Trump wants National Archives to keep his papers away from investigators
The National Archives is the memory of the United States, an artifact repository that includes everything from half-forgotten correspondence to paper traces that document the days of the country’s life. The National Archives contain items such as bureaucratic correspondence, patents and captured German documents. It contains Eva Braun’s diary and photographs of child labor conditions at the turn of the 19th century.
Most of the time, the National Archives carry on their work with little attention. But right now, he’s at the center of a political fight over public access to former President Donald Trump’s papers.
This battle is being waged by Trump against President Joe Biden and the House committee investigating the January 6 insurgency. Lawmakers want to see the Trump administration’s files that are kept at the National Archives, Biden has said the archives should provide them – and Trump has sued the committee and the archives to prevent disclosure of the documents to Congress.
What materials should be kept, where they should be kept and, in the case of presidents, who owns and controls them have long been a thorny issue for the nation. Historian John Franklin Jameson pointed out that from 1833 to 1915, the United States had 254 fires in federal buildings – with important public records consumed by the flames. Fire, insects, mold, water and vermin were all lingering threats that devoured the country’s earliest materials.
Jameson, along with others, lobbied for funding for national archives at the turn of the 20th century. The formal organization known today was created by Congress in 1934. From that point on, “all records or records belonging to the government of the United States” were to be “under the responsibility and supervision” of the national archivist.
Currently, the National Archives houses 12 billion sheets of paper, 40 million photographs, 5.3 billion electronic documents and kilometers of videos and films. These documents include the Emancipation Proclamation of 1863, military and immigration records, and even the void check for the purchase of Alaska.
At the center of the current conflict between Trump and the congressional committee is the status of presidential papers: are they public or private?
The archives have long dealt with this question. President George Washington took his papers home with the intention of establishing a library, but that never materialized. In fact, rats have eaten many Washington records.
Washington had established the idea that the president’s papers were his property, since he had written or created them. Many other presidential families who disliked the contents of their relationship presidential records either wiped them out or burned them, leaving only a biased picture of real history.
The situation continued until the presidency of Franklin D. Roosevelt, who was the first to assert that presidential papers should be preserved for future generations. He viewed presidents as stewards, not owners, of their equipment. Wealthy Roosevelt built a private facility and then donated the papers and collections to the National Archives.
Roosevelt’s library made the public aware of these documents, and by the late 1940s the question of what the country should do with the President’s papers came to a head. Roosevelt’s successor Harry Truman was reluctant to make all of his records fully public, but he was also dismayed to find out how many records of his predecessors had been intentionally destroyed.
“Such destruction should never be allowed again,” Truman said in 1949. “The truth behind a president’s actions can only be found in his official papers, and every presidential document is official.”
The Presidential Libraries Act was passed by Congress in 1955. It allowed private construction of spaces to house presidential newspapers, but these libraries would be maintained by the national government. Presidential documents were still considered the private property of their CEO, although most donated them to their libraries.
In 1974, the Presidential Recordings and Materials Preservation Act was enacted to prevent the destruction of President Richard Nixon’s documents following the Watergate scandal. In 1978, the passage of the Presidential Records Act settled the question of the ownership of presidential documents: they were the property of the American public. As soon as a president leaves office, all documents are immediately placed in the custody of the national archivist.
The 1978 legislation stipulated that duplicate or truly irrelevant records may be disposed of, but only after consultation with the US Archivist. In 2014, this law was updated to also include electronic records.
Protect embarrassing information
Much of my academic career as a political scientist has relied on the availability of these documents. My thesis and my first book both deal with the locations of presidential speeches. If presidents can speak anywhere, what can we learn about their priorities from these choices? Public documents made my research possible. Without them, no full accounting of presidential speeches would exist.
The presidential files have sometimes caused controversy. Many presidents have sought to hide potentially embarrassing or controversial information from the public.
During Watergate, investigators searched Nixon for potentially incriminating documents. He asserted that he had absolute executive privilege and that he could refuse any communication to the legislative and judicial branches.
Executive privilege allows current presidents to notify the National Archives to withhold any document, unless they request it directly or by court order.
The Supreme Court strongly disapproved of Nixon’s claim of executive privilege in a unanimous opinion in 1974, stating: “Neither the doctrine of the separation of powers nor the widespread need for confidentiality of high-level communications, without more, can support a absolute presidential power and without reservation privilege of immunity from jurisdiction in all circumstances. Nixon’s records were to be released.
In 2001, President George W. Bush, building on the efforts of President Ronald Reagan, sought to create a formal process for handling claims of executive privilege. Bush’s change was controversial because it allowed sitting and former presidents to protect information almost indefinitely and also allowed a former president to appoint a representative to argue on their behalf even after their death.
Barack Obama revoked Bush’s order the day after his inauguration in 2009.
The 2009 Obama Order guides current policies. Any claim for executive privilege involves consultation with the archivist, the attorney general, and the president’s counsel. Other executive agencies may also be involved if the information concerns them.
The way the policy applies to past presidents is trickier. Those who want executive privilege to prevent disclosure of documents – like Trump does – must defer to the current administration for the final decision. They do not have the capacity, as past presidents, to assert general executive privilege.
For other presidents, such as George W. Bush and Barack Obama, executive privilege has been implemented as a tool to block investigations. Trump’s attempt to use it can be a delaying tactic, which can benefit him in the short term. But it could also cement the limits the Supreme Court has placed on a president’s power to invoke executive privilege. If, in reviewing the Trump case, the court reaffirms the Nixon decision, it would be a reaffirmation that the president’s power to keep documents secret was not absolute.
This article is republished from The Conversation under a Creative Commons license. Read the original article.