What’s the Deal with Presidential Records

August 2022 Imperfect Union

I had another subject planned for today, but given the insane gush of news last week, I thought it might be helpful to provide an explainer of the Presidential Records Act, offer some history, and share why I think it matters.

History

Starting in 1789, when George Washington created the first presidential records, there were few limitations on official documents. Most departments retained their official correspondence and left it with their office. I’ll admit I’m not totally sure why. I think there was an expectation that the correspondence belonged to the office and not the person. Or maybe to the executive branch and not the person temporarily holding office? Either way, secretaries of state and their clerks regularly left behind official documents for their successors.

That’s why collections like the Foreign Relations of the United States, which are volumes of diplomatic papers compiled by the Office of the Historian at the State Department, exist. These records are imperfect of course. The War Department offices were burned in 1814 when the British Army set fire to Washington, D.C. Heroic editorial efforts have managed to piece together some of the documents based on the copies of correspondence in other archives. But most of the war department records are spotty until 1814. Similarly, lots of records in the south didn’t survive the Civil War. And finally, officials distinguished between their private/personal correspondence and the official letters. Their personal stuff (which tends to be WAY more interesting) went with them.

The president is a different story. From the beginning, the president’s correspondence belonged to him. In some cases, presidents were acutely aware of their place in history and maintained their correspondence, like Washington, Jefferson, and Adams. After retirement, their papers went home with them, but they kept them safe, catalogued them, and in some cases, destroyed what they didn’t want history to know. In other cases, presidents like Lincoln were immediately and obviously destined to stand among the greats, so even if he didn’t have the opportunity to preserve his papers, his family and supporters did it for him.

Not until 1939 did another solution emerge. In 1939, FDR donated his personal and presidential papers to the federal government. He was the first to do so and his official presidential library opened a few years later. Others had made their records available to historians and writers, but Franklin D. Roosevelt was the first to have a library to house his papers, share the history of his administration, and shape his legacy.

FDR Presidential Library, NPS

However, FDR had final say over what papers were private and which were public. For example, on July 16, 1943, FDR wrote to the director of his library and said:

“Before any of my personal or confidential files are transferred to the Library at Hyde Park, I wish to go through them and select those which are never to be made public; those which should be sealed for a prescribed period of time before they are made public; and those which are strictly family matters, to be retained by my family.”

He then gave further instructions and offered specific examples.

“Those which are in effect personal such as, for example, the longhand letters between the King of England and myself…are to be retained by me or my Estate and should never be made public.”

I’m sure you can see the problem. Presidents aren’t always the most reliable or unbiased judges about what information should be made available to the American people. I don’t know about you, but I am inclined to think that letters between the King of England and the President of the United States in the midst of the deadliest war the world had ever seen might just be relevant to our understanding of his presidency.

In 1955, Congress decided to make it official and passed the Presidential Libraries Act. This bill established a system of privately erected and federally maintained libraries, which means that presidents privately fundraised to build the library, then the federal government would take care of it once it was built.

That was all well and fine, but presidents still got to decide what to do with their materials and what would end up at the libraries. Well, like so many things, matters came to a tipping point with Richard Nixon. As he prepared to leave office in disgrace, he planned to bring his materials and the famous Watergate tapes with him. Congress stepped in to preserve those materials and in 1978 passed the Presidential Records Act.

The Presidential Records Act

The Presidential Records Act (or PRA) designates that all documents/records created by the president and his or her staff pertaining to their governing responsibilities belong to the American people. The president is responsible for ensuring the safety, preservation, and management of these records while they are in office.

A few other notes. The original act had been amended over time to clarify that the act applies to White House staff, the vice president’s records, and electronic communications. Tweets, emails, faxes, texts, etc. all count. The president and the staff are responsible for filing their personal and professional records separately.

The president can designate a record private, and therefore not pertaining to governing duties, with the written approval (and only the written approval) of the Archivist of the United States.

After a president leaves office, the records are entrusted to the National Archives and Records Administration (NARA) for preservation and security, on behalf of the public. The records are to be handed over to NARA immediately upon leaving office.

So how does that work with NARA and presidential libraries? Regardless of how the library works, NARA retains legal custody. NARA operated libraries, like the Clinton or George W. Bush libraries were privately funded as designated by the Presidential Library Act. They are then jointly run by their respective foundations and NARA. The records present at these libraries are there with NARA permission.

Presidents are also permitted to have a private library operated by their foundation (not part of the NARA system), which Obama elected to do. The records at his library (whether digital copies or the real thing) are there under a special agreement with NARA. You may have read something about 33 million pages of Obama records in Chicago. As NARA explained in their recent statement, they have elected to store some records in Chicago because there simply isn’t room in D.C. facilities. Classified documents are retained in a NARA facility in Washington. Obama has no control where his records are stored—that decision is entirely up to NARA.

In all administrations, NARA doesn’t wait until the end of the administration to gather everything up in one fell swoop. They tend to collect over time because of the sheer volume of records produced every single day. This practice is also important to ensure proper care is taken by White House staff to comply with the PRA. For example, during President Trump’s administration, NARA issued several warnings, which were echoed by White House counsel, that the president and staff were not complying with the terms of PRA.

No president is perfect, but most presidents since Nixon have attempted to comply with the PRA to the best of their ability. An email or letter here or there might have been misplaced, but the archives have never really raised much of a public fuss until recently. If they discover something is missing, they generally ask for it back (privately) and the president or their staff have complied. The enormity of the task does require a certain element of good faith.

If they don’t make that good faith effort, or worse, act intentionally with malice, there are some potential criminal codes that apply. I’m NOT a lawyer, but here are a few that might be relevant:

“The penalties for the unlawful or accidental removal, defacing, alteration, or destruction of Federal records or the attempt to do so, include a fine, imprisonment, or both (18 U.S.C. 641 and 2071).”

Additionally, then-President Trump signed a bill in 2018 that increased penalties for “unauthorized removal and retention of classified documents or material.” This crime is now classified as a felony.

Why Is It Important

The PRA is important for three reasons. First, it ensures that there is a comprehensive record of what has transpired for a president’s successor. Let’s say one president and the next don’t get along and the person in office instructs his staff not to participate in the transition process. The records help the new president figure out what happened prior to their inauguration. This record is particularly important for national security. A president is better able to order special operations or conduct diplomacy if they know what their predecessor said.

Second, our nation’s most classified documents contain our most precious secrets. Nuclear details, the identities of intelligence sources in other nations, the particulars of special operations. I probably don’t have to work too hard to convince you that it’s important that this information be stored and protected properly. Lives, both Americans and abroad, depend on it.

Finally, the PRA is essential for accountability. If you’ve been around here for a while you’ve probably heard me make this argument before, but it’s worth repeating. We know only a teeny, tiny portion of what happens in the White House on any given day. Even when journalists are their best and breaking huge news stories, most records/conversations/interactions/orders aren’t made public for years. And appropriately so. Classification methods are there for a reason (even if sometimes they are too onerous).

As citizens, we can’t fully grasp a president’s record legacy until we have all the materials. Eisenhower is a great example. When he left office, he was considered old, out-of-touch, doddery, and not in control of his administration. As his administration’s documents began to be declassified, historians developed a much better appreciation for his leadership and careful management of the office.

If the records don’t exist, we can’t fully evaluate a president’s legacy and their place in history. Period.

The News This Week

I want to start by saying there is so much we still don’t know. And that’s how it should be. The DOJ does not generally discuss investigations to protect the person under investigation. Most investigations don’t result in charges because prosecutors have a duty to bring charges only when they are convinced that the evidence will result in conviction. If the evidence doesn’t support charges, they keep the investigation private to avoid unfairly sullying the reputation of the person in question.

With that caveat, I’m mostly withholding judgment until we know more. I think more people should probably adopt that policy. Even though there is an absolute gush of information, these things take time to develop. Just look at Watergate. It wasn’t one day. It was years. Here’s what I do know and my limited thoughts on the subject:

The search on the former president’s house was approved by all levels of DOJ and FBI leadership, including Director Wray, who was appointed by Trump. The warrant was approved by an independent federal judge. These are not dumb people and they have not been living under a rock. They knew the uproar it would cause if they took this unprecedented step and factored in the possibility that they might receive serious threats to their lives and those of their families (which they have). They would not have taken this step lightly.

The search was conducted as privately as possible. The resort was closed, the former president was out of town, the FBI agents wore plain clothes. They did not announce it or make a ruckus. Had Trump and his family not announced the search, it likely wouldn’t have become public knowledge for quite some time.

Trump’s legal team was present while the FBI agents were searching the premises. They were provided with a copy of the warrant and a complete list of everything seized. His lawyers could have released this material. They did not.

Instead, the DOJ filed a relatively rare request, asking the judge to release the warrant for full transparency. I think this course of action was appropriate. Federal officers are tasked with balancing the need for privacy/discretion and the public good. It was clear that the silence and lack of information was only producing conspiracy theories and distrust. So, I think unsealing the warrant was smart.

Based on the reporting, it appears the seized material included top secret materials and information relating to the US nuclear weapons program. There’s a lot here we don’t know, so I don’t want to speculate about what information was included in those boxes or why Trump kept the materials.

But I do want to address a few other points that I’ve seen come up online. First, yes, presidents can declassify materials…while they are in office. They cannot declassify after they leave. They also can’t just snap their fingers and a secret is declassified. There is a process, which includes written documentation drafted by White House counsel. The heads of agencies involved in this information would then be consulted. After the president makes the final determination, the document itself would receive new markings alerting readers and other staff who use the intelligence about the change in status because it affects their working process.

So far there is no record that former President Trump followed any of these steps for the materials found at his residence.

Additionally, the process for declassifying nuclear information is different. The U.S. Nuclear Regulatory Commission describes this process:

“Information may only be declassified by (1) the official who authorized the original classification, (2) a supervisory official (or successor) of the originating classification authority, or (3) agency subject matter experts who have been delegated declassification authority in writing by the NRC.”

Then,

“A document that is identified as a candidate for declassification will be reviewed by a subject matter expert, who is also an authorized derivative classifier. If the subject matter expert determines that the document is no longer considered classified, it will be recommended for declassification. However, if another Federal agency originated the classified information, the document will be referred back to that agency for declassification review.”

If I’m reading this description correctly, I’m pretty sure former presidents, Trump included, don’t have the authority to declassify nuclear information.

I hope this update helps. Let me know if you have any questions and I’ll do my best to answer them as more information is available!