The Presidential Records Act was not designed for a president as lawless and shameless as Trump.
About the author: David A. Graham is a staff writer at The Atlantic.
Donald Trump doesn’t like to read, and, apparently, he doesn’t want other people to read either.
A series of reports this week have revealed how extensively the former president destroyed documents produced by his administration, in defiance of federal laws. When the House committee investigating January 6 and Trump’s attempts to overturn the election received documents it had requested from the National Archives, some of them had been ripped up and then taped back together—the work, respectively, of Trump, who has long handled papers that way, and staffers, who were trying to comply with federal laws requiring records preservation.
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When he didn’t try to destroy documents, Trump absconded with some of them. In January, The Washington Post reports, the National Archives and Records Administration had to collect 15 boxes of records that Trump had improperly taken with him to his estate at Mar-a-Lago. The materials included a letter from President Barack Obama, correspondence with North Korean dictator Kim Jong Un, and even the map of Hurricane Dorian’s path that Trump infamously altered with a Sharpie.
The attempted map-napping is both the most comic and perhaps least important detail in the reports. The Presidential Records Act, passed after Watergate, requires that all documents from an administration be preserved and archived by the government to create a historical record and avoid cover-ups. Compliance has sometimes been uneven, but it worsened under the last president. “Trump’s shredding of paper was far more widespread and indiscriminate than previously known and—despite multiple admonishments—extended throughout his presidency,” the Post reported. Crews would come behind the president, sweep up the remains, and then try to reassemble them. Some of these documents could be essential to understanding a singularly corrupt and dangerous administration, whether by congressional investigators today or historians in the future.
The PRA, like many laws dealing with the executive branch, was not designed for a president as lawless and shameless as Trump. These laws were designed to deal with someone like Richard Nixon: a corrupt lawbreaker, yes, but one who cared deeply about American institutions and his historical legacy. As a result, the statutes have weak or nonexistent enforcement mechanisms, because their framers assumed that shame or political pressure would take care of that.
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“The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people,” the archivist of the United States said in a statement. The problem is that the statute doesn’t treat it as “critical” by instituting serious consequences for breaking it. The text doesn’t lay out enforcement, and when lawsuits have asked the courts to step in, judges have shied away from trying to “micromanage the president’s day-to-day compliance,” as a federal judge put it in 2020.
Trump learned early in his private-sector career that it is sometimes more advantageous to break the law and dare someone to call you out than to follow it—and that even if you get caught, the penalty is often a fine dwarfed by the upside of the infraction. He brought that philosophy to the White House, where he encountered rules that were even less enforceable. Trump’s White House lawyers repeatedly warned him about the legal requirement to save documents, just as they warned him about other possible violations of the law, but he had something more powerful than an attorney’s knowledge of the law: the knowledge that it didn’t matter.
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Soon after the 2016 election, the president-elect announced a plan for his assets that fell far short of requirements for divestiture or a blind trust, but the Office of Government Ethics had no recourse except a string of bizarre tweets. One hazard of Trump’s continued involvement in his own finances was the risk of violating the Constitution’s emoluments clause—but this, too, proved unenforceable. When plaintiffs (including members of Congress) tried to sue, their cases were dismissed because they lacked standing under the law.
Trump circumvented anti-nepotism rules against appointing family members to top administration positions by simply having the family members he appointed go unpaid. The salaries that advisers such as Jared Kushner and Ivanka Trump forwent were small compared with their fortunes, and besides, the family was making money from the government in other ways. When Trump aides flagrantly violated the Hatch Act, which is meant to prevent executive-branch officials from dabbling in electoral politics, they knew they had little to fear, because the person in charge of enforcing the law was the president himself. “Let me know when the jail sentence starts,” Kellyanne Conway sneered.
These relatively petty violations were just a warm-up. During the 2016 election, Trump welcomed Russian interference, but Special Counsel Robert Mueller concluded that he could not indict a sitting president. Emboldened, Trump set about soliciting foreign help even more brazenly. The one body that could punish him was Congress, but he realized that he could run out the clock on investigations by stonewalling—with, you guessed it, little enforcement. Eventually, Congress took the dramatic step of impeaching him, but once Trump realized that the Senate would not convict him, he was back to the same behavior even before the vote occurred. As I wrote in January 2021, his attempts at overturning the 2020 election were the price of failing to punish him then.
The Presidential Records Act was designed to make sure that future generations could understand serious misdeeds like these; it is a bitter irony that the law may fail for the same reasons that the misdeeds went unpunished. Scotch-tape-wielding officials can save only so much, and records that have been destroyed can never be recovered. The problem is one that a famous creator of executive-branch records, Donald Rumsfeld, might have called an “unknown unknown”: Because there is no way of identifying what records Trump might have destroyed or stolen, we’ll never know what we don’t know about the Trump presidency.