LEILA FADEL, HOST:
Former President Donald Trump says his Mar-a-Lago home in Palm Beach, Fla., was searched by the FBI. The FBI and Department of Justice declined to comment. But what we do know is that the Justice Department started investigating in February after the National Archives said about 15 boxes of material from the Trump White House wrongfully ended up in Florida. For more, we're talking to Kimberly Wehle, a visiting law professor at American University and the author of "How To Read The Constitution - And Why." Kim, thanks for being back on the show.
KIMBERLY WEHLE: Good morning, Leila.
FADEL: Good morning. So let's start with just how unusual an action like this is to happen to a former president.
WEHLE: Well, it's kind of ironic that yesterday was the day former President Richard Nixon resigned the White House and was also the first time in American history that a former president was - his home was searched by the Department of Justice and the FBI, based on, under the Fourth Amendment, there had to have been evidence that there was material relating to a crime on the premises. That's, you know, a very, very big deal historically.
FADEL: So that's the probable cause they had to have in order to go search the property.
WEHLE: Correct. Yeah. It means a judge signed off on this, as did Christopher Wray, the Trump appointee at the FBI, as did probably Merrick Garland and many people along the way. This was not some kind of willy-nilly political hunt. This was something that demonstrates that the system of justice as established by the framers under the Fourth Amendment is functioning.
FADEL: Now, you mentioned the irony of Nixon resigning in 1974 on this day. The Presidential Records Act was passed after Watergate. Can you walk us through why presidents can't take their own notes and documents with them when they leave the White House?
WEHLE: Yeah. So many major pieces of legislation that are about accountability for the White House to the American people were passed after Watergate, including the Presidential Records Act, which establishes public ownership of presidential records. They belong to the people, not to any one person. And it places responsibility for managing those records with the incumbent president. And it mandates that even nonofficial electronic messages regarding official business be turned over to the archivist immediately when the president leaves office. And of course, there's also - there's no mechanism for actually enforcing the Presidential Records Act, but there are a number of criminal statutes that make it illegal, criminal, to conceal or destroy federal records.
So I think those are probably implicated here, even though, no doubt, they weren't designed for presidents - with presidents in mind.
FADEL: So what constitutes personal papers that you can take home in presidential documents?
WEHLE: Well, that - you know, as I mentioned, it's official business. So to the extent to which the president presumably is, you know, talking to a spouse, a family member or friends about something unrelated to his role under Article II of the Constitution, that wouldn't count. But here, reportedly, there were documents that were classified as classified communications, as well as things like missives between him and North Korean dictator Kim Jong Un.
So it doesn't - it's not that difficult to understand why those kinds of things - and that's all we know publicly - shouldn't have been taken out of the White House. That was illegal. And it looks like the Justice Department probably isn't just following up on the fact that those documents were removed but is probably interested in knowing what happened to any that were not returned, if that is the case.
FADEL: Now, do former presidents of the U.S. get any special protection from this kind of investigative action?
WEHLE: This is - there's no precedent for this. We know there is an internal DOJ memo for sitting presidents that says that prosecutions have to be stalled or halted while they're in office. That's not a law. It's not in the Constitution. But it is an official DOJ policy. That doesn't protect former presidents, and even executive privilege doesn't protect former presidents, as we saw. It's actually, in this moment, Joe Biden that controls that issue, not Donald Trump. So he really is like a regular citizen, except for the massive political implications, and those cannot be understated here.
FADEL: And like you mentioned, there are no historic parallels here to compare this to.
WEHLE: No, and that's classic Trump, right? There's so many - I mean, a lot of people say, well, there's no precedent for this. Well, there was, you know, no precedent for ferrying documents out of the White House this way that really belong to the people. And archivists need to be able to establish what - as a record, what happened.
FADEL: That's Kimberly Wehle. She's a visiting law professor at American University. Thank you so much for your time.
WEHLE: Thanks for having me, Leila. Transcript provided by NPR, Copyright NPR.
