This post has been updated.
That would be a mistake.
While the Bornstein saga is certainly not shorn of entertainment, I agree with Sam Stein that what he's now alleging is the stuff of scandal. The combination of Bornstein's strangeness and the fact that the bar has been so lowered when it comes to Trump's medical disclosures shouldn't temper that fact. Just as the Stormy Daniels situation seemed trivial and even overly salacious before becoming arguably the White House's biggest legal liability, it would be a shame to relegate the Bornstein show to the side of the stage. It may ultimately come to nothing, but there are real questions here — both for the legal system and for democracy.
As NBC News's report notes, it's not clear whether Trump's bodyguard Keith Schiller, Trump Organization lawyer Alan Garten and another man had authorization to seize the files. Bornstein said he didn't receive a Health Insurance Portability and Accountability Act (HIPAA) release from Trump, who as the patient would need to provide one. A source told NBC that Bornstein was given a note from Trump's then-White House doctor, Ronny L. Jackson, but that wouldn't seem to be sufficient.
The second potential legal problem with the seizure is that, according to Bornstein, Trump's team took his original copies and sized all the records. Those records technically belong to Bornstein, and New York state law says that “unless otherwise provided by law, all patient records must be retained for at least six years.” Experts say that opens up another legal can of worms.
“Generally speaking, doctors own the originals and patients have only a right to obtain copies -- and even then not necessarily copies of everything,” said Mark Hall, an expert on medical law at Wake Forest University. “Thus, it’s possible one could argue that actual theft was involved, if Dr. Bornstein did not hand them over voluntarily or endorse their transfer after the fact.”
Allison Hoffman of Penn Law School noted that, "Some [doctor's] notes and sensitive materials can be withheld to protect a patient. So, even if with more appropriate methods to get files, a patient might not get the full set."
Nicholas Terry of Indiana University's law school agreed there could be legal issues.
“If it was really a 'raid' and the doctor did not give his consent to his property being removed (or was intimidated into giving that consent) then it could constitute a common law claim for the tort of conversion,” said Terry, who emphasized that we don't have all the facts. “Also, I assume if there was any violence or threats then there could be some criminal issues.”
And aside from the legal aspect of all this is the good-government aspect. We have a president who it seems has now repeatedly sought to obscure his medical history. Bornstein also told CNN on Tuesday that Trump essentially dictated his original, hyperbolic doctor's letter that, among other wild claims, said Trump would be the healthiest president ever elected. Later, during an appearance on the “Dr. Oz” show, Trump appeared to deliberately hide — on multiple occasions — that he was taking medication for hair loss (Propecia) and for rosacea. We only found out about those because Bornstein let them slip in a New York Times interview in February 2017. (That interview was followed two days later by the alleged “raid.")
And since Trump has been in the White House, the only word we have on his health care from Jackson, who suggested Trump could live to 200 years old if he had a better diet, used a basic cognitive test that Trump later suggested made him a genius, and seemed to shrug off data showing Trump had a common form of heart disease. Even Obama administration officials defended Jackson at the time, but since then he has seen his nomination to become Veterans Affairs secretary implode over allegations of wrongdoing. That can't help but further call into question his already questionable review of Trump's health.
We also still don't know exactly why these medical records were seized. Was is simply to punish Bornstein-- in which case filing a complaint against him probably would have sufficed -- or was it about something in them? The White House argued Tuesday that this was a routine thing all presidents do, but Bornstein didn't exactly describe a routine scene. He described a reaction to his Propecia disclosure.
"Bottom line: What this all makes me wonder is what the heck is hiding in those records that Trump wants to shield from the public eye," Hoffman said.
It's understandable that Trump would be upset about the Propecia disclosure. But that doesn't necessarily vindicate the “raid,” as we understand it from Bornstein's description. And this is information that we had been led to believe was already provided.
The whole thing suggests Trump hasn't been honest about his health with voters or the American people and, in fact, has gone to great lengths to cover it up — possibly even in violation of the law. That's not good, and if it were any other president this would probably be called a “scandal” right now.