Analysis | Trump sees the Presidential Records Act as his ace. It isn’t.

— Former president Donald Trump, remarks after his arraignment, April 4

We had written a quick fact check on 10 of Trump’s statements after he was arraigned in Manhattan on criminal charges related to his role in hush money payments to an adult-film star and a Playboy model. But it seems worthy to do a deeper dive into the statement he made about what he calls the “boxes hoax” — the investigation into classified documents recovered from his Mar-a-Lago estate in Florida. Trump’s argument is one he makes often in interviews and speeches.

Under Trump’s version of reality, the Presidential Records Act (PRA) is an all-purpose security blanket from prosecution for holding onto the documents that NARA says belong to the American people. He suggests that the law gives him unique status to negotiate over which documents he can keep — and that he has acted no differently from any other occupant of the Oval Office.

The PRA was passed in 1978 after a struggle between Congress and former president Richard M. Nixon over his effort to keep control over millions of documents and White House tapes that exposed the Watergate affair. In particular, he wanted to retain the right to one day destroy the recordings.

Before Nixon, presidential records had been considered private property. Some presidents, such as George Washington, Thomas Jefferson and John Adams, were considered good record-keepers. But many important collections were lost, either through carelessness by heirs or deliberate burning of incriminating documents by presidents or close relatives. Chester A. Arthur, Martin Van Buren and the wife of Warren G. Harding destroyed all or many papers, according to a 1977 congressional report.

That changed after the PRA was passed and began to apply to White House materials starting in 1981. No longer could a president claim presidential papers were his private property, to do with as he pleased. Instead, “complete ownership, possession, and control” would rest with the public once the president left office. The law defines “presidential records” as documentary materials received by the president, his immediate staff or members of the executive office “to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

Trump ended up taking many boxes of records, some of which contained highly classified documents, and kept them on his property, outside the custody of the U.S. government. After NARA discovered documents were missing and sought their return beginning in 2021, Trump returned some records and appeared to have retained others — leading to the FBI obtaining a court-approved search warrant of Mar-a-Lago last year that yielded 13 boxes in which even more classified documents were found.

So why does Trump claim he can still negotiate with NARA over which papers belong to him personally?

Trump, and his legal team in court filings, is cherry-picking a provision of the law that says that while he is president, he can engage with NARA about whether records need to be retained or are personal in nature.

Under the PRA, a president has a lot of leeway to deem something a presidential paper while he is president. But the possibility of such give-and-take ended when the clock struck noon on Jan. 20, 2021. “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,” the law says.

The PRA “was enacted to address precisely the abuses of office leading to President Nixon’s resignation,” Margaret B. Kwoka, a law professor at Ohio State University, said in an email. “It unequivocally changed the legal ownership of presidential records from private to public. And it charged the National Archives with administering the provisions. The law is not a mandate for cooperation or negotiation, but rather a law that requires public preservation of presidential records and defines those records with precision.”

If personal records end up with NARA, then a former president could seek their return. “Archives does not negotiate with the president,” said Shannon Bow O’Brien, a government professor at the University of Texas at Austin. “Rather, as I understand it, former presidents ask for personal items to be returned from Archives. The Trump team is intentionally changing directionality of the arrow to make their argument.”

Kwoka noted that because previous presidents complied with the law, there has been very little judicial interpretation of the PRA. “Judicial review of whether a record is presidential versus personal is largely uncharted territory,” she said. “The former president has argued that that question is completely unreviewable — that such a designation is entirely within the discretion of the president — and the truth is we do not have a judicial decision squarely addressing that matter.”

In a March 27 interview with Sean Hannity of Fox News, Trump referenced the PRA and noted that Nixon had received $18 million for his documents. “I have the right to take stuff. I have the right to look at stuff,” he said. “But they have the right to talk, and we have the right to talk.”

The Nixon case, of course, predated passage of the PRA. Nixon sued for compensation after the Supreme Court ruled in 1977 that he couldn’t keep his records. The case dragged on for years and was settled for $18 million in 2000, six years after Nixon died. Virtually all of the money went to Nixon’s lawyers, Nixon’s presidential library and to pay taxes; less than $90,000 went to Nixon’s family, according to a news report at the time.

To bolster his case, at various times Trump has made references to previous presidents that mix authentic details and fiction to create misinformation.

• George W. Bush “took millions and millions of documents to a former bowling alley pieced together with what was then an old and broken Chinese restaurant” and that there was “no security.” In reality, NARA, not Bush, held documents in an old bowling alley and the kitchen of a Chinese restaurant while Bush’s presidential library was being built. The Associated Press reported: “Uniformed guards patrol the premises. There are closed-circuit television monitors and sophisticated electronic detectors along walls and doors. Some printed material is classified and will remain so for years; it is open only to those with top-secret clearances.”
• Bill Clinton “kept classified recordings in his sock” and “took millions of documents from the White House to a former car dealership in Arkansas.” Trump is referring to tapes of Clinton’s conversations with author Taylor Branch to help create an oral history of his presidency, which he kept in a sock drawer during his presidency. NARA determined that these were personal records, which are also defined under the law. NARA leased a former Oldsmobile dealership in Little Rock to house records while the Clinton library was built.
• George W. Bush “stored 68 million pages in a warehouse in Texas” and “lost 22 million White House emails covering the Iraq invasion.” Again, NARA leased space while the presidential library was being built. The missing emails were recovered.
• Barack Obama “kept 33 million pages of documents, much of them classified.” NARA has control of these documents — not Obama — and keeps 30 million unclassified documents in the Chicago area and classified records in the Washington facility.

An interesting wrinkle is that, for all of Trump’s focus on the PRA, there is another law at play here — the Federal Records Act. The PRA does not have a criminal enforcement provision. But a 2012 ruling by Judge Amy Berman Jackson — rejecting a lawsuit by a conservative group that Clinton’s sock-drawer tapes should be part of the Archives — said that the FRA grants NARA the authority to initiate “action through the Attorney General for the recovery of records wrongfully removed and for other redress provided by law.”

In other words, NARA cannot act alone, but must work with the Justice Department.

That’s what NARA did when it concluded Trump had not returned all of the records sought by the agency. The case eventually moved beyond a possible failure to comply with the PRA — or even whether the documents Trump kept were classified.

The FBI’s search warrant cited statutes related to three possible offenses: one, willfully retaining national defense information and failing to deliver it to the proper official; two, willfully and unlawfully concealing or removing a document filed with a public officer of the United States; and three, criminal violation of laws regarding the destruction of evidence in obstruction of certain federal investigations or proceedings. During the Iran-contra affair, former White House aide Oliver North’s assertion that the second statute did not cover presidential records was rejected by a court.

Some of the documents possibly in Trump’s possession, such as those related to the 2016 FBI probe of potential links between the Trump campaign and Russian individuals, might not even qualify as presidential records, as defined by the PRA. They would be regarded as agency records, thus falling under the Federal Records Act, which says they should remain with the agency. That could make it difficult for Trump to claim, after he left office, that these are personal records that he can keep for himself.

A Trump campaign spokesman did not respond to a request for comment.

Trump cooks up a deceiving stew of half-truths in a misleading effort to suggest that the PRA protects him from prosecution and gives him the right to haggle over whether he can retain presidential documents at his home. NARA is able to enlist the help of the Justice Department to demand return of the documents under another law — and, in any case, the possible criminal case against Trump does not hinge on the PRA at all. That law gives a president leeway to determine whether documents are presidential in nature before he leaves office — but not after he is no longer president.

As is often the case with Trump, he’s venturing where no recent occupant of the White House has tried to go. The sparse judicial review of the PRA gives him an opening to suggest he has a stronger case than many legal experts believe. But don’t be fooled — in sum, this is a Four Pinocchio claim.

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