Former President Donald Trump's recent comments claiming that he has the authority to do "whatever" he wants with classified documents because the Presidential Records Act protects him are "totally inane and upside-down," and can be used against him court, legal experts warn.
Trump justified his handling of classified documents in an interview Wednesday with conservative radio host Hugh Hewitt, misrepresenting the Presidential Records Act and claiming that it protected him from doing whatever he pleases.
"I don't talk about anything," Trump said. "You know why? Because I'm allowed to do whatever I want. I come under the Presidential Records Act… I'm not telling you. You know, every time I talk to you, 'Oh, I have a breaking story.' You don't have any story. I come under the Presidential Records Act. I'm allowed to do everything I did."
But Trump's claims that his retention of dozens of classified documents after leaving the White House were covered under the Presidential Records Act "is a mischaracterization of that authority," Javed Ali, former senior counterterrorism official at the Department of Homeland Security, told Salon.
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"Had President Trump or his team submitted official requests through the NSC or National Archives to declassify those documents after he left office then that would have been a proper utilization of the existing process," Ali said. "The failure to submit such requests and then willful retention of classified documents is one of the reasons Special Counsel Jack's Smith team was able to [bring] criminal charges against President Trump."
Smith's investigation into the Mar-a-Lago documents case exposed evidence that Trump had retained more than 300 classified documents, including some labeled "top secret," at his Florida estate. After leaving office, the former president reportedly took classified materials with him containing intelligence on nuclear weapons programs and information on the nation's defense capabilities.
"At a minimum, they help establish his criminal state of mind with respect to the documents he withheld and his obstruction of justice regarding the retention of those documents"
Trump has denied any wrongdoing in the matter and instead made baseless claims that the Biden administration has "weaponized" the FBI and Department of Justice in an attempt to undermine his 2024 presidential campaign.
He has also continued to defend his actions by inaccurately claiming that he is protected under the Presidential Records Act – a reading of the law that legal experts disagree with.
In a Fox interview that took place earlier this year, Trump criticized the FBI for conducting a search of presidential documents at his Mar-a-Lago. He argued that "he should have been allowed to engage in further discussions with the government over these records saying the 'very specific' Presidential Records Act actually requires extended talks with the National Archives and Records Administration," CNN reported.
But legal experts argue that once a President's term of office concludes, the presidential records become public records, under the PRA.
"The Presidential Records Act was passed by Congress precisely to prevent the kind of thing Nixon tried to do with his White House records by making clear that those records, with the exception of purely personal items, all belong to the American people and are to go to the National Archives, not to an ex-president's mansion and country club like Mar-a-Lago," longtime Harvard Constitutional scholar Laurence Tribe told Salon.
The PRA makes clear that the moment Trump's presidency ended, his authority with respect to the highly sensitive documents he "absconded" with to his Florida resort came to an end, Tribe added.
"He has things upside-down when he invokes that Act, which isn't a criminal statute and confers no immunity from criminal prosecution, to defend his conduct," Tribe said. "If anything, the details of that Act help defeat all his claims with respect to being entitled to withhold top secret documents and national defense documents from the Federal Government."
Former federal prosecutor Neama Rahmani agreed and said that the Presidential Records Act "specifically" applies to presidents. It requires them to transfer records to the archives as soon as they leave office.
"Trump's belief that he 'can do whatever he wants' is dangerous and how autocrats rule," Rahmani said.
Even as the government pressed Trump to return all materials taken to Mar-a-Lago, he ignored the subpoena and engaged in repeated efforts to obstruct the investigators' efforts to retrieve the documents, according to this indictment.
Now, his most recent comments on Hewitt's show can be used against him in the court of law, legal experts said.
"His statements can be presented in court as evidence that he doesn't think the law applies to him," Rahmani said. "Trump lawyers have probably advised him to keep his mouth shut, but Trump is notorious for ignoring his lawyers' advice, which is why he's in this mess."
Tribe added that Trump's comments to Hewitt "constitute virtual confessions" rather than sources of any kind of defense.
"At a minimum, they help establish his criminal state of mind with respect to the documents he withheld and his obstruction of justice regarding the retention of those documents," Tribe said.
