Former president and current presidential candidate Donald Trump continues to inaccurately describe the Presidential Records Act.
In a Fox interview that aired on Monday, Trump criticized the FBI for searching his Mar-a-Lago resort in August for presidential documents and argued he should have been allowed to engage in further discussions with the government over these records. In fact, Trump said, the “very specific” Presidential Records Act actually requires extended talks with the National Archives and Records Administration.
“It says you are going to discuss the documents,” Trump said. “You discuss everything – not only docu– everything – about what’s going in NARA, et cetera, et cetera. You’re gonna discuss it. You will talk, talk, talk. And if you can’t come to an agreement, you’re gonna continue to talk.”
Trump made a similar claim in an interview in January, claiming then that “the Presidential Records Act is – I’m supposed to negotiate, I’m supposed to deal.”
Facts First: Trump’s claims are false. The Presidential Records Act says that, the moment a president leaves office, NARA gets custody and control of all presidential records from his administration. Nothing in the act says there should be prolonged “talk” or a negotiated “agreement” between a former president and NARA over a former president’s return of presidential documents – much less that there should have been a months-long battle after NARA first contacted Trump’s team in 2021 to try to get some of the records that had not been handed over at the end of his presidency.
Jason R. Baron, former director of litigation at NARA, told CNN in an email on Tuesday: “The former President is simply wrong as a matter of law. As of noon on January 20, 2021, when President Biden took office, all presidential records of the Trump Administration came into the legal custody of the Archivist of the United States. Full stop. That means no presidential records ever should have been transferred to Mar-a-Lago, and there was no further talking or negotiating to be had.”
Timothy Naftali, a CNN presidential historian, New York University professor and former director of the Richard Nixon presidential library, described Trump’s claim as “nonsense” and said the former president’s description of the Presidential Records Act is “a matter of fantasy,” concocted to allow Trump to “pretend that he’s a victim.”
The act, Naftali said in a Tuesday interview, makes clear that documents Trump had at Mar-a-Lago are presidential records that legally belong to the public and are legally required to be in NARA’s custody. The act provides “no room for debates and discussions between presidential advisors and the National Archives at the end a presidency” about such records, Naftali said.
What the Presidential Records Act says
The key sentence from the Presidential Records Act is unequivocal: “Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.”
Margaret Kwoka, a law professor at The Ohio State University and an expert on information law, said in a Tuesday email: “The PRA is not a mandate for a talk or a negotiation with the National Archives, but rather a law that defines presidential records to be public records, not private ones. Presidents are required to maintain presidential records under the law, and the Archivist takes automatic custody of the records at the end of the President’s term in office. The PRA’s requirements are in place precisely to avoid allowing presidents to have discretion over the retention, preservation, and access to presidential records.”
Shannon Bow O’Brien, a professor in the University of Texas at Austin’s government department, says it’s possible Trump has incorrectly latched onto sections of the Presidential Records Act that do not actually apply to his situation.
One section of the law lays out a process of communication between a sitting president and NARA’s chief archivist for instances in which the president wants to dispose of personal records, which are defined as records of “a purely private or nonpublic character” unrelated to the president’s official duties. Another section of the law allows a president, before leaving office, to restrict access to some records (including personnel files and medical files, advice from aides, trade secrets and certain defense information) for up to 12 years – though these records must still be in NARA custody during the temporary restricted period.
Neither of these sections of the act is relevant to Trump’s case, in which, prior to the FBI search in August: 1) an ex-president 2) possessed indisputably official records 3) at his own property, outside of NARA custody and 4) did not return these records even upon repeated NARA requests and a Justice Department subpoena. No part of the act suggests the federal government was supposed to continue engaging in “talk, talk, talk” with Trump in these circumstances.
“I guess the most polite thing,” O’Brien said, “would be: the former president is deeply confused and fundamentally does not understand.”
