The modern rules dictating the proper handling of U.S. government records were born after a high crime. In 1974, President Richard Nixon declared that it was his right to destroy the records made in his White House, including secret recordings of Oval Office meetings. But the U.S. Supreme Court ruled otherwise. After that ruling and Nixon’s resignation, Congress passed the Presidential Recordings and Materials Preservation Act to put the Nixon materials in the National Archives, and later the Presidential Records Act of 1978, which made clear that the government—not the private citizens who once worked in the White House—owned all presidential records.
That origin story is what gives America’s archival laws and regulations their punch. Everyone from the president down to the most junior federal bureaucrat swears an oath to protect the Constitution and is informed that keeping records is a crime. Many citizens, including those who are in or have left office, have been charged in violation of these rules, their careers destroyed or damaged, some sent to prison. Even with these “lesser” cases, it is the Nixon example that sets the bar, indicating that this is not some minor issue or mere convention. Protecting the paper of a presidency is about nothing less than the rule of law, government accountability, and whether everyone in our government, and in this country, is held to the same standards.
We have both had the honor of taking that oath to serve in the executive branch (both of us as part of the Obama administration and one of us—Jon—in the Clinton administration as well). In our first days in office, we went through archival briefings, dry and detailed, and in our last days we knew that the records—good and bad—were not ours to keep and were to be preserved. That experience of working for the government underscored exactly what many Americans who have never walked into a federal building believe intuitively: The president has to follow the same rules as anyone else. This is part of why we were infuriated to learn that former President Donald Trump is reported to have removed unique materials from the White House that later had to be recovered from his Mar-a-Lago resort. And it is why we believe that the Department of Justice must investigate Trump for his handling of government records and, if the facts justify it, prosecute him, just as other less prominent Americans have been for similar behavior.
The Presidential Records Act and other archival regulations are intended to ensure that all documents and materials are protected and preserved for posterity. Executive privilege protects the president while in office; afterward these documents explain what the commander in chief and his teams did or did not do, as well as why. This accountability is linked directly to the…