Werewolf said:
Mani, you're allowed ten attempts.......in the spirit of the Pack.
Two different standards......
Presidential Records Act for POTUS and much tougher Federal Records Act as felony for VP.
Not sure what you're granting me "ten attempts" to do, but here's one. This is a long post, so dig in.
I'm not sure what has led you to believe that the Presidential Records Act (PRA) applies to the president and the Federal Records Act (FRA) applies to the Vice President, or that the two laws differ in that violation of the FRA is a felony but the PRA isn't. Neither of those is true.
The PRA (
44 USC 22 2201-2209) applies to the handling of presidential records and vice presidential records (see 2207). It applies equally to the president and Vice President (among other people).
The FRA (
44 USC 31 3101-3107 ) applies to federal agencies and agency heads. Courts have been consistent in finding that the White House is not a federal agency and that POTUS and VP are not agency heads. So, the FRA does not apply to presidential records handled (or mishandled) by Biden or Trump.
Neither the PRA nor the FRA are limited to classified documents, so even presidential records that were previously classified but are no longer classified still fall under those laws.
More importantly, neither the PRA nor the FRA include a criminal enforcement mechanism. That mechanism is found in
18 U.S. Code 2071 , which states:
Quote:
(a)Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b)Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.
Again, nothing in this law is limited by or relates to the classification of the listed items or documents. If something fell under the PRA or 18 U.S. Code 2071 before is was declassified, it still does after it was declassified.
The terms "willfully" and "with intent to" present a high bar for a prosecutor, particularly up to the point where the existence of listed items or documents becomes known, because you would have to have prove that a person knew they were "taking and carrying away" listed items or documents. It is not enough to show that someone knew that a box was in an office closet, or in a garage, or in a home in Florida. You have to show that the person knew the contents of the box. You would have to have a paper trail or witnesses showing that the person knew about the contents of the boxes prior to the discovery of listed items or documents in the boxes. No such paper trail or witnesses exist for the Biden or Trump documents prior to the discovery of the documents.
One way to show willfulness, though, is to give someone notice, such as by informing them that a document or other item is missing from where it should be (e.g., the Archives) and that it is in their possession. Or someone in their employ could inform them about the item or document and then inform the DOJ/FBI. Or the DOJ could serve a subpoena requesting the return of documents or items.
Once someone is on notice of items or documents, how they behave will affect whether they act willfully or not. If they report and return the items or documents promptly, then that will weigh against willfulness. If they refuse to return the item, response incompletely to a subpoena, make a false statement (themselves or through an attorney) that all of the items and documents were returned, move items or documents from where they were after the person was on notice, etc., then that may weigh towards willfulness.
So far, Biden actions after being on notice appear to weigh against willfulness. Trump's actions do not.
(Edited because I hit "post" too soon.)
