The law requires sitting presidents to preserve all records relating to the performance of their official duties — but it has no real enforcement mechanism.
From tearing up documents and hiding transcripts of calls with foreign leaders to using encrypted messaging apps and personal email accounts for government business, the Trump White House’s skirting of records preservation rules could limit the incoming Biden administration’s visibility into highly sensitive foreign policy and national security secrets.
The mysteries have swirled over the past four years: What was really said during Trump’s many phone calls and one-on-one meetings with Russian President Vladimir Putin? What has Trump’s son-in-law Jared Kusher discussed with Saudi Arabia’s Prince Mohammed bin Salman on WhatsApp, where messages can be automatically deleted? Did Trump’s aides memorialize any of the reported conversations he had with U.S. and foreign officials about boosting his business empire?
The Presidential Records Act, which requires a sitting president to preserve and ultimately make public all records relating to the performance of their official duties, was passed 42 years ago in response to President Richard Nixon’s attempts to hide the White House tapes that led to his downfall. The law makes presidential records available to the public via the Freedom of Information Act beginning five years after the end of an administration.
But it has no real enforcement mechanism and relies on the president’s good faith compliance, said Kel McClanahan, the executive director of the law firm National Security Counselors.
“Out of respect for the institution and the separation of powers, when Congress passed the PRA, they gave the White House the right to decide what constitutes a presidential record,” McClanahan said. “They never envisioned a president who would come in and just start shredding stuff.”
There are some guidelines: The National Archives defines presidential records as any documentary materials “created or received” by the president, their immediate staff, or anyone in the Executive Office of the President “whose function is to advise or assist the President” in the course of carrying out official duties. But it is not clear how much has been preserved given Trump’s habit of ripping up documents — the employees once tasked with taping them back together were summarily fired in 2018 — and the White House’s general paranoia about leaks.
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The law requires sitting presidents to preserve all records relating to the performance of their official duties — but it has no real enforcement mechanismhttps://t.co/yLIXu7Xj1h
— POLITICO (@politico) November 9, 2020
NARRATOR: They were actually criminals. https://t.co/5kneYm95jv
— Rick Wilson (@TheRickWilson) November 9, 2020
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