So, you are a political appointee or a career civil servant and it appears that the Trump team will be leaving the White House, while the new team is moving in to assume control of the executive branch on Jan. 20. What can you destroy and what can you take with you?
The answer to part one of this question is probably nothing, and the answer to part two is exceedingly little. (More on how little below.) That is unless you want to hire a defense attorney and risk a serious term of imprisonment.
Presidential records and federal records belong to the United States government. Only personal records can be taken and retained after leaving government service. Under the Presidential Records Act (PRA), these are (1) materials relating exclusively to the President’s own election and to the election of a particular individual or individuals to federal, state, or local office that “have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President;” and (2) materials relating to private political associations. 44 U.S.C. §2201. Calendars that contain official appointments and other records containing both official and political material are the property of the government and must be retained. It is important to understand special rules that apply under the PRA to most of the Executive Office of the President (EOP), including the White House Office, Office of the Vice President, the entire National Security Council staff, and other EOP components… Under the PRA, a small category of materials in your office could count as “personal” … the print out of the photo you took with your mom in front of the West Wing during her tour is probably a personal record that can come with you in your box along with your coffee mug. But everything related to doing your job, in essence, is a presidential record that belongs to the government, no matter what format it is in or how it is stored.
Remember the unnamed Clinton staffers who thought it funny to steal the “W” key from White House computer boards in 2001. Not so funny when one realizes that juvenile prank was a federal crime. “The theft of or willful damage to government property would constitute a criminal act,” the nonpartisan General Accounting Office report stated after an investigation that included interviewing over 100 government employees.
But let’s assume that departing executive branch staffers destroy or steal something far more valuable than a computer key worth less than a dollar. Let’s assume they steal or destroy information belonging to the United States government stored on computer files in the executive branch. A document that is embarrassing, potentially incriminating or just useful to the “other side,” which a staffer simply takes or destroys so the “other side” won’t get it.
That “other side” is fellow Americans who may disagree politically but who, once a new president is sworn in pursuant to the Constitution, will administer the executive branch under the powers of the president set forth in Article II. The stolen or destroyed property belongs to the government, not to the departing president. Intentionally taking or destroying that property, including property in the form of digital information, is a federal crime.
Don’t believe it’s that serious? Let’s take a look at the clearly worded statutes that should make someone run in the other direction if asked to be involved in the destruction of government records.
18 USC §641, public money property or records, provides:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both ….
18 USC §1361 provides:
Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:
If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.
18 U.S. Code §2071. Concealment, removal, or mutilation generally provides:
(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….
The first two statutes – 18 USC §641 and §1361 – require prosecutors to prove the property was of value, but information usually is valuable and the cost of retrieving information stored on government computers from back up files can be significant. The third statute – 18 USC §2071 – does not require proof that the stolen or destroyed property was of monetary value.
As the Department of Justice explains with respect to §2071:
There are several important aspects to this offense. First, it is a specific intent crime. This means that the defendant must act intentionally with knowledge that he is violating the law. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972). Moreover, one case has suggested that this specific intent requires that the defendant know that the documents involved are public records. See United States v. DeGroat, 30 F. 764, 765 (E.D.Mich. 1887).
The acts proscribed by this section are defined broadly. Essentially three types of conduct are prohibited by 18 U.S.C. § 2071(a). These are: (1) concealment, removal, mutilation, obliteration or destruction of records; (2) any attempt to commit these proscribed acts; and (3) carrying away any record with the intent to conceal, remove, mutilate or destroy it. It should be noted that all of these acts involve either misappropriation of or damage to public records. This has led one court to conclude that the mere photocopying of these records does not violate 18 U.S.C. § 2071. See United States v. Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972).
Subsection (b) of 18 U.S.C. § 2071 contains a similar prohibition specifically directed at custodians of public records. Any custodian of a public record who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys (any record) shall be fined not more than $2,000 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.” While the range of acts proscribed by this subsection is somewhat narrower than subsection (a), it does provide the additional penalty of forfeiture of position with the United States.
– United States Department of Justice, Criminal Resource Manual, §1663 (updated January 23, 2020).
If the stolen, lost or destroyed information pertains to the national defense, the offender is in even more trouble.
18 U.S.C. §793: Gathering, transmitting or losing defense information, provides:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
Note the conspiracy provision in §793(g) which reflects the law of conspiracy generally. Planning with someone else to destroy government documents or to commit any other crime is often as bad as the crime itself. The general conspiracy provision is set forth in 18 U.S.C. §371 (“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both”).
And if the information pertains to an ongoing federal investigation the offender should be prepared to be charged under the obstruction of justice statutes. For example: 18 U.S. Code § 1512 provides:
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
For purposes of this statute § 1512(f)(1) provides that “an official proceeding need not be pending or about to be instituted at the time of the offense.” That means that if it is known that there is likely to be a federal proceeding – whether by federal prosecutors or Congress — and someone destroys documents that pertain to that proceeding, there can be obstruction of justice.
Finally, if documents are missing, for example, from computers and computer files in a departing staffer’s office, someone from a federal agency, federal law enforcement, or a congressional committee investigating the matter may come asking about them. Lying about what happened to those documents is a great way to extend one’s reservation as a guest of the government, that is, with the Bureau of Prisons. 18 U.S.C. §1001 provides:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years ….
Members of Congress –including the House Committee on Oversight and Reform and the Judiciary Committee – would be well advised to warn current administration officials of their duties to preserve records, the existing federal criminal laws, and the myriad congressional investigations to which the obstruction of justice statute may also apply.
The bottom line here is simple. Destroying or stealing documents belonging to the United States government is a crime. Destroying or stealing documents to cover up another crime, or activity that may be under investigation, is also a crime. Lying about what happened to missing documents is yet another crime. A departing federal official may take personal property from the office but no more. That includes perhaps some family photos – and of course that red cap. But everything else stays where it is. Anyone who doesn’t understand that could end up staying with the government a lot longer than anticipated or desired.