CNN
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Former President Donald Trump has made numerous false and unsupported claims about the federal investigation into his handling of government documents, a probe he announced Thursday has resulted in his indictment.
Here is a fact check of seven of the claims Trump has made about the investigation since the FBI raided his Mar-a-Lago resort and residence in August 2022.
Trump has repeatedly claimed that the Presidential Records Act, a 1978 law, says he was supposed to hold negotiations with the National Archives and Records Administration about the return of official documents after his presidency.
For example, he said in a March 2023 interview on Fox that the law is “very specific”: “It says you are going to discuss the documents. You discuss everything – not only docu– everything – about what’s going in NARA, et cetera, et cetera. You’re gonna discuss it. You will talk, talk, talk. And if you can’t come to an agreement, you’re gonna continue to talk.”
He made a similar claim at a CNN town hall in May, saying the law “says you talk, you negotiate, you make a deal.”
Facts First: Trump’s claim is false. The Presidential Records Act says that, the moment a president leaves office, NARA gets custody and control of all presidential records from his administration. Nothing in the law says there should be a negotiation between a former president and NARA over a former president’s return of presidential documents – much less that there should have been a monthslong battle after NARA first contacted Trump’s team in 2021 to try to get some of the records that had not been handed over at the end of his presidency.
The key sentence from the Presidential Records Act is unequivocal: “Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”
Jason R. Baron, former director of litigation at NARA, told CNN in a March 2023 email: “The former President is simply wrong as a matter of law. As of noon on January 20, 2021, when President Biden took office, all presidential records of the Trump Administration came into the legal custody of the Archivist of the United States. Full stop. That means no presidential records ever should have been transferred to Mar-a-Lago, and there was no further talking or negotiating to be had.”
Timothy Naftali, a CNN presidential historian, New York University professor and former director of the Richard Nixon Presidential Library, described Trump’s claim as “nonsense” and said the former president’s description of the Presidential Records Act is “a matter of fantasy,” concocted to allow Trump to “pretend that he’s a victim.”
The law, Naftali said in March 2023, makes clear that documents Trump had at Mar-a-Lago are presidential records that legally belong to the public and are legally required to be in NARA’s custody. The law provides “no room for debates and discussions between presidential advisers and the National Archives at the end a presidency” about such records, Naftali said.
In April 2023, the Society of American Archivists, a professional association, published its own fact check of Trump’s claim, saying it is “patently false.”
Trump has repeatedly claimed that he has been singled out by federal law enforcement even though his predecessors as president all took documents with them after leaving office.
For example, Trump claimed in the fall of 2022 that former presidents Barack Obama, Bill Clinton, George W. Bush and George H.W. Bush all took millions of documents; he repeated the claim that Obama took documents at the CNN town hall in May. He also claimed that George H.W. Bush took his documents to a poorly secured Chinese restaurant and bowling alley.
Facts First: This is all false, as NARA itself pointed out in a statement in 2022. In reality, NARA was granted custody of the presidential records of former presidents (beginning with Ronald Reagan as soon as these presidents left office) as soon as these presidents left office, as required by the Presidential Records Act, and it was NARA, not those presidents, that moved those documents out of the nation’s capital to NARA-managed temporary archival facilities near where their permanent presidential libraries would be built. The NARA-managed facility where records from the George H.W. Bush administration were stored was indeed a former restaurant and bowling alley, but it had been turned into a full-fledged archival facility, and professionally secured in various ways, by the time the documentswere moved in.
After Trump began making these false claims, NARA issued an October 2022 statement saying that it gained physical and legal custody of the records from Obama, Clinton, Reagan, George H.W. Bush and George W. Bush “when those presidents left office.” It said of the temporary facilities to which the documents were moved: “All such temporary facilities met strict archival and security standards, and have been managed and staffed exclusively by NARA employees. Reports that indicate or imply that those Presidential records were in the possession of the former Presidents or their representatives, after they left office, or that the records were housed in substandard conditions, are false and misleading.”
In other words, there is no equivalence between Trump’s handling of presidential documents and those previous presidents’. In Trump’s case, the presidential documents found in haphazard amateur storage at Mar-a-Lago, including documents marked classified, were in Trump’s possession despite numerous attempts by both NARA and the Justice Department to get them back.
You can read a longer fact check here with additional details about the facility where the George H.W. Bush records were stored.
Trump has repeatedly claimed that the FBI search of Mar-a-Lago was unnecessary because the federal government could have simply asked for the documentsback from him. For example, he posted on his social media platform days after the search: “They could have had it anytime they wanted—and that includes LONG ago. ALL THEY HAD TO DO WAS ASK.”
Facts First: It is not true that federal investigators could have easily obtained the government records in Trump’s possession just by asking. By the time of the August 2022 search, the federal government had been asking Trump for more than a year to return official records from his presidency. Even when the Justice Department went beyond asking in May 2022 and served Trump’s team with the subpoena for the return of all documents with classification markings, Trump’s team returned only some of these documents – and then, in June 2022, Trump lawyer Christina Bobb signed a document certifying on behalf of Trump’s office that all of the documents had been returned, though that was not true.
In other words: Trump claimed in August 2022 that the Justice Department could have just asked for the documents “LONG ago” even though his team inaccurately told the department in June 2022 that there were no documents left to ask for.
The Justice Department said in a court filing in August 2022 that the search of Mar-a-Lago resulted in the seizure of more than 100 unique documentswith classification markings. But in posts on his social media platform, Trump argued that he had declassified all of the documents in his possession. “Number one, it was all declassified,” he wrote in a post on August 12.
That same day, conservative writer John Solomon, one of the people Trump named as a representative in his dealings with NARA, read a statement on television, which he said came from Trump’s office, that claimed Trump “had a standing order…that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.” At the CNN town hall in May, Trump made a similar though vaguer claim, saying classified documents “become automatically declassified when I took them.”
Facts First: Trump and his team have not provided any proof that Trump actually conducted some sort of broad declassification of the documents that ended up at Mar-a-Lago – and, so far, his lawyers notably have not argued in their court filings that Trump did so. Eighteen former top Trump administration officials, including two former White House chiefs of staff who spoke on the record, told CNN in August that they never heard of a standing Trump declassification order when they were serving in the administration and that they now believe the claim is false. The former officials used words like “ludicrous,” “ridiculous” and “bullsh*t.”
“Total nonsense,” said one person who served as a senior White House official. “If that’s true, where is the order with his signature on it? If that were the case, there would have been tremendous pushback from the Intel Community and DoD, which would almost certainly have become known to Intel and Armed Services Committees on the Hill.”
It’s important to note that the laws under which the Justice Department said it was investigating possible crimes – statutes about the willful retention of national defense information, obstruction of a federal investigation, and the concealment or removal of government records – do not require documents to be classified for a crime to have been committed. Also, there would be major questions about the legal validity of any broad “standing order” to automatically declassify any document Trump carried out of a certain room.
But first things first: Trump has shown no corroboration for the claim that he did issue such an order.
The Justice Department said in the August 2022 court filing that Trump’s representatives never asserted that documents had been declassified either when they voluntarily turned over 15 boxes that included 184 unique documents with classification markings in January (after an extended back-and-forth with NARA) or when responding to the subpoena in June 2022, when they returned another package of documents that included 38 additional unique documents with classification markings.
Trump claimed in January 2023 that the FBI might “perhaps” have inaccurately described empty folders that agents found at Mar-a-Lago with classification markings on them – perhaps wrongly describing these folders as actual documents, “which they are not.” (He said he saved the empty folders as a “‘cool’ keepsake.”)
Facts First: There is no evidence that the FBI has wrongly described empty folders. In fact, the Justice Department’s detailed inventory of the items seized at Mar-a-Lago – an inventory submitted in court by a senior FBI agent under penalty of perjury – explicitly lists “empty folders” separately, distinguishing them from the government documents that were recovered. The inventory lists 103 government documents with classification markings, hundreds of government documents without classification markings, and 88 empty folders – including 46 empty folders that had “CLASSIFIED” banners on them. None of the government documents is just an empty folder, according to the inventory.
It is theoretically possible that there are errors in the inventory; the Justice Department filed a revised version in September that made minor changes to the original inventory that was filed in August, which the government explained it had needed to complete in a single business day. But the revised version and the original version listed the same number of government documents with classification markings, 103, and the revised version had only a small change to the number of empty folders with classified banners, putting it at 46 instead of the original claim of 48.
You can read a longer fact check here.
Trump has repeatedly floated the idea the FBI or Justice Department might have planted evidence or might proceed to plant evidence.
He suggested on his social media platform in August 2022 that it was suspicious that the FBI would not allow witnesses, such as his lawyers, to be in the rooms being searched at Mar-a-Lago and “see what they were doing, taking or, hopefully not, ‘planting.’” In September 2022, Trump said in a television interview on Fox: “Did they drop anything into those files, or did they do it later?”
Facts First: Nobody has provided any evidence that anyone has planted anything at Mar-a-Lago or amid the items seized at Mar-a-Lago. Despite Trump’s own claims, Trump’s legal team has never argued in a court filing that the FBI or Justice Department planted evidence – even when it was given an explicit opportunity to do so. It is routine, not suspicious, for searches to be conducted without witnesses such as lawyers being in the room; lawyers don’t have a right to watch.
The claim about items possibly having been planted is impossible to definitively debunk at this point, and it is obviously impossible to debunk a claim about what might happen in the future. But Trump and his team have provided zero evidence to support their insinuations on this subject. Before an appeals court stopped a special master review of the seized items in late 2022, Trump’s lawyers resisted an effort by the special master to have them say in a sworn court declaration whether they believed the official inventory included items that were not actually seized from Mar-a-Lago – in other words, if they believed phony items were inserted into the evidence. A judge then ruled that they didn’t have to make this declaration.
Trump, arguing that he is being persecuted, claimed in a video statement in late April that it is President Joe Biden who is “guilty of obstruction.” He claimed that Biden has “1,850 boxes unchecked” and that “he has been totally uncooperative – won’t show the documents under any circumstances.” At a CNN town hall in May, Trump added of Biden’s “1,800” boxes: “And nobody even knows where they are.”
Facts First: It’s not true that Biden has been “totally uncooperative” with the federal probe into his own handling of government records – either in general or specifically with regard to the more than 1,850 boxes of records from his US Senate career that he donated to the University of Delaware, his alma mater. And it’s not true that nobody knows where these boxes are; it has been publicly known since 2012 that they are housed at the university.
The claim that Biden has been “totally uncooperative” with the investigation into his handling of official documents is transparently false. Biden’s team quickly handed over classified documents to federal authorities upon finding them last year at one of his homes in Delaware and at his former think tank office in Washington. And Biden has consented to FBI searches of his two Delaware homes, the Washington office and the University of Delaware.
CNN reported in February that, according to a source familiar with the investigation, the FBI had conducted two searches at the university with the consent and cooperation of Biden’s legal team. It is not clear if Biden permitted the FBI to look at each and every one of the 1,850-plus boxes of Senate papers at the university, or even if the FBI wanted to search all of those boxes; a spokesperson for Biden’s personal lawyer did not respond in early June to a CNN request for more information. But even with few details publicly known at present, it is clearly inaccurate to say Biden has not cooperated at all with regard to these records.
Biden’s Senate papers at the University of Delaware are not yet publicly available; the university website says the boxes were delivered in mid-2012 but will require Biden’s consent to view until two years after Biden retires from public life. That restriction has frustrated some Biden critics, but it is certainly not a crime – and it is normal, as the Senate’s official website explains, for senators to donate papers to a home-state research institution with conditions about when they are to be released into the public realm.
