‘Release the documents now!’ Trump encouraged the disclosure of the FBI search warrant
In messages posted on his Truth Social platform, Trump wrote, “Not only will I not oppose the release of documents ... I am going a step further by ENCOURAGING the immediate release of those documents. Release the documents now!”
The Justice Department request is striking because such documents traditionally remain sealed during a pending investigation. But the department argued that the public was entitled to the FBI’s side about what prompted Monday’s action at the former president’s home.
Although they haven’t released the warrant, sources have told several media outlets that it’s part of an investigation into the handling of presidential documents by Trump, including classified ones.
Trump's son, Eric, told Fox host Sean Hannity that “the purpose of the raid, from what they said, was because the National Archives wanted to, you know, corroborate whether Donald Trump had any documents in his possession”.
The National Archives, charged with collecting and sorting presidential material, said that at least 15 boxes of White House records were recovered from Trump's Mar-a-Lago resort (in the image), including some that were classified.
“It is a federal crime to remove classified documents wrongly. And so if you are filling out that affidavit, and you have to list the crime, you can list that as the crime”, said Elie Honig, a former federal and state prosecutor to CNN.
The penalties for the removal of official records include disqualification from holding any federal office. So Trump’s plans to run for president again in 2024 could collapse.
Specifically, the law in question, Section 2071 of Title 18 of the United States Code, makes it a crime if someone who has custody of government documents or records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies or destroys” them.
If convicted, defendants can be fined or sentenced to prison for up to three years. In addition, the statute says, if they are currently in a federal office, they “shall forfeit” that office, and they shall “be disqualified from holding any office under the United States.”
So if Trump were to be charged and convicted of removing, concealing, or destroying government records under that law, he would seem to be ineligible to become president again.
However, the law briefly received a close look in 2015, after it came to light that Hillary Clinton, then widely anticipated to be the 2016 Democratic presidential nominee, had used a private email server to conduct government business while Secretary of State.
Some Republicans argued that the law should keep Clinton out of the White House. However, several legal scholars noted that the Constitution sets eligibility criteria for who can be president, and argued that Supreme Court rulings suggest Congress cannot alter them.
The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but grants no such power for ordinary criminal law.
A former federal judge then decided that the analysis was “spot on” and Clinton was never charged with any crime related to the use of the server.
Marc Elias, a Democratic lawyer who served as general counsel for Clinton’s campaign, tweeted that while any conviction under Section 2071 might not ultimately bar Trump from seeking the presidency again, a legal fight over it would still be important.
However, the extraordinary move to search the home of a former president raises the stakes for the Justice Department and comes as Trump's legal problems continue on multiple fronts.
The Justice Department has two known active investigations connected to the former President, one on the effort to overturn the 2020 presidential election on January 6, 2021, and the other involving the handling of classified documents.
The request to release the warrant is now with a judge. It’s unclear at this point how much information would be included in the documents, if made public, or if they would encompass an FBI affidavit that would lay out the reasons for the search.
The FBI has been reached by several media outlets, but has refused to comment on the search warrant or on what documents they might have found.