US Presidential Papers
They don’t belong to presidents
On 08 August, the Federal Bureau of Investigation (FBI) executed a search warrant at former President Donald Trump’s Mar-a-Lago home in Florida. The search was related to a Justice Department investigation into Trump’s alleged improper handling of White House records while he was in office and after he decamped to Florida. The Justice Department has actively investigated the discovery of boxes containing classified information that were taken to Trump’s Florida residence after he left the White House in January 2021. This raid has taken place because there are laws in the United States, chief among them the Presidential Records Act, which enunciate that presidential papers don’t belong to presidents as all Presidential records are the property of the United States government and are administered by the National Archives.
In 1978, the US Congress passed the law that made the President’s documents that were previously considered the office-holder’s property, into the property of the US government. Enacted following President Richard Nixon’s resignation, the Act established that presidential records must be preserved and they are not the president’s private property.
The law governs records of the president, vice president and certain parts of the Executive Office of the President, such as the National Security Council and Council of Economic Advisers, and lays out the requirements for the maintenance, access and preservation of information during and after a presidency.
Records that must be preserved include documents relating to certain political activities and information relating to the president’s constitutional, statutory or other official or ceremonial duties, including emails, text messages and phone records. But excluded from the Act’s requirements for preservation are a president’s personal records, or documents of a “purely private or nonpublic character.”
During a presidency, the incumbent president has responsibility over the “custody, control and access to presidential records;” however, after a presidency, that responsibility moves to the archivist of the US, who is required under law to make the former president’s documents available to the public “as rapidly and as completely as possible.” At the end of an administration, the documents must be turned over to the National Archives.
Since presidential records are US government’s property, a former president has to receive permission from the archivist to display presidential records, such as in a presidential library, which are operated and maintained by the National Archives.
Nonetheless, the Presidential Records Act lacks an enforcement mechanism, and a former president has never been punished for violating the law.
There are, however, penalties under different statutes for destroying White House records. Under the first law, anyone found to have “willfully and unlawfully” concealed, removed, mutilated, obliterated or destroyed any record faces a fine and imprisonment for up to three years.
A person convicted of this offense can be disqualified from holding future federal office. But in 2015, as Hillary Clinton came under criticism for using a private email server while serving as secretary of state, legal scholars argued the Constitution lays out eligibility criteria for serving as president. Clinton, who was the 2016 Democratic presidential nominee and ran against Trump, was not charged with any crimes related to her handling of federal records.
A second law states anyone who “willfully injures or commits any depredation against any property” of the US faces a fine or up to one year in prison if convicted.