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In the coming days and weeks, Americans will likely spend a lot of time discussing and arguing over former President Donald Trump’s indictment. Ideally, these should be fact-based conversations. However, it is much more likely that the opinions of a lot of people will be tainted by misinformation and propaganda.
As a service to our readers, WhoWhatWhy will periodically make available primary sources that will help Americans better understand what is happening.
Yesterday, for example, we published the text of the indictment, which every American should read prior to forming an opinion about what Trump may have done or not done and whether those actions likely constituted a crime.
Today, we want to take a closer look at the Presidential Records Act, recent guidance about it that the National Archives and Records Administration (NARA) published, and the answers to some frequently asked questions that might come up as people discuss the indictment.
The Presidential Records Act (PRA) requires presidents and vice presidents to turn the records they created while in office over to NARA when their term ends.
The law unambiguously states that the US retains “complete ownership, possession, and control of Presidential records.”
In addition, the president is expected to turn these records over right away. There is no provision in the law that allows them to sort through them first. Obviously, presidents take a lot of stuff from the White House when they move out. Therefore, it is possible that they discover presidential records among their things at some point in the future.
When that happens, they are expected to quickly notify NARA and turn those records over.
However, it is important to note that there is a difference between “presidential records” and “personal records.” The former must be turned over, but the president can hold onto the latter.
Personal records are defined as “documentary materials of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” This may include diaries or personal notes.
All documents have to be categorized as either “presidential” or “personal” records. However, it is not up to the president to determine which category they fall under.
Presidential Libraries
But what about presidential libraries? Don’t they hold a lot of presidential records?
Yes, they do. However, what most people don’t realize is that these presidential libraries are donated to NARA. Therefore, the agency maintains physical and legal custody of them — even before the library is built and while the documents are stored in temporary facilities.
In a statement yesterday, NARA said that Trump did not communicate his intent to build a presidential library and then donate it to the agency. Therefore, NARA maintained his records at a facility near Washington, DC.
Chances are that you will hear a lot about former President Barack Obama’s documents and how he retained his presidential records.
However, NARA makes clear that it “took physical and legal custody of the records of his administration in accordance with the Presidential Records Act” at the end of his administration. Once it became clear that Obama would not build a presidential library, NARA moved the 30 million pages of his presidential records from a secure facility in Illinois (where the construction of the library had been anticipated) to other NARA-controlled facilities.
Obama will build a “presidential center” instead but does not want to donate it to NARA. His foundation also agreed to help pay for moving the presidential records (which includes both classified and unclassified documents) from Illinois to the other facilities.
At no point, NARA said, did Obama have “possession or control” over the records.
What about photocopies?
Under the PRA, photocopies of documents “produced only for convenience of reference, when such copies are clearly so identified,” may be excluded from being retained. However, copies of the same may all count as presidential records. It all depends on who they were used and maintained in the White House.
If a president chooses to dispose of such records, it first has to be determined that they “no longer have administrative, historical, informational, or evidentiary value.” That determination has to be made while the president is in office upon consulting with NARA.
Did NARA assist Trump?
The agency said it provided assistance to Trump after he lost the election and before he departed the White House. The help NARA offered was similar to that provided to presidents Obama, George W. Bush, and Bill Clinton.
