Why are paper copies of Presidential records supposed to be important given that digital copies are extremely easy to make?

Question

The FBI recently raided Trump's residence in order to recover Presidential records that were taken from the White House without permission. But why would that be important, given that Trump's people could've easily:

1. Taken photos/scans of all the documents and uploaded them to multiple secure locations in the cloud
2. Shredded the documents
3. Burnt the remains to get rid of evidence

If this was still February 2021, the raid would make sense. But this is now... August 2022 and Trump's team had 1.5 years to get rid of the evidence or at least make digital copies. So why go through the hassle of recovering the paper copies?

Wiki claims that the government has been complaining about the missing documents since at least May 2021, so presumably Trump would've had ~15 months to make all the digital copies he wants.

Answer 1

But why would that be important, given that Trump's people could've easily: ...

They could have, but they didn't.

So why go through the hassle of recovering the paper copies?

The paper copies are possibly evidence of a crime. The fact that the evidence could have been destroyed does not make it less useful as evidence. (Indeed, the fact that it wasn't destroyed makes it more useful as evidence.) Investigators gather evidence, so they recovered the paper copies.

The federal government also has a custodial interest in physically securing the documents to reduce the risk of the information in them becoming known to unauthorized people. The reaction to earlier requests to store the documents more securely led to the suspicion that the documents were at risk of being so exposed. This provides additional incentive to take custody of the documents.

Furthermore, the law specifies that any documents that fall within the scope of the Presidential Records Act are to be under the custodial control of the Archivist of the United States. The documents were seized in part to determine whether they are presidential records and, if so, to deliver them to the archivist. Whether Trump made copies is irrelevant to this, and, for documents that aren't classified and don't fall under the espionage act, it's irrelevant to anything. The presidential records act doesn't deny presidents access to their records. On the contrary, it guarantees access:

the Presidential records of a former President shall be available to such former President or the former President’s designated representative

(44 USC 2205(3))

Answer 2

The records are property of the US government. The DOJ is looking into crimes related to their handling, not simply to retrieve them. If Trump had destroyed these records improperly, he could be charged with additional crimes related to their destruction

Some of these involve criminal charges, and significant jail time. I'd argue the DOJ would work with either outcome - they know the records were on the premises, meaning that they either seize the boxes and prosecute, or they seize evidence that they were digitized and destroyed, and pursue several additional criminal charges, some of which are listed below:

Under 18 U.S.C. § 2071, individuals who willfully remove or destroy records “filed or deposited” in “any public office” — or who attempt to do so — may be subject to fines or up to three years of imprisonment if they deprive the government use of those documents (United States v. Rosner, 352 F. Supp. 915 (S.D.N.Y. 1972))

Under 18 U.S.C. § 793(f), individuals with possession or control of records reflecting national defense information who permit their removal, loss, or destruction by “gross negligence” are subject to fines or imprisonment of not more than ten years;

If any of these records are related to active investigations involving Trump, a prosecutor could have a go at a prosecution with:

18 U.S.C. § 1519, individuals who destroy records to impede or influence an actual or contemplated investigation under the jurisdiction of any U.S. agency may be fined or subject to imprisonment of up to 20 years (United States v. Katakis, 800 F.3d 1017, 1023 (9th Cir. 2015).

Without the destruction of the records, Trump has a "good faith" defence to fall back on - swear that he had no knowledge that these records were still there, that, to the best of his knowledge, his team had fulfilled all the requests for their return. It's likely, that, even if it leads to criminal charges, the simple presence of records probably won't lead to jail time. It would be an excellent defence against 18 U.S.C. § 2071, as this aims to prosecute individuals who "wilfully remove or destroy" records.

A prosecutor would also have to prove that Trump displayed "gross negligence" in his handling of national defence information for prosecution under 18 U.S.C. § 793(f).

See Congressional Oversight of Executive Branch Records Preservation from Co-Equal.

Answer 3

Those documents are still presidential documents and there are requirements around how and where they are stored. There is also a concern about there being classified information in them that should not have left the proper storage facilities and Trump should not have still had.

Just because Trump could have digitized all that information and destroyed the physical evidence doesn't mean that there isn't a need to properly secure all of that information.

Answer 4

Even if Trump decided to save it to the cloud and wipe all physical evidence the FBI still has ways to recover encrypted data on a computer or cloud server, especially if the cloud server takes requests for information from federal agencies such as the FBI.

The warrant was already made because the FBI had very good reason to believe that physical or digital copies of the papers existed somewhere on the property as detailed in the unsealed warrant. Raiding the residence of a President who has a cult following is already very bold, so it suggests that the FBI were doing surveillance months or years before the raid and were sure of illegal actions being committed by Donald J. Trump.

The FBI found the papers they were looking for. It hasn't been revealed whether or not his computer equipment was seized to my knowledge.

Answer 5

All of the following is my understanding of the current situation and concerns based on what I've read in the news and other public information.

There appear to be two separate types of documents here that are of concern to the government:

1. Records produced by the Trump administration. These may or may not contain sensitive information, but that doesn't matter: but the key point is that the government does not have those records; they were removed from government offices when Trump left office.
2. Documents produced by other parts of the government that contain sensitive information and thus are classified under the United states government classification system (as Confidential, Secret, Top Secret etc.).

Your question does not appear to be concerned with the latter, so I won't address those further except to point out that it should be obvious why the government would be concerned whether classified documents are stored securely and why they would attempt to retrieve any copies that they feel are not stored with sufficient security.

(A third type would be non-confidential documents produced by other parts of the government; these are of no concern because the government still has their copies and thus has no need of the Trump administration's copies, nor any need to protect the Trump administration's copies.)

The records produced by the Trump administration are, by law, owned by the public and the government is legally mandated to preserve copies of them. The government apparently does not have copies of some of these records produced by the Trump administration, so they're trying to get copies, as is their legal obligation. That's all.

The idea that the Trump team could have made copies (digital or paper, and uploaded to the cloud or stored elsewhere) isn't relevant at all to this; there's nothing saying that Trump can't keep copies of whatever they like that they've generated. (This might even be done at the time the records are generated; the law mentioned above allows you to create/send electronic records through non-official accounts so long you, at the same time or shortly thereafter, send a copy to an official account that's properly archived.

It's certainly possible that the Trump team could have destroyed (shredded, burned, whatever) the records that the government is trying to retrieve copies of. But that's not particularly relevant, either; it's never guaranteed that when you execute a search warrant you'll find what you're looking for. If one should never do a search when you can imagine some circumstance where the search would fail, you'd never search for anything.

Imagine a parallel situation: you let a friend use your workshop to help you build a birdhouse, and later you discover that the dowel for the perch you were working on together is missing, and hear that your friend took it to his workshop. You can imagine the possibility that he took it to his workshop and burned it; does that mean you don't go there and look to see if it's there or not?

You also use, several times, the term "evidence." Whether these documents are evidence of anything or not is no concern of those attempting to fulfil the obligations of the Presendential Records Act; the government must preserve copies of these documents regardless. If other parts of the government later wish to claim that any of those documents are evidence of something or other, they may have access to them in order to support their claim, but that's nothing to do with the PRA itself or the obligation of the government to preserve these documents. They must be preserved even if nobody claims that they're evidence of anything at all.

Answer 6

Original 'hard' versions of documents are the official record of what actually occurred. If there is ever any question about what was said, done, or written, we want to turn back to the original document to get a definitive answer.

For an example, let's say that an accidental fire destroyed the original document containing the Bill of Rights. Fifty years after that fire, someone claims that the first amendment actually reads:

Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

and that the lines about "respecting an establishment of religion, or prohibiting the free exercise thereof" that appear in all the copies of the original were added later by some unknown person, and thus not really part of the amendment. Without the original document, how can we say that this person is wrong?

In the Mar a Lago case, consider the "Executive Grant of Clemency for Roger Stone" that was among the documents Trump had in his possession. Since this original document is out of the control of NARA, private citizen Trump could ostensibly edit it to say whatever he wanted it to say and claim that it had always said that, and there would be no original document to turn to proving that claim wrong. He could thus — again, as a private citizen — extend new clemencies to Stone, or add new people to the clemency order. While it's doubtful this would work in practice, the removal of the original document from public to private control sows ambiguity and confusion that we just don't need.

Answer 7

It's possible that these are multiple different charges. One of them apparently seems to be that these records are owed to the public or some library keeping track of them.

So what happens if you'd go to a library, take a book and never return it? Well they will realize it's absence, look up who had it last and charge you for being overdue and/or to return/replace the book.

Now in this case it's not a book and it's unique so only return will do and having it lost or destroyed on your duty might already be a crime worthy fault of yours. So regardless of it's content the absence of these documents from the respective storage might already be a crime and the retrieval might just be for collecting and documenting official actions (the proper way).

And on top of that you could have other problems, such as high security content and the risk of improper storage, duplication of information and the risk of improper storage of classified information, the destruction of official documents, forgery of official documents (if things are added or removed) and a lot more of these.

So even if it's something completely unimportant and even if Trump has already made copies and destroyed the original, the official place for documenting his presidency would still want to have a full record and thus would want to have the originals and see it as a crime worthy offense not to have them and as said he's likely the figuratively last person to have been seen with them, so they are or should be in his possession.

Answer 8

Paper records themselves are not the (only) problem.

First, to get it out of the way, at this point the documents themselves are only part of the story. There is significant evidence that justice was obstructed. That itself is a serious crime. The DOJ can point to a subpoena for "documents with classified markings", Team Trump responding affirmatively to the subpoena saying they searched for and returned all found "documents with classified markings", and eyewitnesses reporting "documents with classified markings" that were not returned. That is very, very clear evidence of a serious crime (obstruction and related). Even if nothing else were found, if they did obstruct (they haven't argued they haven't yet - that comes later), this is still a long sentence felony. Very serious. That alone would be enough to search and prosecute anyone else.

Beyond obstructing that subpoena, there is also the execution of the law in regards to official records. We have rules. Those rules weren't followed. For the Rule of Law to have meaning, those rules must be followed (or at least good faith attempts must be made). To that end, just dropping the issue when a former official ignores the rules hurts the Rule of Law itself. So wilfully fighting rules (laws) is a concern even beyond the harm done by how the rules are broken.

There are better answers that discuss how having the paper copies makes it easier to create additional copies.

(It's not accurate that a former President can legally make copies of and/or retain anything. That's a huge and different discussion, but a private citizen showing a reporter exactly what an Iranian attack would look like is far outside what is acceptable or legal.)

Also, note that some documents were voluntarily returned. No charges arose from those, even while charges were filed for the documents sized in the raid.