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The Florida home of a former U.S. president was recently raided because he was believed to have several documents that belong to the government in his home. Fifteen boxes of such papers were recovered from the home. The way I've heard the investigation described, the F.B.I. carried out the raid because it was believed there were top secret documents that needed to be recovered among the papers in the Florida home. The unspoken message I seem to hear in reporting on the issue is that the problem isn't that he had official documents in his possession, but that he had top secret documents in his possession. This makes me wonder: is it common for people to have official government documents in their possession after they leave the office of the president?

EDIT: I left the original question. Response to the comment asking about if this question is focused on top secret documents: not exclusively. I wrote this question with the idea of responding to someone hypothetically asking, "what's the big deal? They all take home the papers from their office when they leave". I had a feeling the president was lawfully required to leave all the documents his office created and couldn't take them after the term is over. Official documents is clearly more than just top secret documents.

To address the other comment asking for clarification: I didn't mean sundry items, like a get well letter on presidential letterhead. I meant more substantive documents, like documents from the office of the president that affect national policies or regulations or are official communications with domestic or foreign officials but since I don't work for the White House and don't study any branch of U.S. government closely, I don't know all the aspects of documents created in that office. I searched a little about National Archives ("N.A.") and presidential records. So if it clarifies some: "Presidential records" as defined by the N.A here seems to describe what I'm asking about.

To kind of answer my question, I came across this article from factcheck in my search: the president is not allowed take home records. I feel silly answering my own question, so if someone else wants to write a thorough answer, the factcheck link and the link I included from the N.A., should provide some material for an answer.

I've spent a lot of time working on this edit. Apologies if it didn't improve the question.

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  • It would be nice, if people give examples of this happening in the past, that they indicate whether this possession was officially sanctioned or not (say by the National Archives). Also, classification levels, confidential, top secret, would bear mentioning as well. Note that some level of access, if not possession, to official info is expected , at least for some positions, not necessarily POTUS. [CIA directors get this:] (politico.com/story/2018/08/15/…) Commented Aug 15, 2022 at 18:57
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    If you're talking about classified information, then this is a duplicate of politics.stackexchange.com/questions/12102/…
    – Bobson
    Commented Aug 15, 2022 at 19:53
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    You are mistaken about the type of documents. The highly classified documents are a much bigger problem, but any official Government documents are the property of the Government and it is improper to keep them after you leave the job.
    – JohnFx
    Commented Aug 15, 2022 at 20:58
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    It's perfectly valid to self-answer a question, especially if you discovered the answer through more research after asking it. Share what you've learned!
    – Bobson
    Commented Aug 15, 2022 at 21:01
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    @Trilarion - I said improper, not illegal, but it is probably both if he didn't have authorization from NARA
    – JohnFx
    Commented Aug 16, 2022 at 17:15

2 Answers 2

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The issue is confusing because there are actually several different issues here, as I mention in this answer. These include:

  1. Records produced by the Trump administration. Individual documents from this set may or may not be classified (I expect most are not), but under the Presidential Records Act these belong to the United States, not the ex-president, and the government is obligated to preserve them. My understanding is that attempts specifically to gain possession of these (which have been occurring since around the start of the year) have all been requests for Trump and/or his retainers to voluntarily hand them over.

  2. Sensitive documents that are being handled improperly or exposed to unauthorized people, such as by being stored with insufficient security or in a place where people without appropriate clearances can access them. This includes, but may not be limited to, documents containing classified information, defense information, and so on.

This second category could involve prosecutable crimes under, e.g. 18 U.S. Code § 798 (Disclosure of classified information) or 18 U.S. Code § 793 (Gathering, transmitting or losing defense information); the second of these was mentioned in the search warrant.

Also mentioned in the search warrant were § 2071 (Concealment, removal, or mutilation generally) and § 1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy), which could conceivably cover documents in neither category above.

Note that this does not mean that anybody will be prosecuted, or even that the Justice department is attempting to prosecute anybody. It's possible, for example, that they created and executed the search warrant simply because they wanted to get some sensitive documents back under government control and were having trouble doing so via less forceful means, and they'll be happy to let the matter drop now that they've done that.

Also note that, as I mention in this answer, Trump had the ability to unilaterally declassify certain types of documents while he was president, and could do so without telling anyone. If these were not reclassified before the government took back possession of them there would seem to be nothing to prosecute, at least under § 798, for those documents, though the government wouldn't know this until Trump got around to telling them that he'd done so.

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    "and could do so without telling anyone" No, the bar is low for a President to declassify something, but they do actually have to tell someone. If the POTUS doesn't tell anyone they want some info declassified, then it is not declassified, because there's no one around to make the changes in relevant apparatuses or mark documents as declassified. At least until humans develop the ability to read minds or communicate telepathically in some way. Ex post facto declassification is not a thing. And for anyone wondering, former Presidents don't have the authority to declassify anything.
    – TylerH
    Commented Aug 17, 2022 at 20:29
  • @TylerH Some people think POTUS has to tell someone; others don't. It doesn't appear to have been conclusively determined either way, but keep in mind that ultimate authority on who can declassify things and how rests with POTUS. See this answer for more details.
    – cjs
    Commented Aug 18, 2022 at 3:10
  • And yes, I agree that ex post facto declassification is not a thing, which is why I never suggested that it could happen, nor suggested that he declassified anything after he left office. However, he could have "secretly" declassified something while in office, telling nobody at the time, and only later (after leaving office) informing people that he'd done that. If he claims to have done that, there's no way to prove that he didn't.
    – cjs
    Commented Aug 18, 2022 at 3:11
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    Still no; there is no "secret declassification". If POTUS wants to declassify something, they usually can. But they have to tell someone. It is not logically justifiable to claim whatever you want to share is declassified because you decided so in your head and just forgot to tell anyone. There are extensive review processes by numerous offices when data is declassified, because it often has real impact on other people (which is the point of classifying information: all the people that can be affected by it). It's not just a game of "I'm the POTUS so I get to know stuff you don't know".
    – TylerH
    Commented Aug 18, 2022 at 13:31
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    If you're looking for some kind of explicit entry in the rule book that handles this neatly, you're not going to find it spelled out, because no President has ever been thick enough to contend this point. Trump, however, made doing dumb stuff to test the rules of the system his signature move, so it's perhaps not surprising that he's still finding ways, a year and a half after leaving office, to do it.
    – TylerH
    Commented Aug 18, 2022 at 13:35
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is it common for people to have official government documents in their possession after they leave the office of the president?

No. Not in the modern era. In modern times, when the matter was legally regulated, this has been a standard task list item for the transition team of the departing President.

Before this matter (e.g. confidentiality regulation) was formally regulated legally, most Presidents contributed documents to a Presidential library, sometimes with a "do not release" before date.

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    @Trilarion One issue with that is did the-then president follow the proper procedure? Another issue is, was he capable of declassifying this document? Because the president is not capable of declassifying certain material (e.g. 'nuclear secrets).
    – Lag
    Commented Aug 16, 2022 at 8:51
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    @Trilarion none of the laws cited in the search warrant depends on whether the documents were classified. Presidential records are the property of the US government regardless, and the espionage act covers documents that "could be used to the injury of the United States" without regard to classification.
    – phoog
    Commented Aug 16, 2022 at 8:52
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    @Lag even if the documents were declassified (and I agree with you that they probably weren't), they remain the property of the US government and they remain subject to the Espionage Act. The sections of the criminal code cited in the search warrant are 18 USC 793, 2071, and 1519. The first is the espionage act, the second covers mishandling of federal records, and the third is obstruction of justice.
    – phoog
    Commented Aug 16, 2022 at 8:58
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    Some are post-WWI (the Espionage Act, e.g.), and many are post-WWII. All pre-date Trump, but the point is that when you are looking at what past Presidents did (as the OP did), pre-WWI Presidencies and even pre-WWII Presidencies, have limited relevant. There is a very small sample size of relevant Presidents even out of the total of 46 of them.
    – ohwilleke
    Commented Aug 16, 2022 at 16:13
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    @Trilarion the Presidential Records Act was passed in 1978. archives.gov/presidential-libraries/laws/1978-act.html So the laws predate the situation I asked about by decades.
    – John Polo
    Commented Aug 20, 2022 at 15:32

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