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.
“The White House’s strategy seems to be that you can’t make a record public if it doesn’t exist in the first place,” said Jordan Libowitz, communications director at Citizens for Responsibility and Ethics in Washington. “And that’s a scary way to govern.”
Asked about their compliance with records laws, a White House official said, “We preserve everything we have to preserve.” Pressed on whether anything had been deleted from the National Security Council’s codeword classified system — where some transcripts of Trump’s calls with foreign leaders have been hidden — the official replied: “I’m not going to talk about any of that. But we comply with everything. Like, we’re really actually not criminals.”
Several pro-transparency groups are not convinced the law is being followed. In a letter to the National Archives and Records Administration last month, a dozen such organizations including CREW, the Project On Government Oversight, and the Government Accountability Project urged NARA to detail the steps it’s been taking to ensure that the Trump White House “is taking all necessary steps to preserve a complete and accurate historical record of the current administration.” NARA did not reply to the letter, and did not return a request for comment from POLITICO.
Libowitz pointed to Trump’s meetings with Putin, which were often done either without a notetaker or an American translator present. Kushner’s meetings with the Saudis and other foreign government officials, moreover, often excluded senior State Department officials, according to former Secretary of State Rex Tillerson. Additionally, White House cybersecurity operations were folded last year into an office not covered by the Presidential Records Act, according to an October 2019 memo written by Dimitrios Vastakis, who was the branch chief of the White House computer network defense.
“Considering the level of network access and privileged capabilities that cybersecurity staff had,” Vastakis wrote, “it is highly concerning that the entire cybersecurity apparatus is being handed over to non-PRA entities.”
Trump is also notoriously hostile to note-takers. Former White House counsel Don McGahn told special counsel Robert Mueller in an interview that Trump once asked him: “Why do you take notes? Lawyers don’t take notes.” Trump also confiscated notes taken by an interpreter during one of his first meetings with Putin in 2017. And Trump’s daughter and senior adviser Ivanka Trump reportedly sent hundreds of emails to White House aides and Cabinet officials using a personal account.
Among the most compelling presidential records of Trump’s tenure are the letters he has written to North Korean leader Kim Jong Un, which have never been made public. But it’s unclear whether copies of the letters were made and then preserved by the White House. When asked about the letters, the White House official said he did not know but added that generally, leader-to-leader correspondences are saved.
“Like many other laws, the Presidential Records Act and the Federal Records Act presume a degree of good faith on the part of public officials,” said Steven Aftergood, who runs the Federation of American Scientists’ Project on Government Secrecy. “The National Archives does not have its own ‘police’ who can swoop in and enforce the preservation of sensitive records. As a practical matter, it is not too difficult for a wayward official to destroy records or to secrete them out of official custody.”
A former Obama NSC official put it succinctly: “I know that there are pretty strict rules in place, but of course who knows if this White House has or will follow them.”
There are some automatic safeguards in place: “For example, unless the system has been disabled, almost every email and NSC document is automatically saved as a record,” the former NSC official said. “The default presumption is that it should be preserved; in fact, you had to make the case why it shouldn’t be preserved. Also, many agencies keep records of NSC papers sent out for Deputies/Principals meetings, so I think that destroying all the copies of something would be really, really hard.”
One lingering question is whether President-elect Joe Biden, as he attempts to repair the United States’ relationships with allies Trump has alienated, will be able to review transcripts of Trump’s past calls with foreign leaders.
After 2017, when verbatim transcripts of Trump’s conversations with the leaders of Australia and Mexico were leaked to the press, the White House began placing the transcripts into the NSC’s codeword system — a server designed to protect highly sensitive compartmented intelligence matters that is managed directly by the NSC’s Directorate for Intelligence Programs.
That is where NSC lawyers put Trump’s ill-fated July 2019 call with Ukrainian President Volodymyr Zelensky, which ultimately got Trump impeached.
Experts said it was likely that those kinds of documents, if they weren’t deleted from the system, would be among the presidential records sent to NARA for preservation and not readily available to the Biden White House. Even if records have been preserved properly, or if officials at other agencies took notes or made memos of particular correspondences, there are still limits on what Biden will be able to access, said one lawyer who served in the Obama White House counsel’s office.
“Under the Presidential Records Act, the current administration does not have carte blanche access to the records of prior administrations,” he said, pointing to the relevant statute that governs a president’s access to his predecessor’s records.
“It’s not just an open book,” the lawyer added. “So it’s not like a Biden White House would just be able to peruse the Trump library. Normally, an incumbent White House would have to make a request to NARA to locate a particular record, and NARA would then need to consult with a representative of the relevant former president before providing it to the current White House.
But that is rare, and is usually only done when there is some novel issue that presents itself and the current administration is curious about how its predecessor handled it.”
In other words: Trump’s critics shouldn’t necessarily expect a full accounting — at least not anytime soon — of the many mysteries and secrets of the Trump presidency.
“Aside from questions of good faith and compliance, there are also logistical uncertainties arising from the large volume of records that are subject to preservation,” Aftergood said. “Acquiring, preserving, reviewing and ultimately providing public access to presidential records is becoming an increasingly unmanageable task, according to the (Government Accountability Office) and (Congressional Research Service).”
That being said, an incoming Biden National Security Council, for instance, will likely not be facing a blank slate.
“Hard copies of documents are not hard to destroy, and that is hard to stop. But with electronic records, the information ‘lives’ in a lot of places — and the White House IT system is typically not run by political appointees,” said the former Obama White House lawyer, indicating that even things that have been deleted are likely recoverable.
Employees “held over” between administrations have traditionally been allowed to make duplicate copies of some records so that the new White House is not “starting from scratch,” he added. And not all NSC records are presidential records — much of what is in the system originated with the intelligence community and is not considered a presidential record.
“The good news is that many or most officials at the NSC and elsewhere seem to be scrupulous about their legal duties to preserve official records,” Aftergood said. “The bad news is that not all of them are.”
Daniel Lippman contributed to this report.