Does Trump have executive immunity?

This year’s Constitution Day P5X on September 16 focused on the 4th Amendment, specifically the protection from unreasonable search and seizure. Ms. Cullen led a presentation on this amendment, the courts’ interpretations of it, and its implications in the ongoing Mar-A-Lago investigation. 

Most of us heard about the investigation when the FBI surprise-raided former president Trump’s Palm Beach resort on August 8, but the controversy over the records has been a thing since January 2021. 

When Trump was transitioning out of office, White House Counsel Pat Cipollone decided the National Archives should have the records, but then someone - likely Trump - had the boxes shipped to Mar-A-Lago instead. In the months since, the National Archives and Records Administration tried to get Trump to return classified documents he took. 

Almost a year later on January 17, 2022, after the Archives threatened to get Congress or the FBI involved, Trump agreed to turn over some of the documents. But the 15 boxes he sent back, which included various types of materials, had no descriptions of their content. And they included records that were clearly classified. 

With that, the Archives referred the matter to the FBI this past February. Trump was reportedly livid when Congressional Democrats learned about the controversy and promised to investigate. Trump’s legal team and the government disputed the FBI’s search for much of this summer. As Ms. Cullen explained during the presentation, the Bureau needed justification to search Trump’s residence. In late June, the FBI issued a new subpoena for surveillance footage. They saw video of people entering and leaving a room at Mar-A-Lago that stored boxes of White House records, according to Trump’s lawyers. The FBI had enough evidence to obtain a warrant and enter the resort a few weeks later. 

Trump and his team’s efforts to slow the investigation are probably in his interest – the FBI is investigating him for three criminal charges, including violation of the Espionage Act. 

But could Trump actually claim some of the documents, or limit other people’s access to them - even though he’s not the president anymore? 

Legally, probably not, because of the Presidential Records Act. Congress enacted the PRA in 1978 in response to former president Richard Nixon’s attempts to destroy presidential records. Previous policy was that presidential records were private property, but this law made clear that they belong to the public, and specified that the National Archives will control them. 

Trump is definitely obstructing the government’s and the public’s access to his documents, and that means obstruction of justice to the FBI. At press time, special master Judge Raymond J. Dearie told Trump’s team “I need some beef” to back up their claims that the documents are privileged. 

If these classified documents don’t excite you, the National Archives is also preserving and providing access to Trump’s copious library of social media content, including deleted posts from @POTUS and @realDonaldTrump. Access them @trumplibrary.gov. 

Sources: https://www.washingtonpost.com/national-security/2022/08/23/trump-records-mar-a-lago-fbi/