Oversight Mechanisms Necessary to Rescue Presidential Records

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“We must never again be forced to act at the 11th hour to rescue our history from legislative neglect.”[1]

On November 10, 2020, the House Committee on Oversight and Reform dispatched letters to the White House and over fifty federal agencies, directing them to preserve documents in compliance with federal record-keeping laws during the presidential transition. These letters came in response to concerns raised by legislators and watchdogs that the outgoing administration may fail to preserve, or even actively destroy, relevant documents during this period. The Trump Administration was often criticized for failing to comply with its responsibility to preserve a complete record of its actions in compliance with applicable laws, including the Presidential Records Act (PRA).

The PRA was enacted in 1978 in response to the Watergate scandal to ensure public access to a president’s official papers, establishing that records regarding the performance of a sitting president and vice president’s official duties are the property of the United States. It instituted requirements for the maintenance, access, and preservation of these records during and after a presidency. The PRA’s sponsors characterized it as a “historical preservation bill,” essential to preserving an accurate record of the presidency for the public and scholars to study the decision-making processes of past administrations.

However, the PRA relies on good faith compliance rather than statutory enforcement and oversight mechanisms, leaving this government property vulnerable. Under the PRA, a president is responsible for the management of presidential records while in office. A president determines whether a document is “presidential,” and thus subject to the PRA, or “personal” and therefore exempt. This gives a president broad discretion and allows an administration to circumvent the PRA by categorizing a presidential document as personal.  

There are limited oversight mechanisms available for the maintenance of records while a president is in office. Though the PRA designated a role for the National Archives Records Administration (NARA), it does not have direct oversight authority over Presidential records. NARA’s Archivist, a presidential appointee, is only required to provide advice and assistance upon a president’s request or when a president seeks to officially dispose of records such as public mail and administrative files. However, at the conclusion of an administration’s time in office, the Archivist takes custody of Presidential records, and over time narrows the outgoing president’s right to restrict congressional and public access.

Enforcement mechanisms are similarly limited. The PRA’s drafters did not include an enforcement mechanism and relied on a president’s good faith cooperation. Federal Courts have held that the PRA precludes judicial review of presidential “record-keeping practices and decisions.”[2] The Archivist cannot independently investigate or attempt recovery. While the United States Code lays out a procedure and penalties for the destruction of government records, these mechanisms rely heavily on good faith compliance, whistleblowers, and journalistic efforts.

The Trump Administration was accused of actively preventing the accurate preservation of presidential records in violation of the PRA. The media reported a lack of a detailed record of President Trump’s face-to-face encounters with Russian President Vladimir Putin, while others reported that President Trump habitually tore up documents, and others questioned the deletion of his tweets as potential violations of the amended PRA. Citizens for Responsibility and Ethics in Washington (CREW) took the Trump Administration to court regarding its aides’ use of encrypted messaging applications that destroy the content of messages as they are read. Legislators and watchdogs expressed concern that the Trump Administration would employ similar tactics to avoid future scrutiny of its decision-making.

The PRA intended to shift control of presidential records to the public in order to protect American history. Oversight mechanisms are necessary to hold any future presidential administration accountable to the congressional intent of the PRA’s sponsors. A good start would be to amend the PRA to statutorily define a larger role for NARA in maintaining presidential records. Moreover, Congress could impose regular reporting requirements, mandating NARA to report on the Administration’s preservation of records without divulging the contents of records to maintain the executive’s privacy. The steady erosion of norms has proven that relying on good faith compliance alone is insufficient.

[1] Presidential Records Act of 1978: Hearing on H.R. 10998 and Related Bills Before a Subcomm. of the H. Comm. on Gov’t Operations, 95th Cong. 74 (1978) (statement of Rep. Allen E. Ertel).

[2] Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991).