Preserving Presidential Records—From Nixon’s Watergate Tapes to Trump’s “Burn Bags,” Lots of Controversy

From a Washington Post story by Gillian Brockell headlined “Presidential Records Act: From Nixon’s Watergate tapes to Trump’s ‘burn bags'”:

The National Archives and Records Administration removed boxes of documents from former president Donald Trump’s Mar-a-Lago home last month after determining they had been improperly taken from the White House in violation of the Presidential Records Act….

This revelation comes after years of reporting about Trump’s propensity to tear up paper documents, also in violation of the PRA. One senior Trump White House official told The Post that White House staffers often put documents into “burn bags” to be destroyed.

For most of the nation’s history, an outgoing president had personal control over his records. Some presidents took their documents with them; some destroyed them. President Franklin D. Roosevelt made the unprecedented move of donating his to National Archives and Records Administration so they could be made available to historians and the American public. (We have no way of knowing that Roosevelt or his administration didn’t destroy records that were less flattering.)

Then came President Richard M. Nixon and the Watergate scandal. While in office, Nixon refused to hand over White House records, including his infamous tape recordings, citing executive privilege.

After Nixon resigned in August 1974, it became clear that if he maintained control of his White House records, historians and the American people might never learn what Nixon knew and when he knew it. Though he agreed to have a federal agency store his records temporarily, he would not allow access without his permission, and he planned for many of the records to be destroyed.

In response, Congress passed the Presidential Recordings and Materials Preservation Act of 1974. It ordered the General Services Administration to obtain Nixon’s records — all 42 million documents and 880 hours of recordings — and archivists to determine what was personal and what was of public interest for preservation. The personal items would be returned to Nixon, and the ones of public interest … well, Congress hadn’t quite figured out what to do with them yet.

The day after the law went into effect, Nixon challenged it in court, claiming it was unconstitutional and violated his First Amendment right to free association, not to mention the separation of powers. Four years later, in June 1977, the Supreme Court ruled 7-2 that the act was constitutional.

The next year, Congress introduced a bill essentially extending the Nixon-only law to all presidents and vice presidents, forever making historically significant records the property of the American people. The records would be preserved by the National Archives and Records Administration and would not be available to the public until five years after a president left office.

On Nov. 5, President Jimmy Carter signed the Presidential Records Act of 1978 — though it didn’t go into effect until Jan. 20, 1981, which, as it turned out, was President Ronald Reagan’s first day on the job. (Carter voluntarily donated his records.)

The bill also created a process for Congress, courts and subsequent presidents to access the records before the five years were up. For example, when Congress investigated President Bill Clinton for his controversial pardons on his final day in office, it obtained FBI testimony, financial records and written notes from Clinton’s records, according to website Just Security, which maintains a detailed list of these exceptions.

In November 2001, weeks after the Sept. 11 terrorist attacks, President George W. Bush issued an executive order limiting access to Reagan administration materials whose 12-year shield was supposed to have expired, including records from Bush’s father, George H.W. Bush, who had been Reagan’s vice president.

The Bush administration argued the records had to remain under wraps for national security reasons. The American Historical Association, among other groups, sued, and the executive order was partially struck down in 2007. President Barack Obama revoked it when he took office in 2009.

In the 21st century, administrations of both parties have violated the act as email and texting have taken over as methods of communication. In 2014, the PRA was amended to specifically include these and to stop the use of personal email for White House business.

In the waning days of Trump’s presidency, as he faced a second impeachment and potential post-presidency legal exposure, the AHA again filed a lawsuit, with other groups, to stop what it feared would be “a bonfire of documents in the Rose Garden.” The lawsuit was withdrawn after Trump left office.

Gillian Brockell is a staff writer for The Washington Post’s history blog, Retropolis. She has been at The Post since 2013 and previously worked as a video editor.

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