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What could the Mar-a-Lago search mean for Trump legally?

Legal experts disagree on whether Trump could be barred from public office if charged and found guilty of taking classified material to Mar-a-Lago

The FBI searched former president Donald Trump’s Mar-a-Lago Club on Aug. 8 as part of an investigation into whether presidential documents were mishandled. (Video: Blair Guild/The Washington Post)

Former president Donald Trump routinely ripped up papers while in office — and upon leaving the White House, took more than a dozen boxes of official records with him to Florida (including documents clearly marked as classified).

Now, as part of a federal investigation, the FBI has conducted a court-approved search of Trump’s residence at his Mar-a-Lago Club, over concern that Trump had not returned all of the documents, The Washington Post reports.

The search warrant reveals that the FBI found top-secret information there while looking for evidence of the violation of three potential crimes, including part of the Espionage Act.

If Trump were to be charged and found guilty of willfully hiding or destroying confidential and classified materials — a big if — some legal experts say he could be barred from being president again, depending on which law he broke. Other experts disagree.

What we know about the Justice Department probe so far

Earlier this year, the National Archives recovered 15 boxes of White House records from Mar-a-Lago and saw that some of the documents were marked “classified.” The agency asked the Justice Department to investigate, and in April, The Post reported that federal prosecutors were looking into it.

By May, the Justice Department began asking former White House aides about the boxes. They also convened a grand jury, a significant escalation in the investigation, and the grand jury issued a subpoena to learn more. Over the spring, members of Trump’s legal team searched through a storage area and turned over several items that they thought might count as presidential records, Trump lawyer Christina Bobb said.

Then in August came the search at Mar-a-Lago by FBI agents. Government authorities were concerned that Trump had not handed over all the classified material he had taken out of the White House, The Post reported — and they were worried some of the material at Mar-a-Lago related to nuclear weapons.

For the FBI to search someone’s home — let alone a former president’s — requires the government to show an extraordinary amount of evidence that it has reason to believe a crime has potentially been committed. Attorney General Merrick Garland said that he approved the request for a search warrant and that evidence was presented to a federal judge, who signed off on a court order approving the search.

The search warrant, first published by the Wall Street Journal, asked for permission to search “all storage rooms, and all other rooms or areas within the premises used or available to be used by [the former president] and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate.”

FBI agents found and took around 20 boxes of items, including photos, handwritten notes and a pardon for Trump ally Roger Stone, the Wall Street Journal reported. According to the Journal, some of the information stored at Mar-a-Lago was so secret that it’s meant to be reviewed in government-secured facilities.

The Post reported that 11 sets of documents were marked classified and that four were marked top secret, the ultimate classification level.

“These are the types of documents that would make most of us quiver to hold,” said Barbara McQuade, a former U.S. attorney, “let alone retain unlawfully.”

Could Trump, or anyone, be charged with a crime?

Possibly. The search warrant raised the question of whether Trump or someone close to him may have violated federal laws against hiding or keeping defense-related information, including the Espionage Act. That law makes it illegal to harbor defense-related information if you’re not supposed to have access to it.

There are a number of ways to violate this part of the Espionage Act, legal experts say. At the highest level, there’s selling secrets to a foreign government — “what the lay person would think of as plain old treason,” said Jack Sharman, who served as special counsel to Congress during the Whitewater investigation. On the low end, government officials have previously pleaded guilty to much lesser crimes under the Espionage Act, like having the information in their possession when they shouldn’t have.

We don’t know what specifically made the federal government worry that this law may have been violated. But Sharman said he thought it was fair to assume that “the issue is probably less that President Trump was about to sell nuclear secrets to Vladimir Putin, and probably more a concern of: Has he retained material that is classified that he should not have?”

One key element of breaking this law is intent — “that the defendant had reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation,” McQuade said. The government was able to show a judge enough evidence of intent to get this search warrant approved. “That’s a very serious allegation of disloyalty to the United States.”

The warrant also cites another federal crime: Willfully trying to hide or destroy official documents. It’s punishable by up to three years in jail — and by disqualification from holding public office. Violation of this statute requires a willful intent to take or hide or destroy the documents. Prosecutors would have to prove that Trump or those around him knew what they were doing was wrong and that they did it anyway.

If he’s charged and found guilty, could Trump be barred from office?

Some legal experts think that if Trump could be barred from running for president again if he’s found guilty of hiding or destroying official documents. That’s because relevant law regarding public documents says that a violator “shall forfeit his office and be disqualified from holding any office under the United States.”

“There could be constitutional challenges,” said Jeffrey Jacobovitz, a prominent trial attorney in Washington, “but the statute seems to be clear on its face.”

Marc Elias, a prominent Democratic lawyer, pointed to this statute when calling the search “a potential blockbuster in American politics” in a Twitter post on Monday night. He later followed up by saying there would probably be “a constitutional challenge to the application of this law to a president.”

That’s because the Constitution sets the qualifications for president, and nowhere does it say that being convicted of a crime — including one involving public documents — would bar someone from holding office. “A statute cannot supersede that,” said McQuade. And the relevant part of the Espionage Act doesn’t bar violators from holding public office.

What is the Presidential Records Act?

Another law Trump could be accused of breaking is called the Presidential Records Act. It requires Trump to preserve his records and phone calls pertaining to his official duties as president.

Every president has violated the Presidential Records Act in some way, such as by using personal phones for texts or emails, for example, presidential historian Robert David Johnson said. But Trump might be the most egregious violator of the law in its 44 years of existence, Johnson said: “Since [Richard] Nixon, there is no example of a president just pretending the law doesn’t exist.”

Trump’s actions have been on a whole other level. According to Post reporting, he tore up hundreds of documents — perhaps more — indiscriminately. His aides used burn bags to destroy documents rather than hand them over for preservation. The New York Times’s Maggie Haberman reports he flushed documents down the toilet.

This is all after White House lawyers explicitly told Trump about the law requiring that he preserve documents.

Trump previously issued several statements about these actions, denying there was any contention between him and the National Archives.

And on Monday, Trump said in a statement that the FBI search was inappropriate because he had been “working and cooperating with the relevant government agencies” — on what, he didn’t say.

Why preserving documents is so important

At the end of the president’s administration, officials must hand over official documents — typically amounting to tens of thousands of pages — and tapes to the federal government. That can include national security briefs, handwritten notes, daily presidential logs and calendars, emails and faxes, and phone logs. The law also requires that presidents and their staffers take “every practical step” to preserve all this.

The archivists at the National Archives oversee this whole process. The National Archives culls the documents and decides which ones to preserve, which ones can become public, and which ones should be private or redacted, based on potential national security concerns or other reasons. A president can destroy a document only after receiving permission from archivists to do so.

The law also set up a system for people to appeal to the National Archives for a record that was redacted. Johnson said he goes to battle with the National Archives regularly for documents and that he often loses.

Why the law is important

All presidents since the 1930s have preserved a sizable chunk of their records, often to be displayed in their presidential libraries. But it wasn’t until 1978, after Nixon tried to keep many of his documents private, that Congress passed a law codifying the practice that presidents must preserve all historically relevant material. Here’s more on how the law came to be.

Without it, presidents themselves decided which records to share with the public. And, thus, they shaped history in the way they wanted it to be told. Nixon’s library originally portrayed the Watergate scandal only as an attack on Nixon, rather than as an abuse of power. (The Nixon estate lost a 20-year litigation battle to keep the more damaging parts of Watergate out of his presidential library.)

“It’s a better society when the public has access to documents that are produced on the public’s behalf,” Johnson, the historian, said. “So what both Nixon and Trump did, they are really striking at the heart of the definition of transparency.”