The modern rules dictating the proper management of US government records were born after a major crime. In 1974, President Richard Nixon declared that it was his right to destroy recordings made in his White House, including secret recordings of Oval Office meetings. But the United States Supreme Court decided otherwise. After this decision and Nixon’s resignation, Congress passed the Presidential Recordings and Materials Preservation Act to put Nixon’s records in the National Archives, and later the Presidential Records Act of 1978, which made clear that the government – not the private citizens who once worked in the White House – possessed all presidential records.
This origin story is what gives US archival laws and regulations their impact. Everyone from the president to the youngest federal bureaucrat takes an oath to protect the Constitution and is told that record keeping is a crime. Many citizens, including those in or out of office, have been charged with violating these rules, their careers destroyed or damaged, some sent to jail. Even with these “lesser” cases, it is Nixon’s example that sets the bar, indicating that this is not a minor issue or mere convention. Protecting the paper of a presidency is about nothing less than the rule of law, government accountability, and whether everyone in our government and in this country is held to the same standards.
We both had the honor of taking this oath to serve in the executive branch (both in the Obama administration and one of us, Jon, in the Clinton administration as well). In our first days in office we saw archival briefings, dry and detailed, and in our last days we knew that the archives – good and bad – were not ours and should be preserved. This experience working for government underscored exactly what many Americans who have never entered a federal building intuitively believe: the president must follow the same rules as everyone else. That’s part of why we were furious to learn that former President Donald Trump allegedly removed unique materials from the White House which then had to be retrieved from his Mar-a-Lago resort. And that’s why we believe the Justice Department should investigate Trump for his handling of government records and, if the facts warrant, prosecute him, just as other lesser Americans have been prosecuted for similar behavior. .
The Presidential Archives Act and other archival regulations aim to ensure that all documents and materials are protected and preserved for posterity. Executive privilege protects the president while in office; thereafter these documents explain what the Commander-in-Chief and his teams did or did not do, as well as why. This responsibility is directly tied to the heart of the American government’s creed – that the governed, not an individual sitting in government, are the source of all authority. The law guarantees that Americans will eventually know exactly what their government and their elected and appointed representatives are doing with the power granted by the people. Although reasonable disagreements exist on how and when the National Archives can make these records accessible, advocates of good government and democracy agree on the importance of eventual disclosure and accountability.
This is why Trump’s behavior caused an outcry, and why the National Archives also asked the DOJ to investigate. Although the 45th president’s predilection for tearing up documents (and would also have flushing some down the toilet) has drawn the most attention, the brazen theft – and it is a theft – of at least 15 boxes of White House documents is the most alarming. The materials taken were not private musings written in a diary but, among other things, correspondence with North Korean dictator Kim Jong Un, according to The New York Times. This is exactly the kind of material – sensitive communications with another head of state – that is crucial to preserve. Although who knows what else may be missing, National Archives staff appear to have secured most of these records at Mar-a-Lago, and Trump claims it happened without incident. And as one might have expected, some of the stolen materials seem have been classified, and left vulnerable for the past year. Thusday The Washington Post reported that some of the information brought to Mar-a-Lago was designated “top secret”. It is no longer just about removing important documents for historians and accountability. It has turned into a veritable intelligence scandal that could undermine both current national security and democratic standards in the future.
In truth, archival laws have lost some of their power due to uneven enforcement, with relatively light sentences granted to recent notorious offenders. But letting Trump’s snub to the law stand could do even more damage. Failure by the DOJ to hold a president accountable for misconduct will weaken a possibly irrevocable standard that has prevailed for nearly 50 years. When serving at the pleasure of a president, as so many in the federal government do, find out whether the person in office will be held accountable. If not, anyone taking the oath on the first day or closing their case on the last will do so knowing that the rules only matter in some cases, or that they don’t matter at all. Over time, errors and wrongdoings can proliferate from the top down, especially in administrations less concerned with following the rules. In administrations where presidents set a good example, such standards remain in place, but if in the future other leaders are less principled, maintaining these laws will be even more important.
In this way, these 15 boxes represent another of Trump’s blows to democracy. At a time when the rule of law and fundamental democratic standards are under attack, it is even more important to respond to clear breaches of the rules. If the country does not hold the former president accountable for breaking a law, what will prevent the next one?