Editor’s Note: Julian Zelizer, a CNN political analyst, is a professor of history and public affairs at Princeton University and author of the book “Abraham Joshua Heschel: A Life of Radical Amazement.” Follow him on Twitter @julianzelizer. The views expressed in this commentary are his own. View more opinion on CNN.
In one form or another, most presidents have violated the Presidential Records Act, which requires the proper preservation of presidential records before they are transferred to the National Archives at the end of the administration.
But former President Donald Trump’s actions go further than previous presidents, amounting to egregious violations of a law that came about in the aftermath of President Richard Nixon’s traumatic Watergate scandal.
This is not the first time that Trump has proven to be extraordinarily effective at eluding mechanisms designed to promote transparency and accountability, and more effective guardrails need to be put in place.
In recent days, the nation has learned that Trump made a habit of tearing up documents while he was in office. There have also been several news reports of Trump administration staffers putting documents in burn bags to be destroyed. On Thursday, New York Times journalist and CNN political analyst Maggie Haberman said staff in the White House residence would periodically find the toilet clogged with “wads of clumped up wet printed paper.” (Trump denied her reporting as “categorically untrue.”) Additionally, there were at least 15 boxes of documents and other items that the former President took with him to Florida after his term came to a tumultuous close. Trump advisers, citing a chaotic end to the presidency, said the boxes were filled with mementos, gifts and correspondence.
Trump issued a statement Thursday saying his discussions with the National Archives about returning records had been “collaborative and respectful,” but the National Archives is now asking the Department of Justice to investigate Trump’s handling of White House records, according to a source familiar with the matter. While a vast majority of referrals to the Justice Department do not end up sparking a formal investigation, it’s a remarkable turn of events for Trump, who repeatedly hounded 2016 Democratic presidential nominee Hillary Clinton for using a private email server while she was secretary of state.
In the past, office texts and emails have often eluded the preservation process. During the Iran-Contra scandal, National Security Council staffer Oliver North and his secretary Fawn Hall infamously shredded incriminating documents. “I shredded because I thought it was the right thing,” he said. And when former President Bill Clinton left office, he was asked to return thousands of dollars worth of gifts to the National Archives.
The Presidential Records Act was signed into law in 1978 by President Jimmy Carter, who vowed to “make the Presidency a more open institution.” The law, which also established a process to granted the public access to presidential records, was an extension of the Presidential Recordings and Materials Preservations Act of 1974, which applied specifically to Nixon’s records in the wake of the Watergate scandal.
While the Presidential Records Act did not go into effect until 1981, presidents had been voluntarily preserving documents since the 1930s as a way to cement their legacies and build out their presidential libraries. But after Watergate, Congress wanted to prohibit the president from playing an outsized role in what the public could or could not access.
By passing the Presidential Records Act, Congress sought to make it possible for the public to better understand how a presidency unfolded and allow future elected officials the opportunity to access critical information, whether for scholarship, an investigation, national security concerns or more.
For historians, we rely on the records that presidents leave behind as our bread and butter. These documents often provide the best and most accurate record of the those who inhabited the White House. While tourists walk through the display areas of presidential libraries, historians are squirreled away in the reading room looking through boxes of memos, letters, correspondence, internal publications, reports and more.
But there is a fundamental problem with the law. There isn’t a strong enforcement mechanism. The entire process depends on administrations acting in good faith since the National Archives doesn’t have anyone who is regularly monitoring the White House. “I doubt it occurred to anybody when it passed that it would need an enforcement mechanism,” James Grossman, the executive director of the American Historical Association, told the Washington Post.
There are efforts to address this problem. Sen. Chris Murphy of Connecticut and Rep. Mike Quigley of Illinois have pushed a bill that would require an archivist to conduct yearly inspections, but their efforts have been unsuccessful thus far.
Trump’s ability to exploit the Presidential Records Act has highlighted a broader problem in the past few years. So much of our government and the system of checks and balances depend on the assumption that elected officials will simply abide by the norms of the office. We count on presidents to respect internal guardrails instead of pursuing political power at all costs. We count on legislators to be driven by a love of country – and not partisanship – to check the executive branch.
When those norms are trampled over, our constitutional system of checks and balances, as well as the post-Watergate reforms meant to curb abusive presidential behavior, is rendered ineffective and insufficient.
In 2022, there are two paths forward to deal with these issues. Congress could push for the reforms that Murphy and Quigley have put forward to diminish the latitude officials have to flout the rules. And voters can consistently support politicians who demonstrate the capacity to respect certain limits.
If we don’t address this problem, we will continue to live in Nixonland – a world in which the president determines what is and isn’t legal, as the former President famously told David Frost in a 1977 television interview. And for every American, no matter where they fall on the political spectrum, that’s a dangerous place to be.
This article has been updated with the latest reporting on Trump’s presidential records.