Former President Donald Trump says he never flushed the story down the White House toilet.
But some historians and public interest advocates say new details about Trump’s habit of destroying documents – as well as his decision to bring back at least 15 boxes of papers from Washington – have exposed loopholes in the law governing preservation of the White House archives and threatened to cloud the image of his presidency in a significant way for posterity and the rule of law.
“You can’t hold anyone accountable and you can’t write an accurate story if you don’t know everything in it,” said Lee White, an attorney who is executive director of the National Coalition for History. . “For historians, it’s the old ‘if the tree falls in the forest and there’s no one there’, how will you know a recording is missing if it’s missing?”
Trump’s presidential records have recently been a hot topic in Washington due to his efforts to shield information from the House special committee investigating his role in the January 6, 2021 attack on the U.S. Capitol, which was intended to prevent the certification of President Joe Biden’s victory – and Trump’s defeat – in the 2020 election.
As president, Trump made a habit of tearing up White House files, and the National Archives said it received some documents that had been glued together and others that remained in tatters.
When he left office, Trump took documents to his Mar-a-Lago compound in Florida, where they were recently recovered by the National Archives. White House call logs from Jan. 6 show no calls to or from Trump during the assault on the Capitol, despite public reports that he spoke to lawmakers while he was in progress, confirmed a source familiar with the recordings told NBC News.
And in her upcoming book on Trump, New York Times reporter Maggie Haberman reports that White House aides sometimes found wads of printed paper blocking toilets and thought Trump had emptied them, according to Axios.
In a statement on Thursday, Trump claimed the information in Haberman’s book, “Confidence Man,” which is due for publication in October, is false.
“Another false story, that I flushed papers and documents down the White House toilet, is categorically untrue and simply fabricated by a journalist in order to publicize an essentially fictional book,” he said. -he declares. At the same time, he confirmed that he had brought boxes to Mar-a-Lago, which he described as containing “letters, records, newspapers, magazines and miscellaneous items”.
This set included what Trump once called “love letters” from North Korean dictator Kim Jong-Un and the traditional note from predecessor to successor that President Barack Obama left for Trump during the 2017 transition of power. as well as documents marked classified and “top secret,” the Washington Post reported.
Under the Presidential Records Act, a law enacted in response to President Richard Nixon’s Watergate scandal and most recently updated in 2014, White House officials, including the president, are required to retain most records. and recordings for transfer to the National Archives. The agency provides training to White House officials on information processing.
“Who could argue the merits of this one?” asked former Rep. Mike Harrington, a Democrat from Massachusetts who was a co-sponsor of the 1978 law, in an interview. “And who could argue that guy doesn’t care about ground rules?”
From time to time, presidential documents or other public property have disappeared from the White House. In December 2009, for example, President Barack Obama’s administration recovered 22 million “missing” White House emails from President George W. Bush that had been mislabeled. And White House aides, under both Republican and Democratic administrations, have long found ways to keep their communications and meetings private, from meeting lobbyists in cafes outside the White House to using mail servers and party apps that automatically delete messages.
“You’re going to make mistakes,” said Trudy Peterson, who served as Acting Archivist of the United States for the first two years of President Bill Clinton’s administration. “What I find unusual this time is the volume.”
Peterson said it is a matter of “good governance and democracy” for the White House to create and maintain records. “Records enable the citizen to know how government has operated and to hold government accountable for its actions,” she said.
But the law contains no enforcement mechanism. There is no sanction in the event of violation and the National Archives cannot oblige a president or his collaborators to conform to it.
“The archivist has no legal authority; all he can do is give advice,” said Anne Weismann, a public interest lawyer who sued the government over the Bush emails. in the White House when she was chief counsel for the group Citizens for Responsibility and Ethics in Washington. .
Weismann said federal courts have frowned on civil lawsuits involving the Presidential Records Act on the grounds that they have no role in a separation of powers struggle between the executive and legislative branches of government. But she said Trump’s behavior could constitute criminal conduct under two separate laws prohibiting the destruction of federal property and doing so in a federal building.
“Both laws apply, but they are criminal laws, which means the conduct must be voluntary,” she said. “I think the evidence here strongly suggests deliberate conduct.”
Historians say past presidents treated their records with respect for a variety of reasons, including the law, the public interest in understanding how and why decisions were made, and the smooth transition of a president’s wisdom and knowledge. to the other. What Trump did, some say, represents a departure from the common practice of post-Nixon-era presidents.
“The Presidential Archives Act was created so that this would never happen again,” said James Grossman, executive director of the American Historical Association.