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the law is more complicated (imagine the very concept of “non-record records”), and in this case the law is at once outdated, vague and toothless.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.