Will Trump Burn the
Evidence?
How the President could endanger the official records of one of
the most consequential periods in American history.
By Jill Lepore
November 16, 2020
Trump has made a habit of destroying documents and suppressing disclosure.
Donald Trump is not much of a note-taker, and he
does not like his staff to take notes. He has a habit of tearing up documents
at the close of meetings. (Records analysts, armed with Scotch Tape, have tried
to put the pieces back together.) No real record exists for five meetings Trump
had with Vladimir Putin during the first two years of his Presidency. Members
of his staff have routinely used apps that automatically erase text messages,
and Trump often deletes his own tweets, notwithstanding a warning from the
National Archives and Records Administration that doing so contravenes the
Presidential Records Act.
Trump cannot abide
documentation for fear of disclosure, and cannot abide disclosure for fear of
disparagement. For decades, in private life, he required people who worked with
him, and with the Trump Organization, to sign nondisclosure agreements,
pledging never to say a bad word about him, his family, or his businesses. He
also extracted nondisclosure agreements from women with whom he had or is alleged
to have had sex, including both of his ex-wives. In 2015 and 2016, he required
these contracts from people involved in his campaign, including a distributor
of his “Make America Great Again” hats. (Hillary
Clinton’s 2016 campaign required N.D.A.s from some employees, too.
In 2020, Joe Biden called on Michael Bloomberg to release his former employees
from such agreements.) In 2017, Trump, unable to distinguish between private
life and public service, carried his practice of requiring nondisclosure
agreements into the Presidency, demanding that senior White House staff sign
N.D.A.s. According to the Washington Post, at least one of them, in
draft form, included this language: “I understand that the United States
Government or, upon completion of the term(s) of Mr. Donald J. Trump,
an authorized representative of Mr. Trump, may seek any remedy available to
enforce this Agreement including, but not limited to, application for a court
order prohibiting disclosure of information in breach of this Agreement.” Aides
warned him that, for White House employees, such agreements are likely not
legally enforceable. The White House counsel, Don McGahn, refused to distribute
them; eventually, he relented, and the chief of staff, Reince Priebus,
pressured employees to sign them.
Those N.D.A.s haven’t
stopped a small village’s worth of ex-Trump Cabinet members and staffers from
blabbing about him, much to the President’s dismay. “When people are chosen by
a man to go into government at high levels and then they leave government and
they write a book about a man and say a lot of things that were really guarded
and personal, I don’t like that,” he told the
Washington Post. In 2019, he tweeted, “I am currently suing various
people for violating their confidentiality agreements.” Last year, a former
campaign worker filed a class-action lawsuit that, if successful, would render
void all campaign N.D.A.s. Trump has only stepped up the fight. Earlier suits
were filed by Trump personally, or by his campaign, but, last month, the Department
of Justice filed suit against Stephanie Winston Wolkoff for publishing a book,
“Melania and Me,” about her
time volunteering for the First Lady, arguing, astonishingly, that Wolkoff’s
N.D.A. is “a contract with the United States and therefore enforceable by the
United States.” (Unlike the suit against Trump’s former national-security
adviser John Bolton, relating to the publication of his book, “The Room Where It Happened,”
there is no claim that anything in Wolkoff’s book is or was ever classified.)
And Trump hasn’t stopped: last year, he required doctors and staff who treated
him at the Walter Reed National Military Medical Center to sign N.D.A.s.
Hardly a day passes that
Trump does not attempt to suppress evidence, as if all the world were in
violation of an N.D.A. never to speak ill of him. He has sought to discredit
publications and broadcasts that question him, investigations that expose him,
crowds that protest him, polls that fail to favor him, and, down to the bitter
end, ballots cast against him. None of this bodes well for the historical
record and for the scheduled transfer of materials from the White House to the
National Archives, on January 20, 2021. That morning, even as
President-elect Joseph R. Biden, Jr., is ascending the
steps of the Capitol, staffers from the archives will presumably be in the
White House, unlocking doors, opening desks, packing boxes, and removing hard
drives. What might be missing, that day, from file drawers and computer servers
at 1600 Pennsylvania Avenue is difficult to say. But records that were never
kept, were later destroyed, or are being destroyed right now chronicle the
day-to-day doings of one of the most consequential Presidencies in American
history and might well include evidence of crimes, violations of the
Constitution, and human-rights abuses. It took a very long time to establish
rules governing the fate of Presidential records. Trump does not mind breaking
rules and, in the course of a long life, has regularly done so with impunity.
The Presidential Records Act isn’t easily enforceable. The Trump Presidency
nearly destroyed the United States. Will what went on in the darker corners of
his White House ever be known?
“The truth behind a President’s actions can be
found only in his official papers,” Harry S. Truman said in 1949,
“and every Presidential paper is official.” Truman became an advocate of archival
preservation after learning about the fate of his predecessors’ papers. When
George Washington left office, in 1797, he brought his papers back to Mount
Vernon, but, loaned out, they were “extensively mutilated by rats and otherwise
injured by damp”; eventually, they were carried by the historian Jared Sparks
to Massachusetts, where Sparks threw out anything he didn’t like, scrapped what
he found worthless, gave away much of the rest, and, beginning in 1837,
published what he liked best as “The Writings of George Washington.”
For many years, there
was no alternative for a departing President but to take his papers home with
him; there wasn’t really any place to put them. Thomas Jefferson, “having no
confidence that the office of the private secretary of the President of the
U.S. will ever be a regular and safe deposit for public papers,” took pains to
deposit many of his papers with his Cabinet departments. In 1810, Congress
established a Committee on Ancient Public Records and Archives of the United
States. It reported that the records of the federal government were “in a state
of great disorder and exposure; and in a situation neither safe nor convenient
nor honorable to the nation.” Congress took little action. In 1814, the
congressional library burned to the ground.
Most of the papers of
William Henry Harrison, the log-cabin candidate, succumbed to flames when that
log cabin burned down. Those of both John Tyler and Zachary Taylor were largely
destroyed during the Civil War. In 1853, when Millard Fillmore left the White
House, he had his papers shipped to a mansion in Buffalo. He died in 1874,
having made no provisions for the papers. When Fillmore’s only son died, in
1889, his will ordered his executors to “burn or otherwise effectively destroy
all correspondence or letters to or from my father.” Only by the merest miracle
were forty-four volumes of Fillmore’s Presidential-letter books found in an
attic of a house, in 1908, and only because it was on the verge of being
demolished.
Chester Arthur’s son had
most of his father’s Presidential papers burned in three garbage cans. “The
only place I ever found in my life to put a paper so as to find it again was
either a side coat-pocket or the hands of a clerk,” Ulysses S. Grant once said. For
years after Grant’s Administration, scholars were able to locate hardly any of
his Presidential papers. In 1888, Congress urged the Library of Congress to
collect the papers of the Presidents. In the eighteen-nineties, the library
established a Manuscript Division, and a historian who later became its chief
began lobbying for the establishment of a National Archives; meanwhile, the
American Historical Association formed a Public Archives Commission. In 1910,
after the commission reported that “many of the records of the Government have
in the past been lost or destroyed,” the A.H.A. petitioned Congress to build a
depository. Congress authorized the funds, but no plan was undertaken until
after the close of the First World War.
Grover Cleveland, during
his two terms, preferred to communicate in person, leaving no paper trail. He
insisted that the records of his Presidency were his personal property and, in
1886, refused to turn over papers that the Senate had demanded: “if I saw fit
to destroy them no one could complain.” (That is what, during the Presidency of
Dwight D. Eisenhower, came to be called “executive privilege.”)
Cleveland’s contention became a convention: the President’s papers belong to
the President, who can deny requests for disclosure not only from the public
but from other branches of the federal government. William McKinley was
assassinated in 1901; his secretary held on to his papers until 1935, when he
donated them to the Library of Congress, where they remained under his, and
later his son’s, tight control until 1954. In 1924, a raft of papers from the
Taft, Wilson, and Harding Administrations were found in the attic of the White
House. Warren Harding’s Presidency was riven by scandal; after his death, his
wife told the chief of the Manuscript Division of the Library of Congress that
she had destroyed all his papers, although she had burned only those she
thought “would harm his memory.” Most of the rest she left to the Harding
Memorial Association. The Library of Congress acquired a cache of those and
other papers in 1972, on the condition that they be closed to the public until
2014. (They turned out to include a thousand pages of love letters between
Harding and his mistress. “Won’t you please destroy?” he wrote her in one
letter. She did not destroy.) Calvin Coolidge instructed his private secretary
to destroy all his personal files; on Coolidge’s death, the secretary said,
“There would have been nothing preserved if I had not taken some things out on
my own responsibility.”
In 1933, Herbert Hoover laid the cornerstone of the
National Archives Building. “This temple of our history will appropriately be
one of the most beautiful buildings in America, an expression of the American
soul,” he said. A granite, marble, and limestone monument with two forty-foot
bronze doors behind seventy-two Corinthian columns, it was built at the height
of the Depression, a massive public-works project. In 1941, with Hitler in
power in Germany and Mussolini in Italy, Franklin Delano Roosevelt spoke at its
dedication:
To bring together the records of the past and to
house them in buildings where they will be preserved for the use of men and
women living in the future, a Nation must believe in three things. It must
believe in the past. It must believe in the future. It must, above all, believe
in the capacity of its own people so to learn from the past that they can gain
in judgements in creating their own future.
Americans used to
believe in those three things. Do they still?
Archives are ancient, but national archives, the
official repositories of the records of a nation-state, date to the French
Revolution: France established its Archives Nationales in 1790. Britain
established what became a pillar of its National Archives in 1838. Newly
independent nations have established national archives as part of the project
of declaring independence: Argentina established what would become its national
archive in 1821, Mexico in 1823, Brazil in 1838.
National archives uphold
a particular vision of a nation and of its power, and, during transitions of
power in nations that are not democratic, archives are not infrequently
attacked. Most attacks involve the destruction of the evidence of atrocity.
Brazil abolished slavery in 1888. Two years later, after a military coup, a
minister of the new republic ordered the destruction of every document in any
archive in the country which related to its history of slavery.
Richard Ovenden’s new
book, “Burning the Books: A History of the
Deliberate Destruction of Knowledge,” is a litany of this sort of
tragedy. “The preservation of information continues to be a key tool in the
defense of open societies,” Ovenden, who runs the Bodleian Libraries, at
Oxford, writes. unesco’s
report “Lost Memory” is an
inventory of inventories: a list of libraries and archives that were destroyed
in the twentieth century, including the widespread devastations of the First
and Second World Wars, the burning of some of the collections in the National
Library in Phnom Penh by the Khmer Rouge, and the destruction of the National
and University Library in Sarajevo, by the Bosnian Serb Army, in 1992.
Libraries house books: copies. Archives store documents: originals. Archives
cannot be replaced. As unesco’s
report puts it, “The loss of archives is as serious as the loss of memory in a
human being.”
All is not always lost.
Officials of the British Empire set fire to entire archives as they left
the colonies. In 1961, in Uganda, the objectives of what came to be known as
Operation Legacy included the elimination of all documents that might
“embarrass” Her Majesty’s government. Decades later, some three hundred boxes
from Kenya and nearly nine thousand files from more than thirty other former
British colonies, including Malta, Malaya, and the Bahamas, were discovered in
a top-secret government fortress north of London. In 1992, guards from the
former Soviet republic of Georgia burned to the ground the Central Archive of
Abkhazia. But many of its documents had been microfilmed or photocopied, and
these records were stored in other buildings. In 2005, Guatemalan officials
conducting a safety inspection of a munitions depot came across the long-hidden
records of the brutal force that was the National Police—an estimated eighty
million pages, described by my Harvard colleague Kirsten Weld as “papers
spilling forth from rusted file cabinets, heaped on dirt floors, in trash bags
and grain sacks, shoved into every conceivable nook and cranny, moldy and
rotting.” People have spent more than a decade preserving and organizing them.
Governments that commit
atrocities against their own citizens regularly destroy their own archives.
After the end of apartheid, South Africa’s new government organized a Truth and
Reconciliation Commission because, as its report stated, “the former government
deliberately and systematically destroyed a huge body of state records and
documentation in an attempt to remove incriminating evidence and thereby
sanitise the history of oppressive rule.” Unfortunately, the records of the
commission have fared little better: the archive was restricted and shipped to
the National Archives in Pretoria, where it remains to this day, largely
uncatalogued and unprocessed; for ordinary South Africans, it’s almost entirely
unusable. In the aftermath of the Trump Administration, the most elusive
records won’t be those in the White House. If they exist, they’ll be far away,
in and around detention centers, and will involve the least powerful: the
families separated at the border, whose suffering federal officials inflicted,
and proved so brutally indifferent to that they have lost track of what
children belong to which parents, and how to find them.
In 1950, Truman signed the Federal Records Act,
which required federal agencies to preserve their records. It did not require
Presidents to save their papers, which remained, as ever, their personal
property. In 1955, Congress passed the Presidential Libraries Act, encouraging
Presidents to deposit their papers in privately erected institutions—something
that every President has done since F.D.R., who was also the first President to
install a tape recorder in the White House, a method of record-keeping that was
used by every President down to Richard M. Nixon.
The Presidential
libraries are overseen by the National Archives and Records Administration.
They were intended to be research centers, and include museums; and they serve,
too, as monuments. The Barack Obama Presidential Library is the first
Presidential library whose collections will be entirely digital—they will be
available to anyone, anywhere, anytime. But the Presidential library, which
started with F.D.R., may well end with Obama.
Donald Trump, if he
decides that he wants a Presidential library, is far more likely to build a
Presidential museum, or even a theme park, and would most likely build it in
Florida. “I have a lot of locations, actually,” Trump said on NBC last year.
Last month, an anonymous group from New York published its own plans for a
Trump library at djtrumplibrary.com. Its exhibits include a Criminal Records
Room and a Covid Memorial, just off the Alt-Right Auditorium. But, long before
Trump gets around to designing an actual Trump Library, he is likely to run
afoul of a struggle over Presidential records that began with Watergate and
Nixon’s tapes.
In 1974, a special
prosecutor subpoenaed the Nixon Administration for the Watergate tapes. The
White House refused to comply. The case went to the Supreme Court. In United
States v. Nixon, the Court devised a balancing test that measured the argument
for executive privilege against the judiciary’s interest in criminal justice,
and ordered Nixon to turn over the tapes on July 24, 1974. Fifteen days later,
Nixon resigned, and proceeded to sign an agreement with the General Services
Administration that would have allowed him to destroy the records of his
Presidency. Congress then passed the Presidential Recordings and Materials
Preservation Act, which prohibited Nixon from destroying the tapes. Nixon sued
but, in 1977, in Nixon v. Administrator of General Services, he lost. Still,
his legal battles continued into the nineteen-nineties.
To avoid all this
happening all over again with another President, Congress in 1978 passed the
Presidential Records Act. It puts Presidential records in the public domain;
the public can see those records five years after the President leaves office,
though a President can ask to extend those five years to twelve for material
deemed sensitive. No longer are Presidential papers the private property of the
President. The act also directs every White House to “take all such steps as
may be necessary to assure that the activities, deliberations, decisions, and
policies that reflect the performance of the President’s constitutional,
statutory, or other official or ceremonial duties are adequately documented and
that such records are preserved and maintained as Presidential records.” What
counts as “such records” has been much contested. The archivist of the United
States is appointed by the President; the archivist cannot tell the President
what to do or what to save but can only provide advice, which the President can
simply ignore.
The Presidential Records
Act was scheduled to go into effect on January 20, 1981, with the Inauguration
of the next President, who turned out to be Ronald Reagan. Reagan’s Attorney
General, Edwin Meese III, decided to help Nixon, who was still fighting in
court for control of the archives of his Presidency. The Reagan Administration
aided the efforts of Nixon’s lawyers, who argued that the archivist of the United
States has no discretion in evaluating claims of executive privilege but must,
instead, defer to them without review. In 1988, in Public Citizen v. Burke, the
D.C. Circuit Court ruled against Nixon and the Administration. The next
year, Reagan left office, and his staff packed up his papers.
Reagan’s was the first Administration to use
e-mail. Preparing to leave the White House, people in the Administration tried
to erase the computer tapes that stored its electronic mail. The correspondence
in question included records of the Iran-Contra arms deal, which was, at the
time, under criminal investigation. On the last day of Reagan’s Presidency, the
journalist Scott Armstrong (formerly of the Washington Post), along
with the American Historical Association, the National Security Archive (a
nonprofit that Armstrong founded, in 1985), and other organizations, sued
Reagan, George H. W. Bush, the National Security Council, and
the archivist of the United States. That lawsuit remained unresolved four years
later, in 1992, when C. Boyden Gray, a lawyer for the departing President,
George H. W. Bush, advised him that destroying things like
telephone logs was not a violation of the Presidential Records Act, because, he
asserted, the act does not cover “ ‘non-record’ materials like scratch
pads, unimportant notes to one’s secretary, phone and visitor logs or informal
notes (of meetings, etc.) used only by the staff member.”
Non-record records that
the Administration sought to destroy also included the White House’s digital
archive of e-mail, a body of evidence that was the subject of yet another
congressional investigation, this time into whether Bush had ordered the State
Department to search Bill Clinton’s passport records as part of an effort to
discredit him during the campaign. A federal judge placed a ten-day restraining
order on the Bush White House, banning the destruction of any computer records.
“History is full of instances where the outgoing President has decided to
erase, burn or destroy all or substantially all Presidential or Executive
Office of the President records before the end of his term,” the judge
declared. But on January 19, 1993, the night before Clinton’s Inauguration, the
Bush Administration deleted those computer files, in defiance of the court order.
Near midnight, the office of the archivist of the United States,
Don W. Wilson, a Reagan appointee, made an agreement with Bush,
granting him control over all “Presidential information and all derivative
information in whatever form” after leaving office.
Critics of the
Presidential Records Act say that, along with the creation of independent
counsels, it contributes to endless investigations and the politics of scandal.
Lloyd Cutler served as counsel to both Jimmy Carter and Bill Clinton. “Now
every congressional committee asks for every scrap of paper under the sun,”
Cutler said in an oral history conducted in 1999. “Independent counsels ask for
every piece of paper under the sun. In this Administration, I would guess ten,
fifteen lawyers are kept busy all the time digging up documents by the
thousands, literally by the thousands. . . . It stops people
from writing memos. Many people came to me and said, ‘Can they really look in
my diary?’ I said, ‘I hope you don’t keep a diary. Sure, they can look at your
diary.’ ” And so they stopped keeping diaries. And some of them started
conducting government business using private e-mail accounts.
In some matters of
secrecy, the Clinton Administration took its cue from the outgoing Bush
Administration but promised to archive its e-mails properly. (A system was
eventually set up so that if you tried to delete an e-mail you’d get a message
that doing so was in violation of the Presidential Records Act.) Clinton
claimed executive privilege again and again, to protect himself from
congressional investigation; his staff argued that congressional Republicans
were on a mission to destroy him, and so was Kenneth Starr, the independent
counsel of the Whitewater investigation. Evading the Presidential Records Act
became just another move in the partisan chess game.
Post-Watergate
Presidential papers are seemingly more formal, more bureaucratic, less
intimate, and less candid, as if the less control Presidents have over their
archives, the less interesting those archives have become. “This is horseshit”
is the sort of thing L.B.J. might scrawl on a memo (or any of us in a
self-destructing text). You don’t see that as much anymore. Don Wilson, after
leaving office, argued that the Presidential Records Act compromised the records
of the Presidency. Records whose preservation was intended to aid historical
research had become, instead, ammunition for prosecutors, creating “a climate
for avoiding documentation or perhaps even destroying it.” Wilson told me,
“Vice-President Cheney once said, when I asked him for his papers as chief of
staff, ‘I didn’t keep any.’ ” And, as Columbia Law School’s David Pozen
has argued, transparency does not always advance good government: it can
interfere with the deliberative process, make deal-making impossible, and
promote a culture of suspicion and mistrust.
Early in
George W. Bush’s first term, his Administration disabled the
automated e-mail archive system. Nearly all senior officials in the Bush White
House used a private e-mail server run by the Republican National Committee.
Then, between 2003 and 2009, they claimed to have lost, and later found, some
twenty-two million e-mail messages. Nor has this practice been limited to the
White House. Hillary Clinton’s use of a personal e-mail account on a private
e-mail server to conduct official correspondence while serving as Obama’s
Secretary of State violated the Federal Records Act, which allows the use of a
personal account only so long as all e-mails are archived with the relevant
agency or department; Clinton’s were not. “The American people are sick and
tired of hearing about your damn e-mails,” Bernie Sanders said to Clinton in
2015, during a primary debate, all Larry David-like. But, closer to Election
Day, renewed attention on Clinton’s e-mails diminished her chances of defeating
Trump.
The evidentiary shell
game has been carried over from one Administration to the next. Reagan tried to
protect Nixon’s executive privilege; Bush tried to protect Reagan’s. That so
many staff members who served in earlier Republican Administrations serve again
under later Presidents has made their commitment to defying the Presidential
Records Act even more ardent. This was something keenly felt by
George W. Bush, who, after all, was also concerned about protecting his
father’s legacy (which is yet another argument against political dynasties).
In 2001, when the
twelve-year restriction on the Reagan papers expired, they did not all become
available to the public, because George W. Bush signed an executive
order that had been drafted by his young associate counsel,
Brett M. Kavanaugh. During the Clinton Presidency, Kavanaugh had
served as an aide to Ken Starr. In that capacity, he had argued against
executive privilege. But, in the second Bush Presidency, Kavanaugh favored
executive privilege. Executive Order No. 13,233, Further Implementation of the
Presidential Records Act, tried to extend executive privilege, in effect,
indefinitely. Specifically, it granted to the current President the right to
review the declassification of the records of his predecessors before their
release to the public: “Concurrent with or after the former President’s review
of the records, the incumbent President or his designee may also review the
records in question, or may utilize whatever other procedures the incumbent
President deems appropriate to decide whether to concur in the former
President’s decision to request withholding of or authorize access to the
records.” This, of course, allowed Bush to withhold from public view anything
in his father’s papers that he did not wish to see enter the public record,
including documents drafted by members of his own Administration who had served
in his father’s Administration or in the Reagan Administration. As the
archivist Bruce Montgomery observed, “In brief, the Bush order expanded
executive privilege beyond the incumbent president to past presidents, their
heirs, and even to vice presidents, seemingly in perpetuity.”
Historians got angry. At a forum co-sponsored by
the pen American Center,
Lyndon Johnson’s biographer Robert Caro pointed out, “If you want to challenge
the executive order, the historian must ask for specific, detailed things. The
Johnson Library has thirty-four million pieces of paper. Unless you’ve been
through it, you can’t possibly know what’s in there.” This raises another
delicate point. An archive that holds everything is useless unless you can find
your way around it, and that requires money. The entire budget of the National
Archives is about the cost of a single C-17 military-transport plane. In 2018,
when Trump nominated Kavanaugh to the Supreme Court, the National Archives,
with its limited resources, processed twenty thousand pages of documents
relating to his service in the independent counsel’s office during the Clinton
Administration but was unable to get through all the requested documents from
his work in the Bush Administration in time for the Senate to review them. In
any case, Kavanaugh’s collection was vast: his records included more than six
hundred thousand e-mails alone.
Barack Obama revoked
Executive Order No. 13,233 on his second day in office. His Administration
settled a suit filed by the National Security Archive against the Bush
Administration, for its failure to release visitor logs. Obama’s White House
published the logs of more than six million visitors, including the head of the
National Security Archive. (Shaking his hand, Obama said, “You know, there’s
gonna be a record of this.”) His Administration did not require corporate-style
N.D.A.s. Nor had any President until Trump. I asked Don Wilson what he expected
of the Trump papers, and he said, “What kind of record will we have other than
what he dictates will be a record?”
The archivist of the United States, David
Ferriero, has copies of three letters that he wrote, as a kid in the
nineteen-sixties, framed on his office wall. One is to Eisenhower, asking for a
photograph. The second is to John F. Kennedy, inquiring about the Peace
Corps. The third is to Johnson: “Mr. President, I wish to congratulate you and
our country for passing John F. Kennedy’s Civil Rights Bill.” The
originals of those letters ended up in the National Archives, preserved, long
before the passage of the Presidential Records Act.
Ferriero, an Obama
appointee, says that the P.R.A. operates, essentially, as an honor system. He
wishes that it had teeth. Instead, it’s all gums. Kel McClanahan, a
national-security lawyer, told me, “If the President wanted to, he could pull
together all of the pieces of paper that he has in his office and have a
bonfire with them. He doesn’t view the archivist as an impediment to anything,
because the archivist is not an impediment to anything.”
After Trump’s
Inauguration, in January, 2017, the National Archives and Records
Administration conferred with the White House to establish rules for
record-keeping, and, given the novelty of Trump’s favored form of
communication, advised Trump to save all his tweets, including deleted ones. Trump
hasn’t stopped deleting his tweets; instead, the White House set up a system to
capture them, before they vanish. On February 22nd, the White House counsel Don
McGahn sent a memo on the subject of Presidential Records Act Obligations to
everyone working in the Executive Office of the President, with detailed
instructions about how to save and synch e-mail. McGahn’s memo also included
instructions about texting apps:
You should not use instant messaging systems,
social networks, or other internet-based means of electronic communication to
conduct official business without the approval of the Office of the White House
Counsel. If you ever generate or receive Presidential records on such
platforms, you must preserve them by sending them to your EOP email account via
a screenshot or other means. After preserving the communications, you must
delete them from the non-EOP platform.
It appears that plenty
of people in the White House ignored McGahn’s memo. Ivanka Trump used a
personal e-mail for official communications. Jared Kushner used WhatsApp to
communicate with the Saudi crown prince. The press secretary Sean
Spicer held a meeting to warn staff not to use encrypted texting apps, though
his chief concern appears to have been that White House personnel were using
these apps to leak information to the press.
Ethically, if not
legally, what records must be preserved by the White House and deposited with
the National Archives at the close of Trump’s Presidency is subject to more
dictates than those of the Presidential Records Act. In 2016, the International
Council on Archives, founded with support from unesco in 1948, published a working document called “Basic Principles on the Role of
Archivists and Records Managers in Support of Human Rights.”
Essentially an archivists’ elaboration of the principles of the 1948 Universal
Declaration of Human Rights, it urges governments to preserve archives that
contain evidence of violation of human rights.
The rules about
record-keeping, like so much about American government, weren’t set up with
someone like Trump in mind. It’s not impossible that his White House will
destroy records not so much to cover its own tracks but to sabotage the Biden
Administration. This would be a crime, of course, but Trump could issue blanket
pardons. Yet, as with any Administration, there’s a limit to what can be lost.
Probably not much is on paper, and it’s harder to destroy electronic records
than most people think. Chances are, a lot of documents that people in the
White House might wish did not exist can’t really be purged, because they’ve
already been duplicated. Some will have been copied by other offices, as a
matter of routine. And some will have been deliberately captured. “I can
imagine that at State, Treasury, D.O.D., the career people have been quietly
copying important stuff all the way along, precisely with this in mind,” the
historian Fredrik Logevall, the author of a new biography of Kennedy, told me.
Other attempts to
preserve the record appear to have been less successful. The White House’s
P.R.A. guidelines, as worked out with the National Archives, forbade the use of
smartphone apps that can automatically erase or encrypt text messages. It’s
possible that the White House has complied with those guidelines, but there’s
nothing that the National Archives could have done, or could do now, if it
hasn’t. Watchdog groups sued, concerned about the use of such apps, but the
Justice Department successfully argued that “courts cannot review the
president’s compliance with the Presidential Records Act.” In 2019, the National
Security Archive joined with two other organizations in a suit against Trump
that led to a court’s ordering the Administration to preserve not only “all
records reflecting Defendants’ meetings, phone calls, and other communications
with foreign leaders” but records having to do with the Administration’s
record-keeping practices. Earlier this year, the judge in that case dismissed
the lawsuit: “The Court is bound by Circuit precedent to find that it lacks
authority to oversee the President’s day-to-day compliance with the statutory
provisions involved in this case.”
“I’m very worried,”
Austin Evers, the executive director of the watchdog group American Oversight,
told me. “There are a lot of senior officials in the Trump Administration who
have been relying on impunity to sleep well at night, and I think it will dawn
on them over the coming days and weeks that the records they leave behind will
be in the hands of people they do not trust, including career public servants.”
But, if Jared Kushner set a bonfire in the Rose Garden, Evers thinks that there
would be repercussions. “The P.R.A. gets a bad rap,” he says. It’s difficult to
enforce, but it’s not unenforceable. And if evidence of document destruction
comes out, Evers says, American Oversight is poised to file suit: “We have
litigation in the can.”
A week after Election Day, the House Oversight
Committee sent strenuously worded letters to the White House and to dozens of
federal agencies, warning them not to destroy or remove records during the
transition. The letters were signed by the chairs of twenty other House
committees. “That letter is the lifeguard whistle from the tower,” Tom Blanton,
who runs the National Security Archive, told me.“ ‘Watch out, there are
records drowning out there!’ ”
Trudy Peterson, who
served as the acting archivist of the United States under Clinton, helped
oversee the packing up of the Ford White House on the day of Carter’s
Inauguration. Crowds were lining the streets, she recalled, while, inside,
“people were packing up the President’s morning briefing. You have literally
the hottest of the hot foreign-policy materials in your hands.” A convoy of
trucks, under military escort, drove from Washington to Michigan. “In the
mountains, we lost track of one of the trucks,” she told me. “For a matter of
moments. But it stopped your heart.” Phillip Brady, who served under both
Reagan and George H. W. Bush, once recalled what it was like to
pack up. People from the White House counsel’s office, he said, “would again
remind everyone that these are Presidential documents; you’re not permitted to
walk out of the White House with them; these are things that become part of the
permanent record.” Brady visited the archives at the Bush Library and rummaged
through boxes with his name on them. “Some of the messages were a little more
candid than you like to recall they were,” he said in an interview later.
“Because of the hustle of the day, many times you’re writing notes to someone:
‘I think that’s a stupid idea.’ . . . An awful lot more is
preserved than you would imagine.” That’s how it’s supposed to happen, anyway.
The memo that Don McGahn sent to
executive-office personnel in February, 2017, came with a warning, about
leaving the White House:
At all times, please keep in mind that
presidential records are the property of the United States. You may not dispose
of presidential records. When you leave EOP employment, you may not take any
presidential records with you. You also may not take copies of any presidential
records without prior authorization from the Counsel’s office. The willful
destruction or concealment of federal records is a federal crime punishable by
fines and imprisonment.
Custody of the records
of the Trump White House will be formally transferred to the National Archives
at noon on January 20, 2021, the minute that Biden takes his oath of office on
the steps of the Capitol. Trump, defying tradition, is unlikely to attend that
ceremony. It’s difficult, even, to picture him there. Maybe he’ll be in the
Oval Office, yanking at the drawers of Resolute, the Presidential desk, barking
out orders, cornered, frantic, panicked. Maybe he’ll tweet the whole thing. The
obligation, the sober duty, to save the record of this Administration will fall
to the people who work under him. It may well require many small acts of
defiance.
The truth will not come
from the ex-President. Out of a job and burdened by debt, he’ll want to make
money, billions. He’ll need, crave, hunger to be seen, looked at, followed,
loved, hated; he’ll take anything but being ignored. He may launch a TV show,
or even a media empire. Will he sell secrets to American adversaries, in the
guise of advice and expertise? It isn’t impossible.
“Will you shut up, man?”
an exasperated Biden said to Trump during their Presidential debate.
Donald J. Trump cannot shut up. Aside from the prospect of silencing
former White House staffers, shredding papers, deleting files, and burying
evidence, another danger, when the sun sets on the twentieth of January, won’t
be what’s left unsaid, unrecorded, and unsaved but what Trump will be willing
to say, still. ♦
