Amanpour Cordero
Legal analyst: Charges against Trump represent 'significant legal jeopardy'
08:24 - Source: CNN

Editor’s Note: Gautham Rao is associate professor of American and legal history at American University in Washington and editor-in-chief of Law and History Review. He is author of “National Duties: Custom Houses and the Making of the American State.” The views expressed in this commentary are the author’s. Read more opinion on CNN.

CNN  — 

Here we are with another scandal involving former President Donald Trump. What’s new, right? But there’s something that hits differently about this one.

Gautham Rao

In the past, Trump’s alleged misdeeds have usually been primarily about himself—about making himself richer, or more powerful, or to protect himself from the law.  By allegedly violating the Espionage Act and hoarding classified documents, Trump (who has denied wrongdoing) has taken things to a far darker place.  A quick look at the history of government record-keeping shows us that Trump is thumbing his nose at our system of government and at the rule of law itself.

Prosecutor Jack Smith’s indictment and press conference laid out in devastating detail just how serious the charges are against the former president. In the classified documents that Trump allegedly took from the White House to his residences are deep secrets about the United States’ military and even its nuclear program. The law required Trump to return these documents to the National Archives; Trump knew better, too, since the prosecution has him on tape admitting that he had retained sensitive military information that he had not declassified.

At a more philosophical level, Trump’s alleged actions speak to something else; they flout a basic theory of how our government works.

Hundreds of years ago, when a government official stepped down from an official post, it was customary for them to take with them the records of their time in office.  It was in keeping with an elitist theory of power.

Powerful members of the gentry were routinely tabbed to be sheriffs, tax collectors, inspectors and other key roles.  They were expected to use their status to do these jobs, as people deferred to their rank and power.  Often, they worked out of their homes, so that the workings of government were indistinguishable from their daily life.

In short, their government work was very much their business, even if they were serving the public good.  This approach to governing was still very much in vogue by the American Revolution and at the nation’s founding.

However, in the 19th century a new, more modern concept of government slowly took over.  Perhaps best explained by the famed German sociologist Max Weber, this new vision was that government work now took place outside of the home and instead in government buildings and bureaus.

In this new modern understanding of the state, it was crucial that government offices be understood to be distinct from the individuals who might serve them.  Officeholders were now expected to fulfill their duties by defined administrative rules, rather than by leveraging their status and personal power.

Over time, the professionalization of the government workforce would feature the rise of a civil service, the emergence of bureaucratic experts and the establishment of administrative law.  In the 20th century, President Franklin Roosevelt’s New Deal and the Administrative Procedures Act became the foundation for an increasingly complex and regulated system of government organization.

The Presidential Records Act of 1978, passed in the wake of President Richard M. Nixon’s Watergate scandal, was another example of this evolving system. After resigning in disgrace and to avoid impeachment, Nixon wanted to keep records of his time in office to save what was left of his reputation.  In 1974 Congress passed a law specifically to prevent Nixon from withholding records and followed it up a few years later with The Presidential Records Act, which explicitly designates presidential records as public records.  Presidential records now belong to the American people, not to the President whose administration may have produced them.

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This historical context lets us see Trump’s latest misdeed for what it is—a fundamental rejection of the rule of law.  In this light, we might see Trump’s actions as part of the conservative effort to dismantle the federal government’s administrative power.  But Trump goes even further because his is not a principled ideological manifesto but the simple idea that he, like kings, ministers, and those old self-interested officeholders from centuries ago, is above the law.

By insisting that official records from his administration are his “papers,” and that he can do as he pleases with them, Trump harkens back to a bygone time when government was the exclusive domain of the rich and powerful, and when the elite kept their papers as bespoke mementos of their public works.

Are we still a nation of laws?  Or have we been so beaten down by the Trump era that we’re willing to backslide to a seemingly distant past?  At stake in this, the latest trial of Donald J. Trump, then, is more than just legalese about government protocol about classification and record keeping.  This is about the rule of law.