The investigation into Donald Trump’s possession of classified presidential records at his Mar-a-Lago residence will eventually come to a conclusion as to whether laws were violated and whether criminal penalties apply. Buried far in the background, however, is another set of questions about the laws themselves – conferring rights and benefits on former presidents – and the related norms and practices that enable them to access information. classified as national security. The events of the past few weeks have made it clear that current laws and standards governing former presidents’ access to classified documents need to be reviewed and reformed.
Former presidents can obtain classified documents from their own administration and, in practice, only a request to the Archivist of the United States is required. The current administration has no formal role in this, nor is there a prescribed process by which the intelligence community is consulted and given the opportunity to raise concerns. This access is granted to former presidents who are now private citizens based on seemingly untested assumptions about the role, and even the respect and courtesy due to former occupants of the Oval Office. And it is provided regardless of their reason for interest or use of such material.
What might these interests or uses be? Perhaps a former president wants access to classified documents when writing a memoir – to verify facts in the interest of an accurate record of national security decision-making. It seems reasonable to respond to requests for this purpose. But a former president may have other interests in the material, such as furthering his political activities or ambitions, or his business affairs. The law makes no distinction in granting its broad grant of access.
Along the same lines, it is customary to treat a former president as eligible to receive the highest levels of classified information. A new president automatically gets this access when elected to office: it comes with the keys to the White House. It is granted, in effect, by the American electorate, but then it lasts forever. Again, why this should be so is unclear. If the current president wishes to inform a predecessor with classified information, this can be done on a case-by-case basis, through specific waivers granted for specific purposes.
What is even stranger is that while a former president enjoys these rights and privileges, the Presidential Records Act (PRA) restricts the running President’s access to records of a former administration, classified and unclassified. Unless the former president authorizes access, the current president can only access documents from the administration of the former president that are “necessary for the conduct of [official] business” and “otherwise not available”. Former President Trump and his attorneys have previously objected on this basis to the Biden administration’s access to boxes voluntarily returned from Mar-a-Lago. The former president’s original filing seeking a special master claimed that under the PRA, a former president had “substantially complete control” of his administration’s records.
This claim will likely fail, as there is a strong case for granting the current administration access to voluntarily returned boxes. But the strangeness of the legal architecture behind the assertion – in fact, that there is a problem here – suggests the need for reform.
At a minimum, after leaving office, former presidents who seek access to classified documents should be subject to the same processes as anyone else who requests such access; that is, certifying under penalty of perjury and in writing that there is a legitimate need for such classified material, and acknowledging that the unauthorized release of such classified information could result in serious harm to the national security interests of United States and be subject to criminal prosecution.
In addition, the reform should give a role to the views of senior career intelligence officials on the risks posed by sharing with a private citizen, even a former president, information which, if mishandled and disclosed, could harm national security. This process can be tailored to the unique circumstances of a former president’s request, such as allowing certain presumptions to operate in favor of the former president: writing a memoir or preparing to participate in a requested diplomatic initiative by the holder. If such an interagency intelligence community review suggests access should be defined or changed, the matter could be referred to the current president for a final decision. And the access ultimately provided could be limited to one location, an appropriate US government facility.
This process would not only serve the national interest; it would also be advantageous for former presidents. In their private lives, they may not have the resources at their disposal to distinguish between appropriate and inappropriate information that the government should provide, or to ensure the proper handling of all classified information. A former president seeking records in good faith would appreciate this support, just as current presidents typically rely on such support for access or classification decisions that involve vital national security interests. The process we expect a past president to respect — as most have in the past — should be no less suitable for a former president.
Of course, it is salutary that former presidents occupy a unique place in our national life, able to make good use of their position in the creation of charitable foundations and remaining ready to advise or assist the incumbents when called upon to do so. TO DO. But they are private citizens and, upon leaving office, they can resume the pursuit of private interests. The dangers of an imperial presidency are serious enough: there is no need to tack on a post-imperial presidency.