Donald Trump isn’t the first to face criticism for flouting rules and traditions around the safeguarding of sensitive government records, but national security experts say recent revelations point to an unprecedented disregard of post-presidency norms established after the Watergate era.
Document dramas have cropped up from time to time over the years.
Democrat Lyndon B. Johnson’s national security adviser held onto explosive records for years before turning them over to the Johnson presidential library. The records showed that the campaign of his successor, Richard Nixon, was secretly communicating in the final days of the 1968 presidential race with the South Vietnamese government in an effort to delay the opening of peace talks to end the Vietnam War.
A secretary in Ronald Reagan’s administration, Fawn Hall, testified that she altered and helped shred documents related to the Iran-Contra affair to protect Oliver North, her boss at the White House National Security Council.
Barack Obama’s CIA director, David Petraeus, was forced to resign and pleaded guilty to a federal misdemeanor for sharing classified material with a biographer with whom he was having an affair. Hillary Clinton, while Obama’s secretary of state, faced FBI scrutiny that extended into her 2016 presidential campaign against Trump for her handling of highly classified material in a private email account. The FBI director recommended no criminal charges but criticized Clinton for her “extremely careless” behavior.
As more details emerge from last month’s FBI search of Trump’s Florida home, the Justice Department has painted a portrait of an indifference for the rules on a scale that some thought inconceivable after establishment of the Presidential Records Act in 1978.
“I cannot think of a historical precedent in which there was even the suspicion that a president or even a high-ranking officer in the administration, with the exception of the Nixon administration, purposely and consciously or even accidentally removing such a sizable volume of papers,” said Richard Immerman, who served as assistant deputy director of national intelligence from 2007 to 2009.
FBI agents who searched Trump’s Mar-a-Lago resort on Aug. 8 found more than 100 documents with classification markings, including 18 marked top secret, 54 secret and 31 confidential, according to court filings. The FBI also identified 184 documents marked as classified in 15 boxes recovered by the National Archives in January, and it received additional classified documents during a June visit to Mar-a-Lago. An additional 10,000 other government records with no classification markings were also found.
That could violate the Presidential Records Act, which says that such records are government property and must be preserved.
That law was enacted after Nixon resigned from office in the midst of the Watergate scandal and sought to destroy hundreds of hours of secretly recorded White House tapes. It established government ownership of presidential records starting with Ronald Reagan.
The act specifies that immediately after a president leaves office, the National Archives and Records Administration takes legal and physical custody of the outgoing administration’s records and begins to work with the incoming White House staff on appropriate records management.
According to the National Archives, records that have no “administrative, historical, informational, or evidentiary value” can be disposed of before obtaining the archivist’s written permission.
Documents have been recovered from Trump’s bedroom, closet, bathroom and storage areas at his Florida resort, which doubles as his home. In June, when Justice Department officials met a Trump lawyer to retrieve records in response to a subpoena, the lawyer handed them documents in a “Redweld envelope, double-wrapped in tape.”
Trump has claimed he declassified all the documents in his possession and had been working in earnest with department officials on returning documents when they conducted the Mar-a-Lago search. During the 2016 campaign, Trump asserted that Clinton’s use of her private email server for sensitive State Department material was disqualifying for her candidacy; chants from his supporters to “lock her up” became a mainstay at his political rallies.
James Trusty, a lawyer for Trump in the records matter, said on Fox News that Trump’s possession of the sensitive government material was equivalent to hanging on to an “overdue library book.”
But Trump’s former attorney general, Bill Barr said, in a separate Fox News interview said that he was “skeptical” of Trump’s claim that he declassified everything. “People say this (raid) was unprecedented — well, it’s also unprecedented for a president to take all this classified information and put them in a country club, OK,” Barr said.
Trump’s attitude about White House records is not so surprising to some who worked for him.
One of Trump’s national security advisers, John Bolton, said briefers quickly learned that Trump often tried to hang onto sensitive documents, and they took steps to make sure documents didn’t go missing. Classified information was tweeted, shared with reporters and adversaries — even found in a White House complex bathroom.
That approach is out of step with how modern-day presidents have operated.
Obama, while writing his White House memoir after leaving office, had paper records he used in his research delivered to him in locked bags from a secure National Archives storage facility and returned them in similar fashion.
Dwight Eisenhower, who left office years before the Presidential Records Act was passed, kept official records secure at Fort Ritchie, Maryland, even though there was no requirement for him to do so.
Neil Eggleston, who served as White House counsel during the final years of the Obama administration, recalled that Fred Fielding, who held the same position in the George W. Bush administration, advised him as he started his new job to hammer home to staff the requirements set in the records act.
Similarly, Trump’s White House counsel, Donald McGahn, sent a staff-wide memo in the first weeks of the administration underscoring “that presidential records are the property of the United States.”
“It’s not a hard concept that documents prepared during the course of our presidential administration are not your personal property or the president’s personal properties,” Eggleston said.
Presidents are not required to obtain security clearances to access intelligence or formally instructed on their responsibilities to safeguard secrets when they leave office, said Larry Pfeiffer, a former CIA officer and senior director of the White House Situation Room.
But guidelines issued by the Office of the Director of National Intelligence, which oversees the intelligence agencies, require that any “sensitive compartmented information” –- some of the highest-value intelligence the U.S. possesses –- be viewed only in secure rooms known as “SCIFs.”
The FBI, in a court filing, this past week included a photo of some of the records that agents discovered in the search of Trump’s estate. The photo showed cover sheets on at least five sets of papers that are marked “TOP SECRET/SCI,” a reference to sensitive compartmented information, as well as a cover sheet labeled “SECRET/SCI” and “Contains sensitive compartmented information.” The FBI also found dozens of empty folders marked classified, with nothing inside and no explanation of what might have been there.
A president can keep reports presented during a briefing for later review. And presidents –- or nominees for president during an election year -– aren’t always briefed in a SCIF, depending on their schedules and locations, Pfeiffer said.
“There’s no intelligence community directive that says how presidents should or shouldn’t be briefed on the materials,” said Pfeiffer, now director of the Michael V. Hayden Center for Intelligence, Policy, and International Security. “We’ve never had to worry about it before.”
People around the president with access to intelligence are trained on intelligence rules on handling classified information and required to follow them. But imposing restrictions on the president would be difficult for intelligence agencies, Pfeiffer said, because “by virtue of being the executive of the executive branch, he sets all the rules with regard to secrecy and classification.”
President Joe Biden told reporters recently that he often reads his top secret Presidential Daily Briefing at his home in Delaware, where he frequently spends his weekends and holidays. But Biden said he takes precautions to make certain the document stays secure.
“I have in my home a cabined-off space that is completely secure,” Biden said.
He added: “I read it. I lock it back up and give it to the military.”