No presidential material had ever been treated this way. All previous presidents – themselves or their estates – considered presidential documents to be private documents. This includes when the CIA gave national security stuff to presidents. All that.

Just because something is private doesn’t mean presidents have been allowed to show it off at their golf club.

Either way, Congress does that. And Nixon’s tapes are seized and Nixon’s materials are seized. They don’t go to San Clemente (where Nixon lived in California).

Nixon sues Congress. He also wanted to be paid

Nixon cries foul. He says, « Hey, wait a minute. Why am I treated any different than all the other presidents? »

Nixon said, « I own them. It’s not fair. It’s unconstitutional and contrary to the spirit of our tradition. » So he went to court and said, “You are taking away my property. In fact, you’re taking a property away from me.

He both wanted to control these documents, but he too, if he were to lose them, he wanted compensation. Basically, he argued, « Look, these documents are worth something. And in retirement, I might need that money. So you owe me money for taking my property. » (Naftali paraphrases here and above.)

The Supreme Court on the side of Congress

What the courts had to determine was, OK, what really is the difference between private presidential documents – because everyone agreed that there were certain documents that were private – and public documents.

There was a series of cases, and these cases laid the foundation for the definitions of public and private, which would later be enshrined in law by the Presidential Records Act of 1978.

Congress decided to pass a law establishing what was public and what was private in terms of presidential records.

This means the public owns the presidential records

That means they belong to the American people. The American people may not be allowed to watch them yet, because they are classified. But at least ownership means presidents couldn’t destroy them.

That’s why it was important. Presidents then had to treat some of the products of their administration as belonging to someone else, and so they could not simply destroy them at will.

Thus, the Presidential Records Act is a product of the Watergate period. And it’s a product of the American people and Congress accepting the powers of the presidency and concluding that the presidency was too strong and that presidents had taken advantage of areas of the law that the Constitution did not touch.

Is an FBI search worth it?

Naftali argued that all of this must have been explained to Trump many times during and after his presidency, and therefore there was no legitimate excuse to take the documents.

Furthermore, Naftali argued that the government will provide safe storage so that the former president can access his documents at any time.

He had less clarity when I asked if whipping Trump supporters and unifying the Republicans behind him was worth the FBI searching Mar-a-Lago to protect the documents under this law:

This judgment should not have been based on politics. It should have been based on an understanding of appropriate action, given the potential crime. And I’ll reserve judgment until I see what they were looking to salvage.

There is no doubt that the US government – ​​we, all of us, because national security is in all of our interests, have a stake in securing and protecting classified information.

And the question is why the government has concluded, after discussing with President Trump’s representatives for a considerable amount of time, that our national security is somehow compromised, perhaps endangered, by the lack of full support that the Department of Justice received from Donald Trump and his representatives.

I would like to warn anyone who loves this country not to make quick judgments about the political costs of holding Donald Trump accountable.

In the modern era, no former president has gone to war against our Constitution. Richard Nixon disagreed with the handling of his documents, and he went to the Supreme Court and accepted the result. He did not wage war on our Constitution.

This story has been updated with additional developments.