Although an FBI raid on the home of a former president had been unprecedented until this month, clashes over compliance with a law called the Presidential Records Act are nothing new.
The 1978 law, signed by President Jimmy Carter, was in response to fallout from the Watergate scandal, when former President Richard Nixon tried to claim that all his White House records belonged to him.
The law specifies that “the United States shall reserve and retain complete ownership, possession, and control of presidential records.”
Long before enactment of the Presidential Records Act, President Franklin D. Roosevelt’s records were the first to go to the National Archives and Records Administration for safekeeping. Before that, presidents took their records with them when leaving the White House.
It’s not likely President Donald Trump could be prosecuted for a violation of the Presidential Records Act, presidential historian Craig Shirley told The Daily Signal in an interview.
“Before FDR, every president just took their records home; some kept them around the house, others used [them] for the fireplace,” Shirley said. “Let’s face it, keeping papers that are supposed to be in presidential archives is akin to not returning an overdue library book.”
Here are three past controversies involving presidents’ records.
1. Obama Foundation Supplants Archives
When President Barack Obama left office in January 2017, some 30 million pages of documents from his administration were moved to a warehouse near Chicago that previously was the site of a furniture store.
The Obama Foundation announced a plan to digitize all of the records ahead of building a $500 million Obama Presidential Center.
The major difference between the Obama center and previous presidential libraries is that it would be run by the Obama Foundation, a nonprofit established by the former president and former first lady Michelle Obama.
Going back to Herbert Hoover, the National Archives and Records Administration has maintained presidential libraries and records.
Obama’s plan caused some angst among historians, The New York Times reported.
“The absence of a true Obama presidential library will have the effect of discouraging serious and potentially critical research into the Obama presidency,” David Garrow, a Pulitzer Prize-winning historian and Obama biographer, told the Times.
Timothy Naftali, a former director of the Richard Nixon Presidential Library and Museum, said the Obama move “opens the door to a truly terrible Trump library.”
The day after the FBI’s raid on his Florida estate, Mar-a-Lago, Trump publicly brought up the documents held by Obama.
“President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!” Trump said in an Aug. 9 post on Truth Social, the social media platform launched early this year created by Trump Media & Technology Group.
This message prompted the National Archives to issue a statement Aug. 12 in response to Trump that says:
The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA).
NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally, NARA maintains the classified Obama presidential records in a NARA facility in the Washington, D.C., area. As required by the [Presidential Records Act], former President Obama has no control over where and how NARA stores the presidential records of his administration.
2. Clinton’s Presidential Library
Former President Bill Clinton’s presidential library in Little Rock, Arkansas, delayed the release of tens of thousands of pages of records in the lead-up to the 2016 presidential race in which Hillary Clinton was the expected Democrat front-runner.
The delay by the William J. Clinton Presidential Library and Museum came with the help of Obama White House lawyers, Politico reported in February 2014.
The episode led to Congress’ passing a law that year to curb White House prerogatives on secrecy, which Obama signed.
The legislation specifically updated the Presidential Records Act to direct that no one use personal email to conduct White House business.
3. Bush and Post-9/11 Action
In November 2001, in response to the 9/11 terrorist attacks, President George W. Bush issued an executive order to limit access to presidential records going back to the Reagan administration. The order included the records of his father, Ronald Reagan’s successor as president.
The 12-year shield under the Presidential Records Act protecting records from going public after a president leaves office had expired for the Reagan administration.
But Bush’s order resealed the presidential records maintained by the National Archives and required a “demonstrated, specific need” for documents to overcome a past president’s assertion of executive privilege to prevent their release.
On a war footing, the Bush administration argued that the records remain under seal for national security reasons.
After the American Historical Association sued, part of the younger Bush’s executive order was struck down by a federal court.
Obama, after promising transparency on the campaign trail, revoked Bush’s executive order shielding records after he took office in January 2009, making most of the records open again and no longer requiring a “demonstrated, specific need.”
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