The Washington PostDemocracy Dies in Darkness

Violating the Presidential Records Act is no small transgression

The law that makes Trump’s papers public property has its origins in Watergate

Local law officers are seen in front of the home of former president Donald Trump at Mar-a-Lago in Palm Beach, Fla. (Giorgio Viera/AFP/Getty Images)

On Monday, the FBI searched the Mar-a-Lago property of former president Donald Trump. The move, and the ensuing uproar on the right, thrust the 1978 Presidential Records Act into the spotlight — though new reporting on Thursday indicated that the agents’ search was focused on highly classified documents. But just violating the Presidential Records Act is not a trivial offense — as some Trump allies have implied by falsely equating it with having overdue library books — and the roots of the law make that clear.

It all goes back to Richard M. Nixon. Without that president’s transgressions, Trump would have been free to do whatever he wanted with many of his personal records — including selling them, burning them, even flushing them down the toilet. Instead, Congress has established that presidential records belong to the people, not the officeholder, for a very good reason.

From the nation’s founding to the 1970s, presidents considered their papers their private property. Though subject to inquiries from curious historians during his time in office, George Washington had no national library, archive or repository in which to deposit his papers and they were left to be “scattered throughout the country, and around the world.”

The survival of presidential records relied on luck and circumstance. When William Henry Harrison’s cabin burned in 1840, so did most of his papers. Abraham Lincoln left his records to his son, who held onto them until after World War I. Florence Harding, the wife of President Warren G. Harding, burned “practically all” of his letters. William Howard Taft, by contrast, maintained a thorough inventory of his presidential materials.

As a 1977 report by the National Study Commission on Records and Documents of Federal Officials put it, these arrangements created a haphazard system which produced “a very full collection if the President was a saver, a small one if he were a destroyer.”

It was not until Franklin D. Roosevelt that a president made a forward-looking decision about his materials. Roosevelt decided to deposit his records in a presidential library in Hyde Park, N.Y. — the first of its kind. Roosevelt declared his library “an act of faith” in the American people to “learn from the past.” Roosevelt personally provided the land for the library, but delegated responsibility for the management to the Archivist of the United States.

This model took hold and manifested in the Presidential Libraries Act of 1955. The wording of the law, however, only encouraged presidents to donate their materials to a presidential library. It did not compel them to do so, maintaining the traditional understanding of those materials as private property.

Presidential records came to the forefront of the national consciousness in July 1973 when Nixon’s deputy assistant, Alexander Butterfield, revealed the existence of a secret recording system within the White House. The revelation sent the White House team — which had not known Butterfield was going to disclose this fact — into disarray, with the fate of the tapes becoming a matter of national urgency.

When Watergate Special Prosecutor Archibald Cox subpoenaed the tapes, Nixon refused to comply, asserting executive privilege and that the recordings were his personal property. Some of Nixon’s aides and allies, including Pat Buchanan and Vice President Spiro Agnew, advocated for the president to burn the tapes. Nixon refused, believing that the recordings would exonerate him and agreeing with the advice of his chief of staff, Alexander Haig, that burning them would create an “indelible impression of guilt.”

This decision turned the fate of the tapes into front-page news in 1973 and 1974 as the Watergate scandal engulfed the United States. When the House Judiciary Committee subpoenaed the tapes, Nixon released transcripts but again refused to hand over the original recordings. When he refused a further subpoena from the new Watergate Special Prosecutor Leon Jaworski (after Nixon had fired Cox in the “Saturday Night Massacre”), Jaworski took the case to the Supreme Court.

In a unanimous ruling, in The United States v. Nixon the Supreme Court ruled: “the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.” The eventual disclosure of the contents of the tapes, including the infamous “Smoking Gun” tape — which exposed that Nixon actively took part in the coverup — would seal his fate.

As Nixon’s time in the White House wound down, he wanted to take his papers and the tapes to his “Western White House” in California, outside of the prying eyes of Washington. As the New York Times reported, Nixon’s lawyers sought to draw on history to justify this decision, noting that it was “historical precedent dating to George Washington” that granted Nixon this power.

Yet, President Gerald Ford was reluctant to comply with his predecessor’s wishes, despite an opinion from Attorney General William Saxbe that the tapes and documents were Nixon’s “private property.”

This led to Nixon striking a compromise with the director of the General Services Administration, Arthur Sampson. He left more than 40 million pages of documents and many of the much-disputed White House tapes with the National Archives in accordance with the Federal Records Act of 1950. But these records remained Nixon’s personal property and no access would be granted without his permission. Importantly, the agreement also codified Nixon’s right to destroy the tapes at any point in the future.

While Ford deemed the matter settled, the newly emboldened post-Watergate Congress disagreed. In September 1974, a month following Nixon’s resignation, Sen. Gaylord Nelson (D-Wis.) introduced the Presidential Recordings and Materials Preservation Act. Despite the broad-sounding name, the measure applied solely to Nixon. It sought to undo the “Nixon-Sampson Pact” and to order the General Services Administration to take “complete possession” of the Nixon White House materials and to screen and prepare them for public release. Congress quickly passed the law.

The day after Ford signed it, Nixon challenged the law in federal court. The Supreme Court eventually ruled 7-2 against Nixon, declaring that “claims of Presidential privilege must yield” to “maintaining access to [Presidential materials] for lawful governmental and historical purposes.”

Having dealt with the pressing issue of Nixon, Congress turned to consider a longer-term solution to this issue with the Presidential Records Act of 1978. This measure recast how presidential documents were considered. These materials would no longer belong to the president as their private property, but rather “complete ownership, possession, and control” would rest with the public. The act also placed the onus on presidents to ensure that they “preserved and maintained … Presidential records concerning the activities, deliberations, decisions, and policies of their time in office.”

This law was part of a broader raft of legislation that sought to make government more accountable to the public. Most prominent of these was a significant liberalization of the Freedom of Information Act, which sought to “purge the body politic of the secrecy excesses which marked the sordid Watergate coverup,” in the words of one of its champions, Rep. William S. Moorhead. But Congress’ reasoning went beyond Watergate. Addressing more widespread abuse of the presidential office and executive branch, including the war in Vietnam and Cambodia, and unlawful activities of the Central Intelligence Agency also drove lawmakers. Underlying these transparency and accountability laws was the spirit, as the Government in the Sunshine Act of 1976 declared, that “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”

This history exposes how, despite what Trump and his allies insist, the battle with the National Archives and the FBI is about far more than just “paper.” It is about the right of citizens to know what their elected officials are doing and to hold them to account — even after they have left office. Americans learned in the 1970s that doing so required legislation to ensure access to presidential records, and only through rigorous enforcement can the law’s protections preserve public accountability.

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