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Yes, the destruction of records during the transition can be a crime, but there are things that House Dems and FOIA requesters can do now to help deter that destruction, while bolstering a future prosecution if it occurs anyway. Check out my Lawfare article for an explainer. /1 https://twitter.com/lawfareblog/status/1324798484315254784
First, FOIA requestors should consider seeking preservation orders in pending cases. That way destruction would violate a court order and could result in contempt proceedings against Trump officials. You piss off a federal judge at your own peril. /2
FOIA requesters can insist that these preservation orders be served on outgoing Trump officials. This will increase the likelihood of contempt if they proceed, as well as prosecution. Once served, there will be no question that the officials knew destruction was unlawful. /3
If Trump officials are dumb enough to destroy records anyway, watch out. Judges have broad authority in contempt proceedings. They can permit discovery by the requester or appoint their own special counsel to investigate. They can also issue a broad range of sanctions /4
The FOIA strategy does not depend on a Biden DOJ acting either. The main downside is that it doesn't reach presidential records, although requesters could still try to go after White House records that were sent to agencies (they might not get them though; it's fact dependent)./5
I'd also encourage requesters to be judicious about seeking protective orders, which are not routinely granted. This strategy should be used selectively where the relevant records are held by political appointees (not career officials) and where the risk of destruction is real./6
The second prong of the strategy involves congressional subpoenas. The main advantage of subpoenas is that they can reach presidential records held by the White House. Subpoenas should be issued now, and renewed once the new Congress convenes (they expire when session ends). /7
If Trump officials destroy records in the face of a subpoena, it makes obstruction and other charges much easier to bring. Most criminal statutes relating to doc destruction have a willfulness requirement, and subpoenas will make it easier to establish that. /8
Obstruction charges can carry much more severe sentences too. The primary purpose of this strategy is to deter destruction in the first instance, but if it occurs anyway, this will make it much easier to pursue a criminal prosecution or contempt proceedings. /9
The law is coming. /end
