In November of 2020, just days after Joe Biden won the Presidential election, Jill Lepore, a staff writer at The New Yorker and a historian at Harvard, wrote an essay for the magazine, titled “Will Trump Burn the Evidence?” It considered the possibility that, when Trump left office, government archivists would discover that official documents were missing. At the time, Lepore was worried that Trump would try to hide evidence of malfeasance, scrubbing the record of his Administration’s actions in order to make it difficult for historians to piece the story together later. But the past few months have brought a different set of revelations. It is now clear that Trump did take records with him, records that allegedly range from what Lepore was concerned about—personal letters and correspondence, the kinds of things that historians might find invaluable—to classified documents containing national-defense information.
According to an indictment that was filed in the U.S. District Court for the Southern District of Florida, Trump shared materials concerning a U.S. “plan of attack” with a group of people at his golf club in Bedminster, New Jersey, in the summer of 2021. He was recorded telling the group, “This is secret information,” and that, when he was President, he “could have declassified it,” but now he could not. In another incident at the same club, Trump showed a classified military map to a staffer at his political-action committee. This past Tuesday, Trump was arraigned, in Miami, on thirty-seven felony counts, including violations of the Espionage Act and obstruction of justice. Prosecutors allege that the former President went out of his way to hide the classified documents in his possession, even after a grand jury issued a subpoena demanding their return. (When Trump’s former lawyer Evan Corcoran assembled a folder containing thirty-eight classified records found at Mar-a-Lago, Trump reportedly made a gesture indicating that Corcoran should “pluck” any papers that were “bad.”)
This is the first time that a former President has faced federal charges, but it is not the first time that a former public official has been caught retaining or mishandling classified documents. Trump has been quick to remind the public of Hillary Clinton’s and Joe Biden’s documents scandals. But there is also a long history of former Presidents hiding or burning their Administrations’ papers after exiting office. As Lepore wrote in 2020, Grover Cleveland insisted that the records of his Presidency were his personal property, and, when the Senate demanded that he turn them over, in 1886, he refused to do so. (“If I saw fit to destroy them no one could complain,” Cleveland said.) Lepore has also written about Presidential misconduct more generally—the kinds of crimes, ranging from election interference to selling national-security secrets, that Presidents and the people in their orbit have engaged in while in office. When I spoke with Lepore on The Political Scene, The New Yorker’s politics podcast, earlier this week, she told me that, in the wake of these historic felony charges against the former President, she finds herself confronting a question that she was asked repeatedly during Trump’s Presidency: Is this worse than everything we’ve seen before? The short answer is yes, but it’s complicated. Our conversation has been edited for clarity.
You once asked the question “Will Trump burn the evidence?” And now we sort of have an answer to that. How do the recent revelations compare with what you were expecting?
I, like everyone else, read that indictment with great fascination. Partly, it’s just so Keystone Cops. I couldn’t possibly have anticipated that. And the photograph of the boxes in the glitzy shower beneath the glass chandelier—it’s cockamamie, right?
I wrote the [2020] piece because everybody was thinking about what would happen to Trump in the post-Presidency. This was before there was really a sense that his contestation of the election results would go for so long. So my concern was just this kind of narrow question of, if anyone ever wants to find out what he did as President, it seemed to me it would be difficult to do, because there was no reason to believe that he would abide by the Presidential Records Act, which is the federal legislation that decrees that his papers are not his personal property. And Trump thinks everything is personal property. So I was just worried kind of narrowly about that.
At what point did we decide that these records do not belong to the President, and that they belong to us, the United States?
The Presidential Records Act is a post-Watergate thing. Interestingly—I had written about this years ago—there’s no such provision for [Supreme Court Justices]. So Supreme Court Justices’ papers are their personal property still, the way it used to be for the President, before Nixon.
Wow, lifetime tenure and the right to your papers. It seems like that’s the job to have.
You know, I think there are arguments about why that’s a good thing—why that’s right, and why that’s in the interest of justice. And there are real criticisms to be made, even, about the Presidential Records Act. That kind of radical transparency, in some ways, impedes people’s ability to govern. But the Presidential Records Act dates to 1978. There was a huge battle between Congress and the executive branch over Nixon’s tapes, which resulted in the Presidential Records Act, which said what you produce as President is just not your personal papers. But it’s been contested and mostly evaded, because it’s almost impossible to enforce.
What did Presidents do with their records before we had protocols?
When George Washington was inaugurated in 1789, there were monarchs reigning all over Europe. There was no sense that the papers of the executive belonged to the people. . . . Picture an eighteenth-century desk with all the little cubbies. People had all kinds of ways to keep their papers, because you don’t have, like, spotlight search, right? And someone like Washington did, in fact, have careful records. But they were useful to you while you were in office. So when you left office, really the only operative question was, how would these documents inform my legacy? What is the use of these documents for history? And then you would make the decision, as many often did, of “I’ll just burn it all.” So when we go through the records of past Presidents, a lot of them are, like, “My daughter started the fire in the back yard” or “We got two garbage bins.” There are just these crazy tales. “We put them in a box in the attic. But then I told my mistress she would have to destroy them.” It looks like chicanery, but on the other hand it wasn’t illegal. There was nothing saying you can’t do this. And people who weren’t Presidents did this all the time. Kafka wanted his papers burned.
People love destroying their papers. If I had papers, I would probably destroy them, too.
Exactly. Like, I compulsively delete my e-mail. I can’t stand the idea that e-mail exists. So as private individuals, in an age of paper, people were pretty used to deliberately burning their papers. But also papers burned all the time; everyone’s got fires in their houses.
Also, for a long time, there wasn’t any other real option. There was no National Archives until the nineteen-thirties. There really was no official government way that Congress was involved, which would have had to legislate such a thing in preserving the papers of the executive branch or even of the legislative branch. There was a Library of Congress, but it didn’t have an archive. It’s really not until the eighteen-eighties, when the American historical profession is becoming a profession, that these professors of American history start saying, “We would like to keep these papers.”
It seems like a really tough battle to get the most powerful person in the United States to hand over their stuff. It’s cool that the historians won.
Yeah, well, they did, but I think most historians would say it was kind of a partial victory. A number of [archivists] said—and I just do think this is quite true—that before Presidents were required to turn their papers over to the National Archives, people were more frank on paper. You just kind of picture the West Wing vibe [now] is, like, whatever you do, don’t write it down. We’ll just go for a walk and talk, and I’m not going to send you a memo about this because a memo is discoverable. But our conversation isn’t, unless one of us writes it down in a diary—which, whatever you do, don’t keep a diary if you’re working in the White House.
