Graphic: Richard Jacques

What is the Presidential Records Act, and how did Trump violate it?

The National Archives last month obtained 15 boxes of presidential records that were being stored at former President Donald Trump’s Mar-a-Lago Club. 

Keeping the boxes of records at Mar-a-Lago violated the Presidential Records Act, which requires the government keep all forms of documents and communications related to a president’s or vice president’s official duties.

“As required by the Presidential Records Act the records should have been transferred to NARA from the White House at the end of the Trump Administration in January 2021,” the National Archives and Records Administration said in a statement on Monday.

Archivist of the United States David S. Ferriero said, “The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people.

“Whether through the creation of adequate and proper documentation, sound records management practices, the preservation of records, or the timely transfer of them to the National Archives at the end of an administration, there should be no question as to need for both diligence and vigilance. Records matter.”

What the Law says

During the Watergate scandal investigation and after his resignation, President Nixon considered destroying the infamous White House tapes. Congress quickly responded by passing the Presidential Recordings and Materials Preservation Act in 1974 to place the Nixon tapes in the National Archives to ensure their place in the historical record. Four years later, Congress passed the Presidential Records Act (PRA) of 1978 to require that all documents produced by the president and the staff of the Executive Office of the President would be preserved in the National Archives.

The Presidential Records Act requires that all presidential documents, from diaries to drafts of speeches, be retained, both for current reference and the historical record. Although the law gives the president the responsibility for the custody and management of the records, it does not allow him to decide which records should be kept or destroyed.

That power lies with the National Archives and Records Administration, which reviews the records and determines if they qualify for inclusion in the presidential archive.

Why the law is very important

The purpose of the PRA is to strengthen transparency, trust, and accountability in government while allowing us to learn from our past through ensuring that every piece of paper that the president touches is saved in public archives. Records from the Franklin Roosevelt administration have shed light on the New Deal, documents from the Cuban Missile Crisis revealed how close the country came to war, and those from the Vietnam era revealed White House deliberations when presidents faced a divided country.

Records from the COVID-19 pandemic and the lives lost from Trump period will allow us to analyze the Trump administration’s successes and failures in combating the coronavirus. Without those records, future public health officials and politicians risk repeating the flawed pandemic response that we have seen this year. The PRA may seem like an administrative detail, and in practice it is, but it allows us to save our history and learn from our past.

Could former President Trump be prosecuted for his serial Presidential Records Act violations?

Trump’s repeated ripping up of documents “is against the law, but the problem is that the Presidential Records Act, as written, does not have any real enforcement mechanism,” James Grossman at the American Historical Association tells the Post. One Archives official described the Presidential Records Act as functionally a “gentlemen’s agreement.”

“You can’t prosecute for just tearing up papers,” Charles Tiefer, former House counsel, tells the Post. “You would have to show [Trump] being highly selective and have evidence that he wanted to behave unlawfully.”

Trump routinely ripped up papers throughout his presidency, despite repeated warnings from lawyers and two chiefs of staff that he was violating the Presidential Records Act, the Post reports, citing 11 former Trump aides and associates. “He didn’t want a record of anything,” one former senior Trump official said. “He never stopped ripping things up. Do you really think Trump is going to care about the records act? Come on.”

The National Archives and Records Administration (NARA) asked the Department of Justice to investigate whether former President Donald Trump violated federal records laws when he took boxes of official White House documents to Mar-a-Lago with him, The Washington Post reported.

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