Last week, Politico reported that the National Archives has been warning White House lawyers to make sure that Trump staffers comply with “document preservation laws,” specifically the Presidential Records Act, which requires that all White House communications be captured for posterity. The National Archives isn’t the only institution with concerns. The House Oversight and Government Reform Committee has asked the White House to provide more information about whether staffers are adhering to the Presidential Records Act. (The White House refused.)
This comes after revelations that top White House aides — including first daughter Ivanka Trump and her husband Jared Kushner — have been using personal email to conduct official business. Like President Richard M. Nixon, whose transgressions led to the law in question, White House staffers conducting the nation’s business away from public oversight seem motivated by a desire to control history’s perception of them. And like Nixon, they may be forced to reckon with an uncomfortable truth: Presidential recordkeeping is as much about remembering our leaders’ missteps as it is about memorializing their triumphs.
Less than a month after Nixon resigned the presidency under the cloud of Watergate, he struck an eyebrow-raising deal with Arthur F. Sampson, the administrator of the General Services Administration (GSA). The Nixon-Sampson agreement allowed the former president to effectively retain control over his papers (and tapes), which the GSA would transfer to him in San Clemente, Calif., for eventual placement in his presidential library.
The timing of the Nixon-Sampson agreement, in the middle of the Watergate investigations, was suspect. New York Times reporter Anthony Lewis laid out a scathing indictment of the deal’s “extraordinary provisions” that would allow Nixon to keep essential documents from prosecutors and the public. The agreement was “about as even‐handed as one negotiated between victor and vanquished — with the United States in the posture of vanquished.”
And yet, Nixon’s request wasn’t all that unusual. At the time, presidents owned their official White House materials, and the preservation of those papers was up to their discretion. Many presidents, including George Washington and Thomas Jefferson, left their papers to heirs who helped burnish their legacies. In Franklin Pierce’s case, his destruction of documents was, perhaps, more remarkable than his time in office.
It was simply an accepted tradition that presidents would exit Pennsylvania Avenue clutching their White House records (and sometimes the furniture).
But Nixon had gone too far. In a judgment blocking him from absconding to California with his records, Judge Charles Richey wrote, “To uphold former President Nixon’s claim of ownership would be to place him above the law as well as recognize that he may assert a right to the products of his office, which would be to compare him to a monarch. This the court cannot do.”
Nixon fought the records fight until his death. But Congress learned its lesson and, in 1978, passed the Presidential Records Act, which officially declared that “all books, correspondence, memoranda, documents, papers … audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form” produced by the president and his staff would become the official property of the federal government, to be preserved by the National Archives and Records Administration.” The records act was updated in 2014 to account for the digital age, and to prevent White House employees from using nongovernment email accounts for official business. (In a sign of the changing times, Trump is being sued over his deleted tweets.)
White House staffers therefore live under the constant gaze of the records act. As one of President Barack Obama’s speechwriters, I sat through more than one briefing detailing what constituted a record. (Notes outlining a speech with my colleagues? Yes. A grocery list on a Post-it stuck to my desk? No.) The lawyers in the Obama White House repeatedly reminded us not to use personal email accounts for work. With an eye to history, they encouraged us to stay professional in our official emails — though I’m surely not the only one whose occasional colorful language will make my mother blush.
It’s one thing for Trump aides to do the nation’s business over Gmail. They may not have technically violated the law if they forwarded those emails to their work accounts. But the revelation that Jared and Ivanka set up a private email server after the election is, given the Trump campaign’s obsession with Hillary Clinton’s private email server, a bit too on the nose.
Perhaps Jared and Ivanka believe they have no choice but to participate in the dismantling of our democracy by working in the administration, and that this blip in their lives will be forgiven or, preferably, forgotten. But for all the misplaced hopes that they would be the reasonable counterweight to their unstable father, they have, time and again, aided and abetted his behavior. Wary of their eventual return to New York high society, perhaps they set up that private email server to obscure from the public eye, and the historical record, the details of their devil’s bargain.
This isn’t new. Too many public officials prefer to obscure their misdeeds and gild their accomplishments, thus tilting the light to give their records a more favorable glow. But with this White House, it seems that a more sinister game is afoot.
In Trump’s distorted understanding of history, those he has deemed “winners” have the power to erase the “losers.” But here, at last, the Presidential Records Act might have something to say. Its purpose, born out of the wreckage of Watergate, was to protect us not only from official misconduct, but from ourselves. It was meant to warn presidents that they may not brush their foibles, or crimes, under the Oval Office rug. It was to preserve, indefinitely, that which we all might wish to forget.
Trump’s records, like his mistakes, belong to us all. And in the end, the one loser he won’t be able to erase from history is himself.