I’m not a lawyer. But there are some pretty good legal writers on the internet. Here’s one site that’s seems to know what they’re writing about:
The most relevant statute discussed seems to be 18 U.S. Code §2071. Concealment, removal, or mutilation.
It states:
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.
From what I’ve been reading, the National Archives request for the return of the boxes of federal documents from Mar-a-Lago was made several months ago. It also seems that the boxes weren’t moved from the White House to Mar-a-Lago as Trump was leaving office, but were brought to Mar-a-Lago during Trump’s presidency when he used Mar-a-Lago as his Florida retreat. It was even discussed in the SDMB a few months ago.
Refusal to act on a demand from the National Archives doesn’t seem to be a crime. If they knew about these boxes of documents for months, then they weren’t being concealed. For the removal charge, the DOJ has to prove that Trump ordered the boxes moved from the White House to Mar-a-Lago when he was leaving office, instead of being there all along. That leaves “mutilates, obliterates, falsifies, or destroys”. So it basically comes down to whether Trump or an assigned minion was going through the boxes and taking out things that belonged to the National Archive that Trump didn’t want them to have. Absent a witness testifying that happened, that’s going to be pretty hard to prove. I don’t think missing documents listed in an index will rise to the standard needed to prove a crime.
My guess is that Trump, through his lawyers, will say that the boxes contained a mix of presidential and personal records, and he wanted to go through the boxes and remove the personal records, but just hadn’t got around to it. He may get charged on something else, but I doubt he gets charged based on a violation related to the Federal Records Act.