Presidential records belong to the American people, not former presidents
Before the 1978 law, passed after Watergate, every president from Washington to Carter was free to do whatever they pleased with their records, including flushing them down the toilet.
During the years I was privileged to be in the leadership of the U.S. Senate Homeland Security and Governmental Affairs Committee, one of the least compelling topics we dealt with was the rules regarding presidential records. To many members of the committee and the news media, hearings that we were required to hold on that subject seemed irrelevant or boring, not anyone’s idea of must-see TV.
After the search warrant recently carried out at former President Donald Trump’s Mar-a-Lago estate in Palm Beach, Florida, everyone is suddenly talking about presidential records, especially because some of the records were marked classified, with potentially serious consequences for national security.
How to deal with them is now an urgent and, for many, divisive topic of discussion. But there should be nothing controversial or remotely partisan about how we maintain these records. Simply put, they belong to the American people, not former presidents, regardless of what political party a president belongs to.
What is the Presidential Records Act and why is it so important?
When was the Presidential Records Act adopted and why is it so important to our country? Congress passed the PRA in 1978 after the Watergate scandal and the resignation of President Richard Nixon.
The Presidential Records Act defines both presidential records, which belong to the public, and personal records. According to the PRA, public presidential records encompass "documentary materials," irrespective of format, created or received by the president or his staff working on official or ceremonial duties. It also includes some documents related to the president's or staff's political activities if they also touch on the president's official duties.
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Nixon had been forced by the Supreme Court to turn over the now infamous tapes that led to his impeachment. Some in his inner circle had actually advised Nixon to burn the tapes! After that episode, Congress was naturally concerned about the destruction and loss of presidential records, and it passed the PRA, which gave custody of all former presidents’ records to the National Archives and Records Administration.
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The act made clear that these records were important to the nation’s past and future and were not the property of any individual. They belong to the American people. The PRA imposes on the national archivist “an affirmative duty to make such records available to the public as rapidly and completely as possible.”
An incumbent president has discretion to restrict access to records for up to 12 years after leaving office. But, with a few stated exceptions, following this period those records must be automatically released in accordance with the standards in the Freedom of Information Act.
Among its other provisions, the Presidential Records Act:
►Establishes in law “public ownership of all presidential records.”
►Requires the president and White House staff to take “all practical steps to file personal records separately from presidential records.”
►“Establishes that the presidential records automatically transfer into legal custody of the archivist as soon as the president leaves office.”
►Allows the incumbent president, not ex-presidents, "to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once the views of (the archivist) on the proposed disposal have been obtained in writing.”
Before the PRA became the law of our land, every president from George Washington to Jimmy Carter (who was president when the act was enacted) was free to do whatever they pleased with their records, “including selling them, burning them, even flushing them down the toilet,” as historian Mitchell Robertson has written. Until the 1970s, the survival of presidential papers relied on “luck and circumstance.”
President Washington’s records were, according to Mount Vernon, “scattered throughout the country, and around the world.”
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Releasing classified information can jeopardize national security
Today, thankfully, many presidential records are housed in presidential libraries, but only under the authority of our national archivist. The records are available to historians, students, journalists and members of the public who want to know what happened in that president’s administration in order to learn from history and hopefully protect and improve our democracy.
The safekeeping of presidential records is even more important when the information they contain has been classified. Our government must keep some information secret because its release could do grave harm to our security – especially when not only the contents but also the methods and sources that our intelligence and military agencies use are revealed to foreign adversaries.
Releasing classified information can jeopardize vital national security operations. It does not take a genius to trace the contents of documents to their source, and when those sources are human, to put the lives of American agents at risk. That is exactly what happened in 2010 when Julian Assange released an enormous amount of classified information given to him in violation of U.S. law.
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In due time, the Justice Department will decide whether it will charge anyone with a crime related to the records found at Mar-a-Lago. Whether DOJ will is not clear, but one thing that should be clear to everyone now is that the way presidential records are handled by presidents and their aides is critically important to our country, our values, our history and our future. The records of presidents are the property of the American people because in our democracy it is the people, and not any president, who are sovereign.
Joseph Lieberman was U.S. senator from Connecticut from 1989 to 2013, and the Democratic candidate for vice president in 2000. He is founding co-chair of the bipartisan organization No Labels. Michael Alexander was staff director of the Senate Homeland Security & Government Affairs Committee from 2006 to 2013.