Donald Trump’s main defense when it comes to his indictment for shocking and dangerous mishandling of highly classified documents so far seems to be that the Presidential Records Act says he did nothing wrong. The only problem is that Trump is claiming that the Act means the opposite of what it says, and after years of warnings from NARA, he should know it.
The Presidential Records Act (44 U.S.C. §2201-2209) says that all White House records related to government business are public property, and that when the president and vice president leave office, those documents must be transferred to the National Archives for preservation.
Trump’s claims about the PRA
Trump has repeatedly made false claims about the PRA. In a speech after Trump’s court appearance following his federal indictment, Trump falsely claimed that “Under the Presidential Records Act — which is civil, not criminal — I had every right to have these documents,” he also said on Truth Social that the PRA “TOTALLY EXONERATED” him, and in March in an interview with Sean Hannity, he claimed that the PRA gave him “the right to take stuff.”
Trump should know the truth by now
Long before his indictment, Trump violated the two key parts of the PRA — and both times, NARA alerted Trump’s team.
Presidential records must be preserved
Trump’s failure to comply with the PRA began with his long standing habit of shredding documents—at times simply leaving them on the floor of the White House. As a result, aides had to tape papers back together in order to comply with the Presidential Records Act, though not all records survived this process. NARA’s general counsel sent a letter to White House lawyer Stefan Passantino in 2018 asking just how many documents Trump tore up and raising other reported issues with records preservation.
Presidential records are public property
Trump failed to turn over 15 boxes of records to NARA after his presidency, including a letter from Kim Jong Un and the letter President Obama left him. CREW got records back from NARA, including an email from May 2021 from the NARA general counsel to three Trump aides pointing out “several problems” to Trump’s team. In January 2022, NARA recovered the boxes from Mar-a-Lago.
Presidential Records Act and the indictment
After these warnings, Trump should have known at least the basics of the PRA. Nevertheless, he held onto boxes of classified documents rather than turn them over to NARA. That alone would have been a violation of the PRA and other laws — but what he did was even worse.
According to Special Counsel Jack Smith’s federal indictment, Trump kept highly sensitive documents about military and nuclear capabilities of foreign countries and US military contingency plans in some truly absurd places at Mar-a-Lago. Not only that, but he allegedly showed them to civilians without security clearances, while indicating that he knew he wasn’t allowed to. When the DOJ subpoenaed him, Trump indicated to his lawyers that he wanted to cover up his possession of the documents.
The seriousness of those allegations go way beyond violating the Presidential Records Act, which is why he was charged with (among other things) willful retention of national defense information, conspiracy to obstruct justice, corruptly concealing a document or record, and false statements and representations, all of which are felonies.
Nor does the PRA provide Trump any defense to the federal criminal charges he’s facing. Although presidents are given broad latitude over their handling of government records while they are in office, that latitude ends once they become private citizens. At that point, neither the PRA nor any other law gives former presidents impunity to willfully retain government records, let alone highly classified ones.
Unlike President Clinton’s notes for his memoir, which Trump has tried to use as a defense, these were not personal documents — they came from government agencies like the Central Intelligence Agency, the Department of Defense, the National Security Agency. And even if they had been personal records, Trump would have had to sort them out before leaving office. Trump himself even cited a judge’s opinion that contradicts his argument during his speech claiming exoneration: “the decision to segregate personal materials from presidential records is made by the president during the president’s term.”
Trump is claiming that the PRA means he had a right to hold on to any documents he wanted and to “negotiate” with NARA for years about the documents. On each point, that’s the opposite of what the law says.
Repeated warnings both during and after his presidency about his violations of the Presidential Records Act build the case that Trump is lying about the law to mislead the public and distract from the serious criminal charges he is facing from the Department of Justice.