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For the first two centuries of US history, outgoing presidents simply took their documents with them when they left the White House. The materials were considered their personal property.
But for the past four decades, every presidential document — from notebook scribbles to top-secret security plans — is supposed to go straight to the National Archives. because the material is considered the property of the American people.
So when former President Donald Trump left office on Jan. 20, 2021, all of his records should have traveled from the White House to the National Archives, according to Jason Baron, who served as director of litigation at the National Archives for 13 years.
“No president has the right to retain presidential records after leaving office,” Baron said. “And so it’s an extraordinary circumstance if presidential records are found in the residence of a former president or anywhere else under his control.”
But some records — paper and electronic — were kept at Trump’s Mar-a-Lago resort in Palm Beach, Florida. Officials found 15 boxes of documents from Trump’s property in January.
And on Monday, the FBI collected 11 more sets of documents, including four marked “top secret”, three marked “secret” and three labeled “confidential”. At least one set of documents has been labeled “top secret/sensitive compartmentalized information”. These are the three distinct levels for classified government documents.
The warrant authorizing the search said the FBI was investigating a number of possible crimes, including violations of the Espionage Act. Trump has not been charged with any crime and denies any wrongdoing.
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Why can’t presidents keep their documents these days?
The rules have changed for a reason: Watergate.
When President Nixon resigned amid the 1974 scandal, he wanted to take his documents home to California, including his infamous tape recordings.
Congress realized that they would not have access to this material, and they also feared that it would be destroyed. So lawmakers passed the Presidential Records and Materials Preservation Act, which made all of Nixon’s material public property.
However, this measure applied only to Nixon. In 1978, Congress passed the more sweeping Presidential Records Act, which has been the norm ever since.
“Every president, when he leaves office, the documents that were created by the president and his staff are presidential documents that go to the National Archives,” Baron said. “The owner is the American people.”
This includes all presidential documents, whether unclassified routine memos or top secret national security documents.
Before these laws, there were really no rules regarding presidential records. Presidents just took what they wanted when they left office.
“At first, presidents like John Adams and Thomas Jefferson were very conscious of their place in history and their legacy,” said presidential historian Lindsay Chervinsky, author of The Cabinet: George Washington and the Creation of an American Institution. “And so they were very careful about curating their materials, cataloging their materials, and then of course kind of making sure that what was left was what they wanted to be left. So that also includes a certain obliteration.”
Additionally, presidential libraries did not exist until President Franklin Roosevelt opened his in 1941.
Trump controversies with documents
Throughout his presidency, anecdotes surfaced about Trump’s handling of documents. To begin with, he didn’t like reading them, and there were reports that he sometimes tore them up or even flushed them down the toilet.
Trump talked about, or tweeted, sensitive material that was supposed to be classified. Such the material was also allegedly shared with people who did not have permission to read it.
Before Trump, incumbent presidents were portrayed as fully cooperative with the registration process, experts told NPR. Baron said he was only aware of minor episodes, where a former president might be asked to hand over a small gift he received while in office.
There have been a few cases involving former presidential aides. In one case, Sandy Berger, who had served as President Bill Clinton’s national security adviser, was accused of smuggling classified documents from the National Archives out of his pants. He was eventually fined $50,000.