by Lawrence O'Donnell
MSNBC
Aug 23, 2022
I write in response to your letters of April 29, 2022, and May 1, 2022, requesting that the National Archives and Records Administration (NARA) further delay the disclosure to the Federal Bureau of Investigation (FBI) of the records that were the subject of our April 12, 2022 notification …
NARA had ongoing communications with the former President’s representatives throughout 2021… which resulted in the transfer of 15 boxes of records to NARA in January 2022… within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel’s Office—affirming a request from the Department of Justice supported by an FBI letterhead memorandum—formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes…
[T]he Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,… if such records contain information that is needed for the conduct of current business of the incumbent President’s office" … Those conditions are satisfied here. As the Department of Justice’s National Security Division explained to you on April 29, 2022:There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials ... among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials … for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting…and take any necessary remedial steps…
We advised you in writing on April 12 that, “in light of the urgency of this request,” we planned to “provid[e] access to the FBI next week,” i.e., the week of April 18… In response to a request from another representative of the former President, the White House Counsel’s Office acquiesced in an extension of the production date to April 29…
It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes… Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then to consult with the former President “so that he may personally make any decision to assert a claim of constitutionally based privilege.”…
President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported “protective assertion of executive privilege.”…
The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.”…
[A] former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.”… [A]n “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.”…
The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” … [T]here is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking.” … Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” …
Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a “protective assertion of executive privilege”…
[T]here is no realistic basis that the requested delay would result in a viable assertion of executive privilege against the incumbent President that would prevent disclosure of records for the purposes of the reviews described above. Accordingly, the only end that would be served by upholding the “protective” assertion here would be to delay those very important reviews…
[T]here is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022…
[T]he former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance.
-- Full text of National Archives letter to Trump on classified documents
MSNBC’s Lawrence O’Donnell speaks to national security attorney Mark Zaid, former federal prosecutor Glenn Kirschner, and former U.S. Attorney Harry Litman about the decision by Donald Trump and his allies to release a letter they received from the National Archives that described the back and forth over the over 700 government documents that were taken to Mar-a-Lago at the end of Trump’s presidency.
Transcript
0:00
[lawrence o'donnell] mark, let me begin with you. from the
0:02
defense attorney's perspective, let's
0:04
assume that
0:06
somehow, donald trump found his way to
0:09
a competent criminal defense attorney in
0:11
this situation. uh, first of all, would you
0:16
have made that letter public? and then
0:18
secondly,
0:19
what does that letter tell you
0:22
about the challenges
0:24
facing donald trump's defense?
0:28
[mark zaid] i didn't understand from the moment i
0:30
read the letter,
0:31
why this was being released by the trump
0:35
team! you know, as you and
0:38
others have been describing, not by the
0:40
legal team, but by his supporters. like
0:42
john solomon. there's nothing in this
0:45
letter that -- as you've just laid out -- that
0:49
puts the president in any positive light
0:52
whatsoever. i don't particularly get
0:55
it. i agree with the legal analysis
0:57
that's in this letter. i will tell you, i
0:59
have worked with the national archives
1:01
many times over the years. i have helped
1:03
them recover stolen property. i have sued
1:05
the national archives many times. in fact,
1:08
i think i'm in
1:09
a couple of current lawsuits against
1:10
them now.
1:11
their top leadership
1:13
that has been there for many years, are
1:15
experts on classification. in fact, a
1:18
former classification czar is in the
1:21
leadership. their general counsel,
1:23
mentioned in the letter, has been there
1:24
for decades. these are people who know
1:28
what they are doing. they are neutral.
1:30
they are non-partisan. this is a damning
1:33
letter against president trump and his
1:36
legal team.
1:37
[lawrence o'donnell] uh, glenn kirschner -- so we've heard from the
1:39
defense.
1:42
that's as good a defense lawyer as you
1:44
can get. and he's not seeing exactly
1:46
where you go with this on the trump
1:48
defense side.
1:51
[glenn kirschner] yeah, there really is nowhere to go. there
1:53
is no safe haven for donald trump. um, no
1:57
matter what his attorneys try to throw
1:59
into the mix, lawrence, it only makes
2:01
matters worse. and you know as bad as
2:04
that letter from the national archives
2:06
is for him because it, you know, discloses
2:09
that there are some of our most
2:11
important national secrets that
2:14
apparently were residing at
2:16
mar-a-lago, being rummaged through by who
2:20
knows who, but you know i read
2:22
something recently that i think is
2:25
even worse for donald trump. and that was --
2:27
and you spent a lot of time on it last
2:29
night when the new york times reported
2:31
that mr trump went through the boxes
2:35
himself in late 2021. now first of all,
2:39
that means he was concealing these
2:41
documents on the property at mar-a-lago
2:44
for a very long time, from late 2021
2:48
until the search warrant was executed by
2:50
the fbi in august of 2022. but even more
2:53
importantly, that has both legal
2:55
consequences and even more importantly
2:57
practical consequences, the legal
3:00
consequences is when you have a crime
3:02
that involves possession, like
3:04
mishandling of classified documents, or
3:06
national defense information, prosecutors
3:08
have to prove that the defendant handled
3:11
them, and mishandled them. and you know,
3:14
the law has two kinds of possession:
3:16
actual possession -- when you're grabbing
3:18
hold of something, and constructive
3:20
possession-- like when donald trump said
3:22
they put those boxes in a storage shed, he
3:25
may never have touched the boxes. but he
3:27
directed that they'd be placed in a
3:29
location over which he had control and
3:32
access. that's the very definition of
3:34
constructive possession. but you know, we
3:36
prosecutors are a conservative bunch -- not
3:39
necessarily politically -- but we don't
3:41
like to take risks. we like to bring
3:42
really strong cases. and lawrence, once i
3:45
saw the reporting that donald trump went
3:48
through the boxes himself, that will give
3:51
prosecutors a real
3:53
comfort level about bringing charges
3:56
that involve donald trump personally
3:59
mishandling classified or national
4:02
defense information.
4:04
and harry litman, the times, when it
4:06
reported that line that "mr trump went
4:09
through the boxes himself", that's the
4:12
source, is that it's -- i'm going to read
4:14
the line again as they reported it: "mr
4:16
trump went through the boxes himself in
4:17
late 2021 according to multiple people
4:21
briefed on his efforts before turning
4:23
them over." so harry, that indicates
4:25
there are multiple potential witnesses
4:28
to this
4:30
piece of evidence that donald trump
4:32
actually went through the boxes himself.
4:34
[lawrence o'donnell] assuming he did, and let's make one more
4:36
assumption: let's assume donald trump
4:38
didn't have any idea that there was any
4:41
information at all at his home
4:44
until december of 2021. that's a big leap
4:47
in donald trump's favor. just for the
4:48
moment let's pretend he didn't know, and
4:51
he discovers them in december of 2021,
4:53
and as the times says, he went through the
4:55
boxes himself,
4:57
what is his obligation upon going
4:59
through those boxes, and seeing that they
5:02
are government documents, presidential
5:05
documents that belong to the government?
5:07
that's set one. and set two, within that
5:11
there are plenty of documents, hundreds
5:13
it turns out, labeled
5:15
classified? what is donald
5:18
trump's legal obligation when he looks
5:20
at those boxes?
5:22
[harry litman] well, i'll tell you one thing it isn't:
5:24
that's to conceal them and lie about
5:28
them. this letter is so damning for
5:31
the reasons you said. but two other
5:34
things to really point out. the first is,
5:37
you know, he's brazen, but he has a
5:40
really small playbook. he's a one-trick
5:42
pony. he's doing the exact same argument
5:46
now about executive privilege. so his
5:49
ally has just published an entire
5:52
legal analysis. and it's not just from
5:54
the archivist, by the way. she checks with
5:56
the doj, the office of legal counsel. so
5:59
it you know, completely trashes his
6:02
legal claim. that's for starters. and now
6:05
second, in this ongoing, what are
6:08
things going to look like thursday, he
6:10
has led with his chin
6:12
in a way that now the department can
6:14
come in and say, oh well, besides this
6:17
letter, let me tell you what really
6:19
happened. and there will now be the
6:22
public accounting of the most important
6:25
aspect that would ever come out in the
6:28
redacted
6:30
version, which is all the back and forth.
6:33
remember, this letter's from may --
6:35
four more weeks -- and then more and more
6:38
and more. so he's given the doj an
6:40
opportunity to just slap him around, and
6:44
make the magistrate come thursday say,
6:47
you know, this has been sort of revealed.
6:49
we can do it in a more eliptical way. so
6:52
that's a long-winded way of answering
6:53
your question. but the main point is
6:56
obligation -- you know, whether or not he
6:58
needs to return it right away, and any of
7:00
us would. glenn would affirm. you see
7:02
documents like that, your head spins if
7:04
they're outside of a skiff.
7:07
you may not continue to conceal them and
7:09
lie about them, and if you do,
7:12
you're looking at 20-year statute that
7:16
7:19
they found in the search warrant here,
7:21
which is obstruction. so once you have
7:24
his knowledge, the obstruction follows
7:27
much more clearly.
7:31
[lawrence o'donnell] and mark, another point on obstruction. this letter from the
7:33
archives specifies to donald trump's
7:36
lawyers that these documents need to be
7:39
handed over to the fbi
7:42
for a criminal investigation. this letter
7:45
is dated may 10th. here's donald trump's
7:47
lawyer holding this in his hands on may
7:50
10th. if he doesn't know it before, he
7:52
knows it now: the fbi is doing a criminal
7:54
investigation of donald trump's handling
7:57
of these documents. that's may 10th. june
7:59
2nd, fbi agents and justice department
8:02
lawyers, come down to donald trump's
8:04
house in florida.
8:06
and the lawyers, the lawyer who got that
8:08
letter, hands over more documents,
8:10
but keeps some that are not handed over
8:15
at that time.
8:17
what does that do to this case?
8:20
[mark zaid] well i think it shows, for one, that there
8:22
is more than just donald trump who's
8:24
potentially facing legal liability. it
8:27
may be some of the lawyers. it's going to
8:29
depend on what they knew when they
8:31
filed this attestation that there was no
8:34
longer any classified documents at
8:36
mar-a-lago, which clearly wasn't true
8:38
since we know by the fbi
8:40
seizure. so it brings in a lot of play.
8:43
but the other thing that this letter
8:44
shows,
8:45
people have been wondering about this motion
8:47
that donald trump and his legal team
8:49
filed yesterday, which is
8:52
horrible. quite frankly, i would fire
8:54
anyone who wrote it if they were working
8:56
for my firm. uh that letter, people
8:59
were saying, "why did it take two weeks to
9:01
file the motion, you know, if you're
9:03
asking for a special master to look at
9:04
this information? and we can talk about
9:06
that if you want, because it's a separate
9:07
issue also. but if you waited that long,
9:10
why? but this letter even shows more,
9:13
because here it is they're put on notice,
9:15
back in may, that actually the former
9:17
president has the right to have
9:19
representatives review the documents
9:22
that are in its possession, to to do its
9:25
own classification review if they wanted,
9:28
so long as they had the proper security
9:29
clearance. i believe that is even john
9:32
solomon that is being referred to in
9:34
this letter. have we heard? and kash
9:37
patel, the other one who's been speaking
9:38
about this, you know, "i wave my magic hand and
9:41
the documents are declassified," have we
9:43
heard them say anything about getting
9:45
access? no. and i would like to know why.
9:48
that is, have they made an effort to get
9:50
access? they were even offered access to
9:53
the unclassified information so that
9:55
they could do an inventory. we haven't
9:57
heard anything about that either. and i
9:59
think we can agree that if there's
10:01
silence from the trump camp, it's because
10:03
they actually think it doesn't help them.
10:05
that means, i really want to know what it
10:07
was, and what the answers are.
************************************
Full text of National Archives letter to Trump on classified documents
May 10, 2022
Evan Corcoran
Silverman Thompson
400 East Pratt Street
Suite 900
Baltimore, MD 21202
By Email
Dear Mr. Corcoran:
I write in response to your letters of April 29, 2022, and May 1, 2022, requesting that the National Archives and Records Administration (NARA) further delay the disclosure to the Federal Bureau of Investigation (FBI) of the records that were the subject of our April 12, 2022 notification to an authorized representative of former President Trump.
As you are no doubt aware, NARA had ongoing communications with the former President’s representatives throughout 2021 about what appeared to be missing Presidential records, which resulted in the transfer of 15 boxes of records to NARA in January 2022. In its initial review of materials within those boxes, NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials. NARA informed the Department of Justice about that discovery, which prompted the Department to ask the President to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them. On April 11, 2022, the White House Counsel’s Office—affirming a request from the Department of Justice supported by an FBI letterhead memorandum—formally transmitted a request that NARA provide the FBI access to the 15 boxes for its review within seven days, with the possibility that the FBI might request copies of specific documents following its review of the boxes.
Although the Presidential Records Act (PRA) generally restricts access to Presidential records in NARA’s custody for several years after the conclusion of a President’s tenure in office, the statute further provides that, “subject to any rights, defenses, or privileges which the United States or any agency or person may invoke,” such records “shall be made available . . . to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B). Those conditions are satisfied here. As the Department of Justice’s National Security Division explained to you on April 29, 2022:
There are important national security interests in the FBI and others in the Intelligence Community getting access to these materials. According to NARA, among the materials in the boxes are over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) materials. Access to the materials is not only necessary for purposes of our ongoing criminal investigation, but the Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps. Accordingly, we are seeking immediate access to these materials so as to facilitate the necessary assessments that need to be conducted within the Executive Branch.
We advised you in writing on April 12 that, “in light of the urgency of this request,” we planned to “provid[e] access to the FBI next week,” i.e., the week of April 18. See Exec. Order No. 13,489, § 2(b), 74 Fed. Reg. 4,669 (Jan. 21, 2009) (providing a 30-day default before disclosure but authorizing the Archivist to specify “a shorter period of time” if “required under the circumstances”); accord 36 C.F.R. § 1270.44(g) (“The Archivist may adjust any time period or deadline under this subpart, as appropriate, to accommodate records requested under this section.”). In response to a request from another representative of the former President, the White House Counsel’s Office acquiesced in an extension of the production date to April 29, and so advised NARA. In accord with that agreement, we had not yet provided the FBI with access to the records when we received your letter on April 29, and we have continued to refrain from providing such access to date.
It has now been four weeks since we first informed you of our intent to provide the FBI access to the boxes so that it and others in the Intelligence Community can conduct their reviews. Notwithstanding the urgency conveyed by the Department of Justice and the reasonable extension afforded to the former President, your April 29 letter asks for additional time for you to review the materials in the boxes “in order to ascertain whether any specific document is subject to privilege,” and then to consult with the former President “so that he may personally make any decision to assert a claim of constitutionally based privilege.” Your April 29 letter further states that in the event we do not afford you further time to review the records before NARA discloses them in response to the request, we should consider your letter to be “a protective assertion of executive privilege made by counsel for the former President.”
The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported “protective assertion of executive privilege.” See 36 C.F.R. § 1270.44(f)(3). Accordingly, I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my “determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.” Exec. Order No. 13,489, § 4(a).
The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B).
To the contrary, the Supreme Court’s decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), strongly suggests that a former President may not successfully assert executive privilege “against the very Executive Branch in whose name the privilege is invoked.” Id. at 447-48. In Nixon v. GSA, the Court rejected former President Nixon’s argument that a statute requiring that Presidential records from his term in office be maintained in the custody of, and screened by, NARA’s predecessor agency—a “very limited intrusion by personnel in the Executive Branch sensitive to executive concerns”—would “impermissibly interfere with candid communication of views by Presidential advisers.” Id. at 451; see also id. at 455 (rejecting the claim). The Court specifically noted that an “incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations.” Id. at 452; see also id. at 441-46 (emphasizing, in the course of rejecting a separation-of-powers challenge to a provision of a federal statute governing the disposition of former President Nixon’s tape recordings, papers, and other historical materials “within the Executive Branch,” where the “employees of that branch [would] have access to the materials only ‘for lawful Government use,’” that “[t]he Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch”; and concluding that “nothing contained in the Act renders it unduly disruptive of the Executive Branch”).
It is not necessary that I decide whether there might be any circumstances in which a former President could successfully assert a claim of executive privilege to prevent an Executive Branch agency from having access to Presidential records for the performance of valid executive functions. The question in this case is not a close one. The Executive Branch here is seeking access to records belonging to, and in the custody of, the Federal Government itself, not only in order to investigate whether those records were handled in an unlawful manner but also, as the National Security Division explained, to “conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” These reviews will be conducted by current government personnel who, like the archival officials in Nixon v. GSA, are “sensitive to executive concerns.” Id. at 451. And on the other side of the balance, there is no reason to believe such reviews could “adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking.” Id. at 450. To the contrary: Ensuring that classified information is appropriately protected, and taking any necessary remedial action if it was not, are steps essential to preserving the ability of future Presidents to “receive the full and frank submissions of facts and opinions upon which effective discharge of [their] duties depends.” Id. at 449.
Because an assertion of executive privilege against the incumbent President under these circumstances would not be viable, it follows that there is no basis for the former President to make a “protective assertion of executive privilege,” which the Assistant Attorney General informs me has never been made outside the context of a congressional demand for information from the Executive Branch. Even assuming for the sake of argument that a former President may under some circumstances make such a “protective assertion of executive privilege” to preclude the Archivist from complying with a disclosure otherwise prescribed by 44 U.S.C. § 2205(2), there is no predicate for such a “protective” assertion here, where there is no realistic basis that the requested delay would result in a viable assertion of executive privilege against the incumbent President that would prevent disclosure of records for the purposes of the reviews described above. Accordingly, the only end that would be served by upholding the “protective” assertion here would be to delay those very important reviews.
I have therefore decided not to honor the former President’s “protective” claim of privilege. See Exec. Order No. 13,489, § 4(a); see also 36 C.F.R. 1270.44(f)(3) (providing that unless the incumbent President “uphold[s]” the claim asserted by the former President, “the Archivist discloses the Presidential record”). For the same reasons, I have concluded that there is no reason to grant your request for a further delay before the FBI and others in the Intelligence Community begin their reviews. Accordingly, NARA will provide the FBI access to the records in question, as requested by the incumbent President, beginning as early as Thursday, May 12, 2022.
Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance. Please contact my General Counsel, Gary M. Stern, if you would like to discuss the details of such a review, such as you proposed in your letter of May 5, 2022, particularly with respect to any unclassified materials.
Sincerely,
DEBRA STEIDEL WALL
Acting Archivist of the United States
