The public will not see Donald Trump’s White House records for years, but there is growing concern the collection will never be complete – leaving a hole in the history of one of America’s most tumultuous presidencies.
Trump has been cavalier about the law requiring that records be preserved. He has a habit of ripping up documents before tossing them out, forcing White House workers to spend hours taping them back together.
White House staff quickly learned about Trump’s disregard for documents as they witnessed him tearing them up and discarding them. “My director came up to me and said, ‘You have to tape these together,’” said Solomon Lartey, a former White House records analyst.
The first document he taped back together was a letter from Chuck Schumer, the Democratic leader in the Senate, about a government shutdown. “They told [Trump] to stop doing it. He didn’t want to stop.”
Lartey said the White House chief of staff’s office told the president that the documents were considered presidential records and needed to be preserved by law. About 10 records staff ended up on Scotch tape duty, starting with Trump’s first days in the White House through at least mid-2018.
The president also confiscated an interpreter’s notes after speaking with Vladimir Putin – a conversation where topics were suspected to have included Russia’s meddling in the 2016 election. Trump scolded his White House counsel for taking notes at a meeting during the Russia investigation by special counsel Robert Mueller. Top executive branch officials had to be reminded not to conduct official business on private email or text messaging systems, and to preserve it if they did.
Around Trump’s first impeachment and on other sensitive issues, some normal workflow practices were bypassed, a person familiar with the process said. Apparently worried about leaks, higher-ups and White House lawyers became more involved in deciding which materials were catalogued and scanned into White House computer networks.
Trump’s staff also engaged in questionable practices by using private emails and messaging apps. Former White House counsel Don McGahn in February 2017 sent a memo that instructed employees not to use non-official text messaging apps or private email accounts. If they did, he said, they had to take screenshots of the material and copy it into official email accounts, which are preserved. He sent the memo back out in September 2017.
In the Trump White House “not only has record-keeping not been a priority, but we have multiple examples of it seeking to conceal or destroy that record”, said Richard Immerman, from the Society for Historians of American Foreign Relations.
And now Trump’s baseless claim of widespread voter fraud – which postponed for weeks an acknowledgement of Joe Biden’s presidential victory – has delayed the transfer of documents to the National Archives and Records Administration, further heightening concern about the integrity of the records.
Lack of a complete record might also hinder investigations of Trump, from his impeachment trial and other prospective federal inquiries to investigations in the state of New York.
Even with requests by lawmakers and lawsuits by government transparency groups, there is an acknowledgment that noncompliance with the Presidential Records Act carries little consequence for Trump. In tossing out one suit last year, US circuit judge David Tatel wrote that courts cannot “micromanage the president’s day-to-day compliance”.
The act states that a president cannot destroy records until he seeks the advice of the national archivist and notifies Congress. But the law does not require him to heed the archivist’s advice. It does not prevent the president from going ahead and destroying records.
Most presidential records today are electronic. Records experts estimate that automatic backup computer systems capture a vast majority of the records, but cannot capture records that a White House chooses not to create or log into those systems.
When Trump lost the November election, records staffers were in position to transfer electronic records and pack up the paper ones to move them to the National Archives by 20 January as required by law. But Trump’s reluctance to concede has meant they will miss that date. The National Archives has said it will still take custody of them.
The Biden administration can request to see Trump records immediately, but the law says the public must wait five years before submitting freedom of information requests. Even then, Trump – like other presidents before him – is invoking specific restrictions to public access of his records for up to 12 years.
The National Security Archive, two historical associations and Citizens for Responsibility and Ethics in Washington have sued to prevent the Trump White House destroying electronic communications or records sent or received on non-official accounts, such as personal email or WhatsApp. They alleged the White House has already likely destroyed presidential materials.
The court refused to issue a temporary restraining order after government lawyers told the judge they had instructed the White House to notify all employees to preserve all electronic communications in their original format until the suit was settled.
“I believe we will find that there’s going to be a huge hole in the historical record of this president because I think there’s probably been serious noncompliance of the Presidential Records Act,” said Anne Weismann, one of the lawyers representing the groups in their suit.
“I don’t think president Trump cares about his record and what it says. I think he probably cares, though, about what it might say about his criminal culpability.”
Trump faces several legal challenges when he leaves the White House. There are two New York state inquiries into whether he misled tax authorities, banks or business partners. Also, two women alleging he sexually assaulted them are suing him.
Presidential records were considered a president’s personal property until 1978, when Congress passed the Presidential Records Act over worry that Richard Nixon would destroy Watergate-related White House tape recordings that led to his resignation.
After that, presidential records were considered property of the American people – if they are preserved. Lawmakers have introduced legislation to require audits of White House record-keeping and compliance with the law.
“The American public should not have to wait until a president has left office to learn of problems with that president’s record-keeping practices,” Weismann said.
With the Associated Press