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Trump’s Presidential Records Act Violations: Short- and Long-Term Solutions

Trump’s Presidential Records Act Violations: Short- and Long-Term Solutions

On Jan. 31 and Feb. 5, The Washington Post reported that former President Trump routinely “tore up briefings and schedules, articles and letters, memos both sensitive and mundane” in violation of the Presidential Records Act (PRA) and that some of the records received by the Jan. 6 committee had been “ripped up and then taped back together.” As the Washington Post pointed out, the fact that Trump ripped records wasn’t news. In 2018, Politico ran a profile on the two staffers tasked with Scotch taping Trump’s records back together. But the recent reporting suggests that Trump shredded far more documents than previously known, and that many of the shredded records ended up in “burn bags” and destroyed. That includes records of particular importance to the Jan. 6 committee’s ongoing investigation related to Trump’s efforts to pressure Vice President Pence to overturn the results of the 2020 presidential election.

Additional details of Trump’s removal and destruction of records are being revealed daily. On Feb. 7, the National Archives and Records Administration (NARA) disclosed that it had been forced to retrieve 15 boxes of records from Trump’s Mar-a-Lago residence. On Feb. 9, The New York Times reported that some of those boxes contained classified records. On Feb. 10, a preview of Maggie Haberman’s book disclosed that “staff in the White House residence periodically discovered wads of printed paper clogging a toilet—and believed the president had flushed pieces of paper.”

As in various other situations in which Trump has flouted well-established laws and norms that typically constrain the president, his apparent brazen disregard of the PRA presents two sets of questions: First, what are available mechanisms for accountability against a president who violates these rules? And second, what future reforms would strengthen guardrails against rule of law violations by the occupant of the Oval Office? After a short primer on the PRA’s origins and how it operates, we discuss both sets of questions below.

The Presidential Records Act

The history of the PRA and the broader, complementary Federal Records Act (FRA) is well documented. Briefly, the FRA was enacted in 1950. It requires federal agencies, but not the president, to preserve their papers. In 1955, Congress passed the Presidential Libraries Act, which encouraged, but did not require, presidents to donate their records to private libraries so that they could be made available to the general public. The law tracked the norm that President Franklin Roosevelt started when he opened his presidential library in 1941 and eventually donated his papers.

It wasn’t until President Nixon attempted to flout this norm that Congress took action to proactively protect public access to presidential records. After Nixon resigned, he promptly entered into an agreement with the General Services Administration that would have allowed him to destroy his records, including the Watergate tapes. Congress acted quickly to head off the destruction of the tapes, enacting the Presidential Recordings and Materials Preservation Act. That act specifically prohibited Nixon from destroying the tapes, and further specified that:

[n]otwithstanding any other law or any agreement, the [General Services] Administrator shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.

Nixon challenged the Presidential Recordings and Materials Preservation Act. In doing so, he again invoked a separation of powers argument, as well as executive privilege, privacy, First Amendment and Bill of Attainder arguments. The Supreme Court rejected Nixon’s challenge in Nixon v. Administrator of General Services.

The court’s rationale in denying Nixon’s separation of powers argument is worth mentioning, as it has played an important role in how courts have construed the subsequent PRA and, likely, in Congress’s design of the PRA. The court held that the act would present a separation of powers problem if it prevented the executive branch from accomplishing its constitutionally assigned functions (at which point the court would have had to determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress). The court held that the act did not prevent the executive branch from accomplishing its functions based on several features. First, the act put the executive branch in charge of identifying and maintaining the records at issue. The court explained that it is “clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function.” Second, the act contemplated that the records could be used in judicial proceedings but only to the extent they were not subject to executive privilege. Third, in granting public access to the records, the act specifically provided Nixon an opportunity to raise any privileges before disclosure and to have any “purely private” materials returned to him. Fourth, the act imposed the same restrictions on congressional access to records—in other words, members of Congress had no more right to access Nixon’s records or overcome any privileges than the general public. In sum, the act ensured that “[t]he Executive Branch remain[ed] in full control of the Presidential materials, and the Act facially [wa]s designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch.”

Following the Supreme Court’s decision, Congress enacted the Presidential Records Act in 1978 to avoid future debacles over presidential records. The PRA, which is codified and amended at 44 U.S.C. §§ 2201–2209, largely mirrors the Presidential Recordings and Materials Preservation Act. It also accommodates the separation of powers concerns raised in Administrator of General Services by placing primary responsibility for real-time implementation in the executive branch and providing for the transfer of custody and restricted disclosure after a president leaves office. The key provisions are as follows.

Public Ownership. In Section 2202, the PRA provides that the United States owns “Presidential records.”

Preservation of Presidential Records During a President’s Tenure. Section 2203 tracks the Presidential Recordings and Materials Preservation Act and the Supreme Court’s decision in Administrator of General Services and places the responsibility of identifying and preserving presidential records during an administration’s tenure with the president. It requires the president to take “all such steps as may be necessary” to preserve PRA records.

Destruction of Presidential Records During a President’s Tenure. Section 2203(c) allows the president to dispose of PRA records that the president determines “no longer have administrative, historical, informational, or evidentiary value.” Before the president may do so, however, Subsection 2203(c) requires the president to first obtain the views of the archivist of the National Archives and Records Administration and the archivist signs off on the destruction. If the archivist agrees with the president’s assessment, the president may destroy value-less presidential records. If the archivist does not agree, Subsection 2203(d) requires the president to provide a disposal schedule to “the appropriate Congressional Committees” 60 days in advance of destroying the records. Subsection 2203(e), in turn, requires the archivist to request the advice of the Committee on Rules and Administration and the Committee on Governmental Affairs of the Senate (now, the Committee on Homeland Security and Governmental Affairs) and the Committee on House Oversight and the Committee on Government Operations of the House of Representatives (now, the Committee on Oversight and Reform). What happens next is unclear and not spelled out.

Transfer of Custody. At the conclusion of a president’s term of office, Subsection 2203(g) provides for the transfer control of custody of presidential records from the president to the archivist, who must deposit the records in an archive.

Restricted Access Periods. Under Subsection 2204(a), the former president is empowered to direct that six categories of information be kept secret for up to 12 years; under Subsection 2204(b), the remaining records must be kept secret for a minimum of 5 years. Section 2205 lays out several exceptions to the restrict access periods, including for the disclosure of records pursuant to a subpoena, to an incumbent president and to either house of Congress.

Subsequent Disclosure Governed by FOIA. Following the restricted access periods, Subsection 2204(c) provides that PRA records are treated as agency records of NARA, subject to disclosure under the Freedom of Information Act (FOIA). Notably, however, Subsection 2204(c)(1) provides that FOIA’s exemption for records implicating the deliberative process privilege (which ordinarily includes, as a subset, records implicating executive privilege) may not be used as a basis to withhold presidential records following the PRA’s mandatory restricted access periods.

The PRA’s origins underscore the significant interests it protects. The statute reflects the inherent value of being able to comprehensively and truthfully chronicle history and, specifically, the history of the U.S. presidency. But it also stands as an important guardrail against abuses of power. In requiring presidents to preserve their records, the PRA protects the ability of congressional and other investigators, including law enforcement, to investigate wrongdoing and hold individuals to account. The statute also implicates national security interests, protecting the ability of an incoming administration to understand the actions of its predecessor and operate with full awareness of the state of play in the world.

Relative Significance of Trump’s Presidential Records Act Violations

Former President Trump is not the first president to seek to circumvent the PRA, or even the first to do so in order to evade congressional inquiry. As Jill Lepore recounts: Reagan sought to shield email records reflecting the Iran-contra arms deal; and George H.W. Bush’s administration destroyed telephone logs and email records that were relevant to an ongoing congressional investigation into whether Bush had ordered the State Department to search Bill Clinton’s passport records. Lloyd Cutler, who served as counsel to Bill Clinton, advised employees of the risk of disclosure under the PRA, which led some to stop keeping diaries and start using private email accounts to conduct government business. During George W. Bush’s presidency, the administration’s actions implied that all but a very narrow subset of vice presidential records were not properly considered presidential records and, when challenged on that front, the administration argued that neither the archivist nor the National Archives had any authority to review that classification determination.

But there are at least four unique aspects to Trump and his administration’s apparent PRA violations.

First, the purported violations are more brazen. Previous administrations sought to wage the PRA battle through implementation guidelines with suspect classifications of what counted as a “Presidential record,” as well as through decision-making about whether to create a record in the first instance. The Trump administration, in contrast, issued facially valid (albeit skeletal) PRA implementing guidelines but appears to have proceeded to violate those guidelines flagrantly and routinely. In addition to Trump’s shredding habits, ample evidence suggests that Trump officials used messaging services with automatic message-deleting apps to communicate, as well as personal email accounts. There have been other instances of individual officials violating the federal records laws in one-off heists, but nothing quite like the reportedly routine and open violations of the PRA by the president himself.

Trump’s Presidential Records Act Violations: Short- and Long-Term Solutions

Second, and relatedly, Trump and his aides were warned about their violations of the PRA early on in his administration. The Washington Post reports that “[a] former senior administration official said Trump was warned about the records act by McGahn, as well as his first two chiefs of staff, Reince Priebus and John F. Kelly, who lamented to allies that Trump would ‘rip up everything,’ according to a person who heard his comments. Passantino also warned other aides about preserving documents.” But Trump and his aides continued to destroy records in spite of those warnings.

Third, Trump’s destruction of presidential records is part and parcel of a modus operandi that he has apparently adhered to for decades to avoid transparency and accountability. Trump has long eschewed email use, reportedly for fear of being hacked and, more importantly, “to shield himself from lawsuits.” He has also championed the use of non-disclosure and non-disparagement agreements to prevent individuals with knowledge of his affairs from coming forward, and continued to do so while in office. (In the interests of transparency, the authors note that their organization, Protect Democracy, is representing former Trump campaign staffer Jessica Denson in an ongoing class-action challenge to the campaign’s non-disclosure agreement.) Most recently, former President Trump has (unsuccessfully) attempted to invoke executive privilege to try to shield his administration’s records from the Jan. 6 select committee. As much as Trump purports to value free speech (and especially his own), he has long taken draconian measures to silence perceived enemies and to prevent the public from ever learning facts that do not comport with his narrative.

Fourth, Trump is the only president of the United States to have condoned an insurrection that unfolded while he was in office. As a federal district court observed in denying President Trump’s attempt to prevent the Jan. 6 committee from obtaining his records, “discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance.” His apparent willful destruction of presidential records critical to that inquiry may exacerbate his damage to the rule of law in this country.

Possible Liability

There are several provisions of federal criminal law imposing liability on officials who violate the PRA and the FRA. 18 U.S.C. § 641 makes it a felony to, among other things, dispose of any record that belongs to the United States. 18 U.S.C. § 1361 makes it a felony to injure property of the United States.

More specific to records, 18 U.S.C. § 2071 makes it a felony to willfully and unlawfully remove, mutilate or destroy—or to attempt to remove, mutilate or destroy—any record deposited in any public office or with any public officer of the United States. That same provision also makes it a felony for anyone having custody of such records to remove, mutilate or destroy those records and imposes severe consequences: a violation requires the individual to “forfeit his office and be disqualified from holding any office under the United States.”

In addition to these provisions, 18 U.S.C. § 1505 makes it a felony for individuals to obstruct congressional investigations.

Under a straightforward reading of any of these statutes, Trump (and those who knowingly helped him destroy presidential records) could well be held liable for violations of criminal law. Note that at least some courts have held that the statutes prohibiting the destruction of public records are specific intent crimes, meaning that violators must know they are breaking the law to be convicted. But that should not be an obstacle here, as reporting indicates Trump and his aides were specifically and repeatedly warned about violating the PRA.

The Department of Justice should take seriously the possibility of investigating and prosecuting former President Trump and his close aides for any PRA violations. Doing so is critical not only to deterring future noncompliance but also to ensuring that there is accountability for Trump’s role in the Jan. 6 insurrection.

To that end, on Feb. 8, Citizens for Responsibility & Ethics in Washington (CREW) and the National Security Archive sent Attorney General Merrick Garland and FBI Director Christopher Wray a letter, requesting that they “investigate whether former President Trump violated criminal laws by willfully destroying and mutilating his presidential records while in office.” And on Feb. 9, the National Archives and Records Administration itself requested that the Department of Justice undertake an investigation.

In the event that the Department of Justice does not pursue these criminal authorities, the path to civil liability for PRA violations is exceedingly narrow. Various groups of historians, archivists and government watchdogs have filed civil actions to compel compliance with the PRA. But as described in a bit more detail below, courts have held that while they may review an administration’s PRA implementation guidelines for facial compliance with the PRA, they may not oversee day-to-day compliance with those guidelines or the PRA, and even were they to do so going forward, it would not create backward-looking accountability for Trump-era violations.

It may be more plausible to obtain liability in connection with already pending litigation or formal proceedings. As Brian Greer explained last year on Lawfare, there are paths to liability in the event of the destruction of documents covered by a pending congressional subpoena or a preservation order in FOIA litigation.

In addition, it is quite standard in civil litigation and congressional proceedings to draw adverse inferences against a party that destroys or fails to preserve relevant evidence. A court or congressional committee could take that approach in pending litigation involving former President Trump and others in his circle involved in the destruction of documents relevant to the proceedings.

Strengthening the Presidential Records Act

While there are potential paths to accountability for the deliberate destruction of presidential records in violation of the PRA, they are narrow. In the meantime, Congress should strengthen the PRA in order to prevent future administrations from engaging in the kinds of willful violations President Trump appears to have committed.

Congress has amended the PRA before to fill in gaps. In the Presidential and Federal Records Act Amendments of 2014, for instance, Congress added a provision to the PRA to prohibit the president and White House employees from using personal email accounts and other “non-official electronic message” accounts to circumvent the PRA.

Today, the most persistent PRA problems stem from the lack of meaningful enforcement mechanisms and the statute’s reliance on a president who acts in good faith. In a series of decisions navigating the separation of powers concerns voiced by Nixon and addressed by the Supreme Court in Nixon v. Administrator of the General Services and the discretionary-mandatory dichotomy in the Administrative Procedure Act, the U.S. Court of Appeals for the D.C. Circuit has held that courts (a) may review any PRA guidelines issued by a president to ensure that the definitions of what constitutes a presidential record comport with the PRA, but (b) may not entertain a mandamus action premised on a president’s failure to issue any guidelines at all (because nothing in the PRA requires the president to issue such guidelines), and (c) may not review a White House’s day-to-day compliance with the PRA. The result is that, as things stand, a president can largely evade any meaningful accountability for violations of the PRA while in office by either not issuing PRA guidelines, or (like the Trump administration did) issuing facially valid guidelines, and, in either case, flagrantly destroying records and declining to self-report such destruction to the archivist.

A coalition of organizations, headed by Open The Government and chock-full of leading experts on the federal records statutes (including Anne Weismann), has proposed a set of common-sense reforms that would do just that.

Most notably, Congress should amend the PRA to entirely eliminate the president’s ability to destroy presidential records while in office (44 U.S.C. § 2203(c)–(e)). The risk that doing so would preserve records of little value is far outweighed by the risk that an abusive president will destroy evidence of wrongdoing. And any concerns that such a revision might inhibit open and frank dialogue in the White House (and so much so that it would give rise to separation of powers issues) are already addressed by the PRA. The PRA permits presidents to keep records regarding “confidential communications requesting or submitting advice, between the President and the President’s advisers, or between such advisers” entirely sealed for 12 years after leaving office, and potentially longer, to the extent such records fall within one of FOIA’s exemptions. Although FOIA’s deliberative process privilege does not apply to presidential records following the restricted access periods, the idea that any interest in facilitating open and frank conversation within the executive branch eventually yields to the public interest in access to historical records is consistent with the FOIA Improvement Act of 2016, through which Congress amended FOIA to provide for a 25-year sunset on the deliberative process privilege. Deleting these provisions would not only undermine the president’s ability to destroy records, but it should also (in theory) enable litigants to challenge the ongoing destruction of presidential records in real time.

The coalition also recommends that presidents be required, at the outset of their administrations, to issue PRA guidelines, which must be approved by the archivist. The benefit there is clear: It heads off any future administration that might otherwise simply refuse to issue any PRA guidelines. In addition, requiring the archivist to review the guidelines provides a (somewhat) external check on the president (especially as the archivist is likely to be a holdover from a prior administration). And making these requirements mandatory should further enable litigants to sue for any failure to comply with the requirements.

Other suggestions include mandatory monitoring and annual reporting requirements from the Executive Office of the President to NARA and Congress, which would give NARA and Congress insight into the management of presidential records; prohibiting the use of private devices and disappearing messaging apps; a reporting requirement that would require an executive branch entity (such as the Office of Science and Technology Policy or the Office of Administration, and/or the National Institute of Standards and Technology) to issue regular reports to NARA and Congress regarding the technological landscape to ensure that guidelines keep up with rapidly evolving technology and enable identification of systemic noncompliance; a provision specific to visitor logs to prevent administrations from seeking to custody those records with an agency outside the White House to avoid the PRA; and a provision requiring the expedited disclosure of records revealing foreign gifts after a president has left office.

Conclusion

The recent reporting about former President Trump’s cavalier disregard of the PRA will once again test the limits of checks and balances and democratic accountability. There are some mechanisms available to the Department of Justice and others to create liability or other forms of accountability for deliberate violations of the law. These are important to pursue—principally, in order to prevent recurrence should somebody with Trump’s document-destroying proclivities again be in power. Beyond that, Trump’s document habits reinforce the need to strengthen guardrails and ensure that various actors in the United States’ constitutional system have the ability to check a law-breaking chief executive. There are ample ways to do so, and Congress and the current administration should work to make them law.

Disclosure: The authors work for Protect Democracy, which has represented Lawfare editors Benjamin Wittes, Jack Goldsmith, Scott Anderson and Susan Hennessey on a number of separate matters.

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