FBI raid on Donald Trump Mar-a-Lago home: the law, the action, the politics

The unprecedented FBI search of a former President’s residence comes at a time when the US Department of Justice is putting the heat on Trump in a separate investigation into his alleged attempts to overturn the result of the 2020 presidential election, and his role in the subsequent January 6 attack by his supporters on the US Capitol.

Donald Trump Mar-a-Lago raid: What were the agents looking for?

The FBI had not, until late on Tuesday evening India time, released an official statement detailing the reasons for the search. But the Justice Department has been investigating the former President’s handling of White House records, after the US National Archives stated in February that it had found classified information in 15 boxes of records that it had retrieved from Trump’s lawyers.

The New York Times reported that the focus of the search seemed to be on material that Trump had brought to Mar-a-Lago after leaving office. CNN said the agents were seeking to examine the boxes of documents that had been taken from the White House, and to determine where they were kept. CNN quoted the former President’s son Eric Trump as telling Fox News that the “the purpose of the raid…(was to) corroborate whether or not Donald Trump had any documents in his possession.”

The FBI’s investigation might reveal a violation of the Presidential Records Act, which requires all official presidential documents to be preserved.

What is the Presidential Records Act?

In 1978, the US Congress passed the law that made the President’s documents that were previously considered to be the office-holder’s property, into the property of the US government. According to a Congressional Research Service report cited by The New York Times, the law was introduced after it emerged that President Richard Nixon had attempted to destroy White House recordings that documented his response to the Watergate scandal.

The Presidential Records Act requires that all official documents of the President, apart from personal documents like diaries and journals, be given to the US National Archives at the end of the presidential term. The National Archives has the authority to select which documents need to be preserved, made public, or redacted, The Washington Post reported. Those that are considered suitable are made available to the public 12 years after the President leaves office.

Has Donald Trump violated the law?

The House Oversight Committee, the chief investigative committee of the lower house of Congress, had earlier said that Trump’s handling of documents seemed to constitute a “serious violation” of the law, The NYT had reported in February.

Other than taking classified documents owned by the US government, Trump has also been accused of destroying documents and using his personal cell phone, instead of the White House switchboard, to allegedly conceal his role in the January 6 riot.

On August 8, Axios published photographs of paper flushed down toilets in the White House, allegedly bearing the handwriting of Trump. The pictures are part of a forthcoming book, Confidence Man, by The NYT correspondent Maggie Haberman. She told Axios that White House staff occasionally found wads of paper in the toilet, which was “an extension of Trump’s term-long habit of ripping up documents that were supposed to be preserved under the Presidential Records Act”.

However, both The NYT and The Washington Post reported that even if he is found guilty of violating the law, there is no real enforcement mechanism in place to punish him. What could instead cause trouble for Trump was a federal law called 18 US Code 2071, reported Vox.

Under this law, anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away” federal documents, can be fined or imprisoned for up to three years or both. Such a conviction would put Trump’s potential presidential run in 2024 under a cloud.

The back part of former President Donald Trump’s Mar-a-Lago estate in Palm Beach, Florida, on June 26, 2020. Saul Martinez/The New York Times Archive

What are the political ramifications?

In his statement, Trump said the FBI action amounted to “prosecutorial misconduct”, and claimed he was being targeted by the Democratic Party so that he is unable to run for President in 2024. FBI Director Christopher Wray, who approved the search, was appointed by Trump in 2017.

Many Republican Party leaders condemned the FBI action as politically motivated, and suggested that they could retaliate against Democrats and enforcement agencies if they came to control Congress after November’s midterm elections. Republican House Minority Leader Kevin McCathy vowed to “conduct immediate oversight” of the Justice Department and an investigation against Attorney General Merrick Garland if the party gained control of the House.