WASHINGTON -- There have been many cases where people have gone to prison for mishandling classified documents. The difference for former President Donald Trump, in the eyes of Sen. Josh Hawley, is that Trump used to be president.
On Wednesday, a former FBI analyst in Dodge City, Kansas, was sentenced to nearly four years in prison for keeping more than 300 documents at her home over the course of more than 12 years at the bureau. She kept them on hard drives, CDs and paper documents. She allegedly had information about Al Qaeda members and activity in Africa.
Former President Donald Trump allegedly kept more than 300 documents at his Mar-a-Lago resort in Florida after leaving office. He kept them in boxes in a ballroom, in a storage closet and in a bathroom, according to prosecutors. He had top secret information about the U.S. nuclear program and the defense capabilities of the U.S. and foreign countries.
“Well, the difference would be, with the former president, is that the Presidential Records Act, as interpreted by courts, allows him to decide what to take with him or not,” Hawley said. “Now, how’s that going to play into this case that they’ve charged, I don’t know. But I’ll just say the Justice Department’s interpretation of the Presidential Records Act now seems to be a lot different than it has been under any other president.”
Hawley, a Missouri Republican, has been quick to cast the Justice Department’s investigation into Trump’s handling of classified documents as a partisan effort to take down the potential Republican nominee for president in 2024.
Over the past few weeks, he’s thrown out several defenses of Trump. He’s mentioned how President Joe Biden’s staff found classified documents from when he vice president in both his garage and his former D.C. office building. A special prosecutor is investigating. He’s mentioned a case where former President Bill Clinton was sued for keeping recordings in his sock drawer.
And he’s mentioned the Presidential Records Act, a law that says a president’s records are largely public documents, with a few exceptions for personal documents. Hawley said the law has wide discretion for a former president to determine what is personal and what is public.
Experts say he’s wrong.
“Senator Hawley is simply wrong on the law,” said Jason R. Baron, the former director of litigation at the National Archives and Records Administration. “Neither former presidents nor FBI agents are allowed to take classified records home with them, and whether they have committed a crime in doing so is governed by the same provisions of the federal criminal code.”
Trump was indicted by a Miami grand jury earlier this month on 37 counts, including the willful retention of national defense information, conspiracy to obstruct justice, withholding a document or record and corruptly concealing a document or record. He pleaded not guilty.
The case is one of several floating around the former president as he campaigns for a second term. Trump is currently the front-runner in the Republican Party — Hawley has said he believes Trump is the inevitable nominee and that the legal cases have galvanized Trump’s support — and most of his presidential opponents have been reticent to criticize him over his looming legal troubles.
Hawley’s argument is that case law surrounding the Presidential Records Act, specifically a case in which the conservative legal organization Judicial Watch sued to get taped conversations between former President Bill Clinton and a biographer, indicates that there is a broad interpretation of what a president can deem their personal documents.
“One would have thought, based on how the courts have interpreted it, that would have a lot of relevance here,” Hawley said. “Because that means he can have those documents because he gets to decide what to take or not.”
Baron said the case law is more limited than Hawley claimed and that it doesn’t support the argument that presidents can decide classified documents are personal.
“It is absurd to suggest that a president can deem classified records or any official records to be his own personal records,” Baron said. “Doing so would undermine the very reason Congress enacted the law in the first place, which was in the wake of Watergate to give ownership of White House official records to the American people.”
Margaret Kwoka, a law professor at The Ohio State University, said she doesn’t believe the Presidential Records Act is the most relevant statute in Trump’s case. She said it wouldn’t supersede the laws about how to handle classified documents or the espionage act. And she said a case about whether Clinton’s tapes were public records wouldn’t have much bearing on Trump’s case, in which several counts deal with obstruction of justice.
“This is a case in which a private litigant was seeking public access to records that they believed should have been put in the National Archives,” Kwoka said. “It’s a far cry from a criminal prosecution, for mishandling of national defense secrets.”
Regardless of the legal arguments, polls show efforts to paint the legal cases surrounding Trump as political are working. A June Quinnipiac poll found that while 51% of Americans believe Trump should be prosecuted, 62% say politics is motivating the Justice Department’s case.
Biden’s own handling of classified documents has served as a frequent example for Republicans who allege the Justice Department is biased against Trump. But Kwoka said prosecutions on mishandling are sought when the mishandling is intentional, like the FBI analyst in Dodge City who purposefully kept documents at her house.
Biden’s staff alerted the Justice Department immediately after finding classified documents in his office and allowed them to search Biden’s home, where they found more in the garage.
“I think the history of these prosecutions shows that they’re really only sought when there’s reason to believe that the mishandling is truly intentional,” Kwoka said. “And so the fact that some classified material may accidentally end up in the wrong files, in other cases, I don’t think has a lot of bearing on this case.”
