Democracy, history and the Presidential Records Act

On June 10, 2018, Americans learned that the president of the United States was routinely ripping apart memos, letters, annotated newspaper clippings and other pieces of paper that crossed his desk. 

Career employees with top secret clearances were paid approximately $35 per hour to painstakingly patch together shards with the same tape the rest of us are using this month on holiday gift wrap. This practice dated back to his days as an executive in privately held companies with few responsibilities to public culture, the public record or history itself. As is so often the case, experience in the private sector was poor preparation for the very different duties and responsibilities of public office.  

It might seem common sense that a president of the United States cannot blithely destroy public records, and indeed an outcry ensued: surely this must be a violation of the Presidential Records Act (PRA), enacted in the aftermath of Watergate and Richard Nixon’s insistence that he was entitled to retain custody of his records, including his White House tapes. Donald Trump’s propensity for deleting his Twitter posts raised the ante. Other examples would follow, such as White House staff violating instructions from White House attorneys on appropriate preservation of various forms of digital communication. Then there was the president’s confiscation of the notes his interpreters took of his conversations with Russia’s Vladimir Putin in Hamburg, Germany, and the concealment on a highly classified computer system of the reconstructed transcript of the telephone call between Trump and Ukraine President Volodymyr Zelensky. 

Common sense maybe. But often the law is more complicated (imagine the very concept of “non-record records”), and in this case the law is at once outdated, vague and toothless. In October 2017 a Justice Department attorney was even able to argue successfully that, “courts cannot review the president’s compliance with the Presidential Records Act.” As U.S. District Judge Christopher Cooper put it, “Isn’t records management and destruction completely discretionary under the statute?” 

If so, then it’s time to change the statute. Sen. Christopher Murphy (D-Conn.) has introduced legislation that defines what constitutes a presidential record (including digital records and their relevant metadata) with sufficient precision not only to mitigate ambiguity but also to limit White House discretion and facilitate enforcement. It also bolsters the oversight role of the archivist of the United States in ensuring that the retention, management and disposition of the records are both consistent with the law and follow best archival practices. The legislation does not mandate the preservation of every record. But it does demand the enforcement of the mandate that records cannot be destroyed without the notification and consent of Congress and the archivist of the United States. 

The prohibitions and requirements of this legislation are by no means a matter of partisan interests. Although focused on the vulnerable period of presidential transition, its provisions are not bound by time or circumstance. On Jan. 20, legal custody of the records documenting the Trump presidency will be transferred to the National Archives and Records Administration (NARA), which includes the presidential library system. From that moment on, their preservation is the responsibility of the professional civil servants at NARA, which requires adequate funding as called for in this legislation.

Nor will the new legislation affect existing PRA safeguards of privacy, personal information and national security — NARA staff operate according to professional ethical standards and follow established procedures with regard to classification and declassification. At the same time, the legislation safeguards values that are equally important in a democracy: openness; transparency; and accountability. Taken together these goals enable and promote histories that are thorough, accurate and reliable — and subject to appropriate revision as more records become available over time. 

Every generation of historians uses these records to tell the story of American leaders at home and abroad, with lessons for contemporary leadership and civic participation. Access to presidential records is essential to our basic understanding of who we are, and how our government works. Transparency and accountability are core values of a thriving democracy, and the ample access to its government records that the United States has historically granted to its citizens, not just researchers, is a hallmark of its political culture. The norms as well as the requirements of its archival record-keeping and management are the envy of democracies worldwide. 

It’s one thing to sit in a dark corner of a private business with no stockholders, limited legal obligations and no civic responsibility to posterity; it’s quite another to occupy the most powerful corner of our democracy and exercise the authorities vested in that position. 

Historians use the records generated by the president, his advisors and his staff to piece together narratives that inform successive administrations and educate all citizens, whether of the United States or the world. NARA is a major national treasure; its integrity is among our most vital interests. Ignorance of the past poses grave threats to the future. 

James Grossman is executive director of the American Historical Association. Follow him on Twitter @JimGrossmanAHA. Richard Immerman is chair of the Historical Documentation Committee of the Society for Historians of American Foreign Relations.