February 8 2022 The Honorable Merrick Garland Attorney General U S Department of Justice 950 Pennsylvania Avenue N W Washington D C 20530 The Honorable Christopher Wray Director Federal Bureau of Investigation 935 Pennsylvania Avenue N W Washington D C 20535 Re Request for Investigation of Donald J Trump for Violating Federal Law by Willfully Mutilating and Destroying Records Dear Attorney General Garland and Director Wray Citizens for Responsibility and Ethics in Washington “CREW” and the National Security Archive respectfully request that the Department of Justice “DOJ” or the “Department” investigate whether former President Donald J Trump violated federal criminal law by willfully mutilating and destroying critical records of his presidency before leaving office Throughout his term in office President Trump and other White House officials demonstrated a serious disregard for their recordkeeping responsibilities under the Presidential Records Act “PRA” This conduct prompted three separate lawsuits challenging President Trump’s violations of the PRA1 and congressional letters urging the White House Counsel to ensure the Executive Office of the President complied fully with the statute 2 Recent reporting reveals that despite repeated notice President Trump’s recordkeeping violations continued compromising congressional oversight efforts criminal investigations and leaving the public—the rightful owners of the records of the Trump presidency—with an incomplete historical record President Trump’s actions appear to violate 18 U S C § 1361 which makes it a crime to willfully injure or commit any depredation against United States property in excess of $1 000 and 18 U S C § 2071 which makes it a crime to willfully destroy or mutilate federal records 1 CREW et al v Trump et al Civ No 17-1228 D D C filed June 22 2017 CREW et al v Trump et al Civ No 19-1333 D D C filed May 7 2019 National Security Archive et al v Trump et al Civ No 20-3500 D D C filed Dec 1 2020 2 See e g letter to Pat Cipollone White House Counsel from Rep Raja Krishnamoorthi Nov 10 2020 https krishnamoorthi house gov sites krishnamoorthi house gov files 2020 11 10%20Rep %20Krishnamoorthi%20 PRA%20WH%20Letter pdf Factual Background President Trump and White House officials ignored or otherwise violated their recordkeeping responsibilities from the outset of the administration For example in the first month of the Trump presidency news reports revealed that at least some White House staff were using encrypted disappearing messaging applications to communicate about official business 3 As a result the messages were not captured in an official White House recordkeeping system and preserved as presidential records contrary to the requirements of the PRA President Trump also ignored his legal obligation to create and preserve records of key meetings and discussions he had with foreign leaders impairing the ability of his administration’s policy makers to effectively conduct foreign policy and depriving historians of access to critical documents of the Trump presidency 4 In June 2018 news reports documented yet another recordkeeping violation by President Trump specifically his habit of tearing up presidential records when he was done with them—what some termed his “unofficial ‘filing system’”—leaving records management staff to try to tape them back together 5 In the waning months of the Trump presidency members of Congress raised concerns with this practice and other recordkeeping violations by President Trump and his White House staff and sought information on what steps the White House was taking to ensure full compliance with the PRA 6 Others expressed concern that President Trump fearing the consequences to him and his legacy once his records were made public would destroy those records before leaving office 7 To address these concerns CREW and the National Security Archive each wrote to White House Counsel Pat Cipollone CREW requested that Mr Cipollone remind all White House staff of their recordkeeping requirements8 and the National Security Archive requested that Mr Cipollone provide written assurances that no White House official including the President would take any action to destroy any presidential record 9 The White House never responded to either letter Instead as we now know based on recent news reports President Trump relentlessly continued his practice of ripping up his records despite repeated admonitions by top White House officials that such conduct violated the PRA According to the National Archives and Records Administration “NARA” the trove of records it turned over to the Select Committee 3 See e g Mara Gay Messaging App Has Bipartisan Support Amid Hacking Concerns Wall Street Journal Jan 24 2017 htttps www wsj com articles messaging-app-has-bipartisan-support-amid-hacking-concerns-1485215028 Maya Kosoff White House Staffers Are Using a Secret App to Speak Freely Vanity Fair Feb 27 2017 http www vanityfair com news 2017 02 white-house-staffers-are-using-a-secret-chat-app-to-speak-freely 4 See Complaint in CREW et al v Trump Civil Action No 19-1333 D D C Dkt 1 May 7 2019 5 Annie Karni Meet the guys who tape Trump’s papers back together Politico June 10 2018 https www politico com story 2018 06 10 trump-papers-filing-system-635164 6 See e g letter to White House Counsel Pat Cipollone from Rep Raja Krishnamoorthi Nov 10 2020 7 Jill Lepore Will Trump Burn the Evidence New Yorker Nov 16 2020 https bit ly 3kZesWy Alex Woodward What Trump might do now that he’s lost the election From pardoning cronies to sabotaging the transition The Independent Nov 17 2020 https bit ly 2J6KnHa 8 Letter to White House Counsel Pat Cipollone from Noah Bookbinder Nov 12 2020 https www citizensforethics org wp-content uploads 2020 11 2020-11-12-Cipollone-PRA pdf 9 Letter to White House Counsel Pat Cipollone from Thomas Blanton Nov 13 2020 https nsarchive gwu edu documents how-president-elect-biden-can-improve-foia-bolster-presidential-records-act-a gainst-future-abuse Cipollone-letter-2020-11-13 pdf 2 to Investigate the January 6th Attack on the United States Capitol “includ ed those that were torn up and reconstructed ”10 Records the Trump administration turned over to NARA at the end of the administration as part of his presidential papers also included “a number of torn-up records that had not been reconstructed by the White House ”11 According to the Washington Post “interviews with 11 former Trump staffers associates and others familiar with the habit reveal that Trump’s shredding of paper was far more widespread and indiscriminate than previously known and—despite multiple admonishments—extended throughout his presidency ”12 Further “ w hen the Jan 6 committee asked for certain documents related to Trump’s efforts to pressure Vice President Mike Pence for example some of them no longer existed in this person’s files because they had already been shredded ”13 President Trump continued his document destruction “despite being urged by at least two chiefs of staff and the White House counsel to follow the law on preserving documents ”14 According to officials familiar with these actions “ h undreds of documents if not more were likely torn up ” spanning “a range of topics including conversations with foreign leaders ”15 Reportedly the problem was “particularly acute at the time of the transition to the Biden administration ”16 Although the Trump White House instituted “special practices” to deal with his shredded records including attempting to tape them back together the article notes that it is “unclear how many records were lost or permanently destroyed through Trump’s ripping routine ”17 The Presidential Records Act Congress enacted the PRA in 1978 to ensure both “the preservation of the historical record of future Presidents” and “public access to the materials” of a presidency H R Rep No 95-1487 95th Cong 2d Sess § 2 1978 Toward that end the statute provides that “ t he United States shall reserve and retain complete ownership possession and control of Presidential records ” 44 U S C § 2202 The PRA directs the president to 10 Jacqueline Alemany Josh Dawsey Amy Gardner and Tom Hamburger Some records sent to Jan 6 committee were torn up taped back together—mirroring a Trump habit Washington Post Jan 31 2022 https www washingtonpost com nation 2022 01 31 trump-ripped-up-documents 11 Id 12 Ashley Parker Josh Dawsey Tom Hamburger and Jacqueline Alemany ‘He never stopped ripping thins up’ Inside Trump’s relentless document destruction habits Washington Post Feb 5 2022 https www washingtonpost com politics 2022 02 05 trump-ripping-documents 13 Id 14 Id 15 Id 16 Id 17 Id Recent reporting disclosed that in addition President Trump improperly removed multiple boxes of his papers to Mar-a-Lago where they resided until retrieval by NARA last month Jacqueline Alemany Josh Dawsey Tom Hamburger and Ashley Parker National Archives had to retrieve Trump White House records from Mar-a-Lago Washington Post Feb 7 2022 https www washingtonpost com politics 2022 02 07 trump-records-mar-a-lago 3 take all such steps as may be necessary to assure that the activities deliberations decisions and policies that reflect the performance of the President’s constitutional statutory or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to the requirements of this section and other provisions of law 44 U S C § 2203 a emphasis added The PRA imposes a multi-step process on the President before any presidential records can be destroyed or disposed of including obtaining the written views of the Archivist of the United States concerning any proposed destruction 44 U S C §§ 2203 c 1 - 2 Once a president leaves office the Archivist assumes “responsibility for the custody control and preservation of and access to” the former president’s records 44 U S C § 2203 g 1 The PRA imposes on the Archivist “an affirmative duty to make” a former president’s “records available to the public as rapidly and completely as possible consistent with the provisions of this chapter ” Id White House recordkeeping guidance issued by the White House Counsel during President Trump’s term in office acknowledged both the legal obligations of all White House personnel to preserve and maintain presidential records consistent with the PRA and the legal consequences of willfully destroying or concealing federal records A February 2017 White House memorandum warns “At all times please keep in mind that presidential records are the property of the United States You may not dispose of presidential records … The willful destruction or concealment of federal records is a federal crime punishable by fines and imprisonment ”18 Reportedly a second memorandum sent in September 2017 repeated the admonition that “ t he willful destruction or concealment of federal records is a federal crime ”19 Potential Criminal Law Violations 18 U S C § 1361 Two provisions of the Criminal Code bear on President Trump’s destruction and mutilation of presidential records First 18 U S C § 1361 provides that anyone who “willfully injures or commits any depredation against any property of the United States” whose value exceeds $1 000 shall be punished by a fine and or imprisonment for not then 10 years and for property that does not exceed $1 000 a fine and or imprisonment for not more than one year 18 White House Memorandum Presidential Records Act Obligations Feb 22 2017 https www archives gov files foia Memo%20to%20WH%20Staff%20Re%20Presidential%20Records%20Act%20 Trump %2002-22-17 _redacted%20 1 pdf 19 Josh Dawsey and Bryan Bender National Archives warned Trump White House to preserve documents Politico Oct 17 2017 https www politico com story 2017 10 17 national-archives-trump-documents-preserve-243888 4 Department guidance clarifies that this statute reaches the destruction of a public record or document 20 President Trump’s willful destruction of his records which are the property of the United States appears to violate 18 U S C § 1361 As confirmed by NARA which is the current legal custodian of the presidential records of the Trump presidency the records that the White House transferred to NARA at the end of his administration included an unknown number that had been torn up—some so significantly that NARA was simply given ripped up shreds of paper As part of his presidential papers they clearly constitute “a public record or document ” a fact President Trump at least implicitly conceded by transferring them to NARA as part of this presidential records This conclusion is also reinforced by the breadth of the PRA’s definition of a presidential record as including all documents that “reflect the performance of the President’s constitutional statutory or other official or ceremonial duties ” 21 Indeed one of the central purposes of the PRA was to establish ownership by the United States of a president’s records upon leaving office 22 DOJ guidance notes the need to prove a loss of at least $100 to establish a felony conviction 23 and the statute provides that damage exceeding $1 000 is punishable by a fine and imprisonment for not more than 10 years These prerequisites are easily met here given the value of presidential records overall and the particular value of presidential records pertaining to the January 6 insurrection As discussed in detail below President Trump’s destruction of his presidential records also appears to have been willful 18 U S C § 2071 Another provision of the Criminal Code 18 U S C § 2071 a makes it unlawful to intentionally “conceal remove mutilate obliterate or destroy or attempt to do so any record proceeding map book paper document or other thing filed or deposited in any public office ” Section 2071 b further prohibits the custodian of any record from concealing removing mutilating obliterating falsifying or destroying it A violation of either provision is punishable by a fine or imprisonment of not more than three years or both A violation of section 2071 b by anyone “having the custody of any such record” also disqualifies that individual “from holding any office under the United States ”24 As explained in the Department’s Criminal Resources Manual “ t he acts proscribed by this section are defined broadly ”25 Section 2071 a prohibits “three types of conduct” involving public records including “concealment removal mutilation obliteration or 20 U S Dep’t of Justice Criminal Resources Manual CRM 1663 Protection of Government Property—Protection of Public Records And Documents https www justice gov archives jm criminal-resource-manual-1663-protection-government-property-protection-pub lic-records-and 21 44 U S C § 2203 a 22 See e g H R Rep No 95-1487 95th Cong at 2 PRA “establish es the public ownership of records created by presidents and their staffs in the course of discharging their official duties ” 23 U S Dep’t of Justice Criminal Resources Manual CRM 1663 24 Id 25 Id 5 destruction of records ”26 The offense is “a specific intent crime ” which “means that the defendant must act intentionally with knowledge that he is violating the law” and according to at least one case must “know that the documents involved are public records ”27 The “statutory requirement of willfulness is satisfied if the accused acted intentionally with knowledge that he was breaching the statute ”28 The “essential element” of a section 2071 offense is “the specific intent to destroy them papers or documents as records of a public office or in other words to obliterate or conceal them as the evidence of that which constitutes their value as public records or to destroy or impair their legal effect or usefulness as a record of our governmental affairs ”29 There is sparse legislative history to this and its predecessor statute Courts applying this statute have described its purpose variously as “prevent ing any conduct which deprives the Government of the use of its documents be it by concealment destruction or removal ”30 and “to preserve the public records and papers intact from all kids of spoliation mutilation or destruction ”31 Section 2071 has been “customarily employed where Government records have been mutilated or destroyed ” and in such cases the “essence of the offense charged” was “the rendering of information unavailable to the Government ”32 Given this broad construction and the statute’s underlying purpose courts applying section 2071 a have not attributed any special meaning to the statute’s “filed or deposited” requirement finding it met where the documents in question were part of the “records of a public office ”33 Relying on the statute’s “obvious purpose” of prohibiting “the impairment of sensitive government documents by those officials who have access to and control over them ” at least one court has construed section 2071 b as applying not only to “custodians of records in the technical sense” but also those “officials who have access to and control over” the records 34 Notably two White House officials have been prosecuted under Section 2071 including for the destruction of presidential records 35 Former President Trump also appears to have violated 18 U S C § 2071 As outlined above he has a well-documented and unprecedented practice of repeatedly ripping up his presidential records The former President’s conduct clearly constitutes mutilation which is 26 Id Id citing United States v De Groat 30 F 764 765 E D Mich 1887 28 United States v Simpson 460 F 2d 515 518 9th Cir 1972 citation and quotation omitted accord United States v North 708 F Supp 364 368-69 n 3 D D C 1988 29 United States v De Groat 30 F at 765 30 United States v Rosner 352 F Supp 915 919 S D N Y 1972 31 United States v De Groat 30 F at 765 See McInerney v United States 143 F 729 730 1st Cir 1906 describing the purpose in part as “to make it an offense to steal or destroy any paper document or record filed or deposited in any of the public offices of the federal government the purpose being to preserve them as evidence relating to things which concern the public and the government” 32 United States v Rosner 352 F Supp at 920-21 33 United States v De Groat 30 F at 765 34 United States v Poindexter 725 F Supp 13 20 D D C 1989 35 See United States v North 708 F Supp at 368-69 n 3 United States v Poindexter supra at 19-20 n 7 In the North case the court rejected the defendant’s argument that presidential records were exempt from section 2071 708 F Supp at 369 n 3 27 6 defined as “to cut up or alter radically so as to make imperfect ”36 Indeed Meriam Webster dictionary’s definition of “mutilate” includes as an example “the child mutilated the book with his scissors ”37 Moreover as presidential records the mutilated documents were “records of a public office ”38 Former President Trump’s document mutilation and destruction were far from isolated incidents NARA staff apparently were “stunned at how many papers they received from the Trump administration that were ripped ” which they described as “unprecedented ” 39 The ripped up papers included “a range of official documents logged as going to the Oval Office or the White House residence ” and “spanned a range of topics including conversations with foreign leaders ”40 Documents NARA provided to the congressional committee investigating the January 6 insurrection included some that had been ripped up and taped back together As records pertaining to an event that occurred years after White House news of the President’s unusual practice first surfaced in 2018 41 they evidence President Trump’s continued and willful mutilation of his presidential records Indeed his document destruction was so entrenched that two White House records management analysts were assigned the task of taping together the scraps of papers mutilated by President Trump 42 President Trump was put on notice that this conduct violated the law in multiple ways and on multiple occasions yet he persisted in destroying and mutilating presidential records of enormous historical value In 2017 the Trump White House issued its own records memoranda—which applied to all White House staff including the President—and made clear that “ t he willful destruction or concealment of federal records is a federal crime ”43 In 2018 public reporting about his unlawful records destruction practices first surfaced and included the fact that he was advised to stop ripping up his documents 44 More recent reporting by the Washington Post confirms that during his tenure in office his then-White House Counsel Donald McGahn and his first two chiefs of staff Reince Priebus and John F Kelly warned President Trump that compliance with the PRA required him to preserve his documents 45 Nevertheless former President Trump “didn’t want a record of anything ” and “never stopped ripping things up ”46 The former president was also put on notice of the unlawfulness of his actions by a lawsuit brought in 2020 by the National Security Archive CREW and others alleging that this and other of his recordkeeping practices violated the PRA That complaint specifically cited President Trump’s practice of ripping up his presidential papers as evidence of his 36 Merriam-Webster “Mutilate ” https www merriam-webster com dictionary mutilate Id emphasis in original 38 President Trump’s White House Counsel conceded as much with the recordkeeping memoranda that advised staff that destruction of presidential records would violate 28 U S C § 2071 39 Parker Dawsey Hamburger Alemany Washington Post Feb 5 2022 40 Id 41 Alemany Dawsey Gardner Hamburger Washington Post Jan 31 2022 42 Karni Politico June 10 2018 See also Parker Dawsey Hamburger Alemany Washington Post Feb 5 2022 43 Dawsey and Bender Politico Oct 17 2017 44 Karni Politico June 10 2018 45 Parker Dawsey Hamburger Alemany Washington Post Feb 5 2022 46 Id 37 7 disregard for his PRA recordkeeping responsibilities 47 That President Trump persisted in mutilating and destroying his records notwithstanding clear notice that such actions violated the PRA demonstrates his conduct was willful within the meaning of 18 U S C § 2071 48 Former President Trump similarly appears to have violated 18 U S C § 2071 b which specifically applies to custodians of records The PRA imposed recordkeeping responsibilities directly on President Trump as the custodian of his own records The statute at 44 U S C § 2203 a expressly requires the president to “preserve and maintain ”all of his records that that “reflect the performance of the President’s constitutional statutory or other official or ceremonial duties ” Accordingly by mutilating records over which he had custody former President Trump also appears to have violated 18 U S C § 2071 b Conclusion Revelations over the course of the past year have shed greater light on the role former President Trump played in seeking to overturn the results of a free and fair election To ensure that such attacks on the foundation of our democracy are never repeated there must be full and public accounting of Trump’s role in the insurrection of January 6 2021 and the roles of those who aided and abetted him But without a full historical record unimpeded by the former president’s willful destruction and mutilation of his presidential records full accountability may escape us Accordingly we request that you investigate whether former President Trump violated criminal laws by willfully destroying and mutilating his presidential records while in office Sincerely Noah Bookbinder President Citizens for Responsibility and Ethics in Washington Thomas Blanton Director National Security Archive 47 48 National Security Archive v Trump Civil No 20-3500 KBJ D D C Complaint ¶ 56 Dkt 1 Dec 7 2020 See Simpson 460 F 2d at 518 8