Ever since his home in Florida was searched by federal agents last year, former president Donald Trump has repeatedly said he had a right to take documents with him as he left the White House.
His rationale? The 1978 Presidential Records Act, enacted in the wake of Watergate after an expensive fight with former President Richard Nixon over his own papers and records.
Trump says this law gives him a “right” to the White House records he brought to Mar-a-Lago after he left the presidency, which in turn were the subject of his indictment last week. In a speech in Georgia on Saturday, Trump defended himself by saying, “As president, all of my documents fell under what is known as the Presidential Records Act” and could only be “judged” by it.
It’s not the first time he’s cited the law: In his town hall appearance on CNN on May 10, Trump said he had “every right” to take the papers “under the Presidential Records Act.”
“I was there and I took what I took and it gets declassified,” Trump said. “I had every right to do it, I didn’t make a secret of it. You know, the boxes were stationed outside the White House, people were taking pictures of it.”
But the reality is just the opposite.
The Presidential Records Act reads pretty clearly who owns presidential records, defined as materials created or received by the president or his staff while carrying out official duties ― and it’s not the president: “The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.”
“I don’t know how to be more clear that these are the records of the people of the United States,” said Trudy Huskamp Peterson, who spent two years as the Acting Archivist of the United States in the 1990s and has been an archival consultant since 2002 in Washington.
Peterson said that’s not just her opinion but one widely shared within both archival and legal fields. “The definition of presidential records would not have had to be made with a distinction of personal records if they were all personal at the time they were created, and they were not,” she said.
“The Presidential Records Act (PRA; 44 U.S.C. §§2201-2207) established public ownership of records created by Presidents and their staff in the course of discharging their official duties,” the nonpartisan Congressional Research Service said in a 2019 report.
“The PRA additionally established procedures for congressional and public access to presidential and vice presidential information and the preservation and public availability of such records at the conclusion of a presidency.”
The report goes so far as to note that the act is intended to explicitly remove the ownership of presidential records from a president. “The PRA fundamentally changed the status of presidential records as publicly owned materials,” it said. “Prior to the PRA’s enactment, presidential papers were traditionally the private property of the President, who would then donate the materials to institutions for public consumption.”
The National Archives and Records Administration (NARA), which appears to have set the Trump indictment in motion by seeking the return of presidential papers from Trump after he left the White House, has the same interpretation.
“The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations,” the agency says on its website.
That is, suffice to say, not exactly how Trump sees it.
“Remember this: This is the Presidential Records Act. I have the right to take stuff,” he told FOX News host Sean Hannity on March 27. “I have the right to look at stuff.”
And after his first indictment by New York state authorities in the Stormy Daniels hush money affair, Trump told a crowd of supporters at Mar-a-Lago he was only doing what was expected by the 1978 law.
“Just so everyone knows, I come under the Presidential Records Act, which was designed and approved by Congress long ago, just for this reason. Under the Act, I’m supposed to negotiate with NARA,” he said, calling NARA a “radical left troublemaking organization” due to the investigation into him.
That assertion drew a rebuke from the Society of American Archivists, the nation’s oldest and largest professional organization for archivists, which issued a statement disputing Trump’s claims about the PRA.
“Only when individuals attempt to undermine the provisions of the Presidential Records Act do we see the courts and investigators become part of the disposition of records — records that are the property of the people of the United States. Any claims from any public officials otherwise are not grounded in law or fact. They are fabrications,” the group said.
Peterson stuck up for NARA, which she headed as the nation’s top archivist from 1993 to 1995. She was then and is now registered as an independent politically and said archivists take the duty to be neutral when dealing with records very seriously.
She described NARA as “the most apolitical organization trying to deal with highly political materials.”
“I think he is dead wrong,” Peterson said of Trump.
“And I don’t know whether he is wrong because he is lying and he knows better or whether he truly does believe that he is king, not president.”
But even if Trump’s assertions about the Presidential Records Act were true, they would not matter with regard to the indictment that was unsealed on Friday, in which the lion’s share of charges, 31 counts, were made under the Espionage Act, for “willful retention” of sensitive defense information.
The 1917 law prohibits obtaining or copying information about national security with the intent to use it to hurt the United States or help another country. None of Trump’s charges were related to the civil Presidential Records Act law.
There is a narrow exception within the PRA for purely personal records like diaries, journals or materials that have no relation or impact to officials’ duties. But the materials at the center of the Department of Justice’s case do not appear to be those kinds of documents.
According to the indictment, the documents originated from several agencies in the U.S. intelligence community, including the CIA, the National Security Agency and the National Geospatial Intelligence Agency, as well as from the Defense and Energy Departments.
Peterson said she is disappointed by the focus on the classified documents only.
“I would really like to see some recognition that it isn’t just the classified documents that are the problem here. The problem here is taking the people’s property,” she said.