For the ones who demand Trump be charged for violating the Presidential Records Act - sober thoughts
From yesterday PBS NewsHour
(snip)
Chief Washington correspondent Geoff Bennett
For more, let's bring in Chuck Rosenberg, a former United States attorney and senior FBI official. And a DOJ referral, as I understand it, doesn't necessarily mean that there will be an investigation. And you handled such cases as a federal prosecutor. Do you see a compelling case here or not?
Chuck Rosenberg, Former U.S. Attorney:
First, Geoff, you're exactly right. Other agencies of government can make referrals to the Department of Justice, but it's up to the Department of Justice, exclusively, whether or not it investigates and prosecutes. So, if the National Archives or any other agency believes a violation of the law was committed, they ought to make a referral. And then the Justice Department will decide. Has there been a violation of the law, of the criminal law? That's a hard question. Let's take it one at a time. With respect to the Presidential Records Act, that law doesn't have a criminal provision. It doesn't even have an enforcement mechanism. But it requires a president to preserve their records, not for the president, but for archivists and for historians, for all of us, for citizens. Those records belong to us, not to the president.
Geoff Bennett:
What about the potential classified information?
Chuck Rosenberg:
The president of the United States, any president, is the primary consumer of intelligence information. He is the ultimate customer. He also has the authority to classify and declassify documents. So, even if documents were found that are classified, it would be very difficult, exceedingly difficult, for a federal prosecutor to prove that Mr. Trump or any other president didn't just wave their hand over the documents and say, I now declassify you.
In order to prove a criminal case of mishandling or retaining classified information, you would also have to essentially prove a negative, that that didn't happen, that the documents were properly classified, and that President Trump took the documents in a classified condition, he mishandled them, and retained them. That's a very difficult criminal case, given that the president has ultimate classification and declassification authority.
(snip)
With respect to the Presidential Records Act, again, even though it has no enforcement mechanism, a president takes an oath of office at the beginning of his term to faithfully execute the laws of the land. That includes provisions, laws, statutes with enforcement mechanisms and without. That includes civil laws and criminal laws. And so maybe it only matters to me, but it matters a lot that, by failing to abide the Presidential Records Act to preserve documents, to turn them over, to not tear them up, or perhaps flush them down a toilet, then you are not abiding by the Presidential Records Act or your oath to faithfully execute the laws.
(snip)
There is a federal law that makes it a crime for a custodian of records, somebody who has ownership of the records, possession, custody, to destroy them or remove them. It's not clear to me that he automatically violated the statute when he tore up those records. A violation would be a felony, Geoff. But here's the problem. That statute, found in Title 18 of the United States Code, requires that the person who violated it acted intentionally. And that doesn't mean he intentionally tore the documents. That means that he tore the documents intentionally to violate the statute. It's not impossible to prove, but it's not as easy as it might appear at first blush to some people.
https://www.pbs.org/newshour/show/how-trump-may-have-violated-the-presidential-records-act
The above discussion starts at the 2:00 mark
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