Experts: Records act clear on document rules
Trump’s disregard ‘unprecedented,’ former Attorney General Barr says
WASHINGTON — Donald Trump isn’t the first to face criticism for flouting rules and traditions around the safeguarding of sensitive government records, but national security experts say recent revelations point to an unprecedented disregard of post-presidency norms established after the Watergate era.
Document dramas have cropped up over the years.
Democrat Lyndon Johnson’s national security adviser held onto explosive records for years before turning them over to the Johnson presidential library. The records showed Richard Nixon’s campaign was secretly communicating in the final days of the 1968 presidential race with the South Vietnamese government in an effort to delay the opening of peace talks to end the Vietnam War.
A secretary in Ronald Reagan’s administration, Fawn Hall, testified that she altered and helped shred documents related to the Iran-Contra affair to protect Oliver North, her boss at the White House National Security Council.
Most recently, Hillary Clinton, while President Barack Obama’s secretary of state, faced FBI scrutiny that extended into her 2016 presidential campaign for her handling of highly classified material in a private email account. The FBI director recommended no criminal charges but criticized Clinton.
As more details emerge from last month’s FBI search of Trump’s Florida home, the Justice Department has painted a portrait of an indifference for the rules on a scale that some thought inconceivable after establishment of the Presidential Records Act in 1978.
“I cannot think of a historical precedent in which there was even the suspicion that a president or even a high-ranking officer in the administration, with the exception of the Nixon administration, purposely and consciously or even accidentally removing such a sizable volume of papers,” said Richard Immerman, who served as assistant deputy director of national intelligence
from 2007 to 2009.
FBI agents who searched Trump’s Mar-aLago resort on Aug. 8 found more than 100 documents with classification markings, including 18 marked top secret, 54 secret and 31 confidential, according to court filings. The FBI also identified 184 documents marked as classified in 15 boxes recovered by the National Archives in January, and it received additional classified documents during a June visit to Mar-a-Lago.
An additional 10,000 other government records with no classification markings were also found.
That could violate the Presidential Records Act, which says that such records are government property and must be preserved.
That law was enacted after Nixon resigned in the midst of the Watergate scandal and sought to destroy hundreds of hours of secretly recorded White House tapes. It established government ownership of presidential records starting with Ronald Reagan.
The act specifies that after a president leaves office, the National Archives and Records Administration takes legal and physical custody of the outgoing administration’s records and begins to work with the incoming White House staff on appropriate records management.
According to the National Archives, records that have no “administrative, historical, informational, or evidentiary value” can be disposed of before obtaining the archivist’s written permission.
Trump has claimed he declassified all
the documents in his possession and had been working with department officials on returning documents when they conducted the Mar-a-Lago search. But Trump’s former attorney general, Bill Barr, said in a Fox News interview that he was “skeptical” of Trump’s claim.
“People say this (raid) was unprecedented — well, it’s also unprecedented for a president to take all this classified information and put them in a country club, OK,” Barr said.
Neil Eggleston, who served as White House counsel during the final years of the Obama administration, recalled that Fred Fielding, who held the same position in the George W. Bush administration, advised him as he started his new job to hammer home to staff the requirements set in the records act.
Trump’s White House counsel, Donald McGahn, sent a staff-wide memo in the first weeks of the administration underscoring “that presidential records are the property of the United States.”
Presidents are not required to obtain security clearances to access intelligence or formally instructed on their responsibilities to safeguard secrets when they leave office, said Larry Pfeiffer, a former CIA officer and senior director of the White House Situation Room.
But guidelines issued by the Office of the Director of National Intelligence, which oversees the intelligence agencies, require that any “sensitive compartmented information” be viewed only in secure rooms known as “SCIFs.”
A president can keep reports presented during a briefing for later review. And presidents aren’t always briefed in a SCIF, depending on their schedules and locations, Pfeiffer said.