Presidential Records Act: Provisions and Application

The Presidential Records Act (PRA) is a post-Watergate federal law that relates to the retention of government documents by the National Archives and Records Administration (NARA). The PRA requires that all official documents and other material or information a president or a vice president may have generated or obtained while in office belong to the American people, and thus must go to NARA for preservation. 

History and Intent

For the first two centuries of U.S. history, the materials and documents of the presidents were considered their personal property. Outgoing presidents simply took their documents home with them when they left the White House.

According to Lindsay Chervinsky, the author of The Cabinet: George Washington and the Creation of an American Institution, “Early on, presidents like John Adams and Thomas Jefferson were very attuned to their place in history and their legacy. And so they were very thoughtful about maintaining their documents, cataloging their documents, and then, of course, sort of making sure that what remained was what they wanted to remain. So that also includes some erasure.”

In 1950, the Federal Records Act required the federal agencies—but not the presidents—to preserve their papers. In 1955, Congress passed the Presidential Libraries Act, which encouraged, but did not require presidents to donate their records to private libraries so that they could be made available to the general public. The law tracked the norm that President Franklin Roosevelt started when he opened his presidential library in 1941 and eventually donated his papers. 

But since 1978, all presidential documents—from offhand sticky-pad notes to top-secret national security plans—are supposed to go directly to the National Archives as the material is defined by the PRA to be the property of the American people. This includes documents and records transferred to the presidential libraries and museums, NARA’s repositories for the papers, records, and historical materials of the presidents.

According to the NARA website, the PRA “changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations.” 

The Watergate Effect

The easy-going days of outgoing presidents simply taking their documents home with them were forever changed by one infamous event—Watergate.

When President Richard Nixon resigned amid the 1974 scandal stemming from his attempts to cover up his involvement in the June 1972 break-in of the Democratic National Committee headquarters, he wanted to take his documents to his home in California—including his infamous Oval Office secret tape recordings.

Realizing that it would not have access to that material, and fearing it might be destroyed during its ongoing investigation, Congress passed the Presidential Recordings and Materials Preservation Act, which made all of Nixon's material public property. The Act was signed into law by President Gerald Ford on December 19, 1974. 

However, that law applied only to Nixon. That act specifically prohibited Nixon from destroying the Watergate tapes, and further specified that:

“[n]otwithstanding any other law or any agreement, the [General Services] Administrator shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.” 

Nixon challenged the Presidential Recordings and Materials Preservation Act. In doing so, he put forth a separation of powers argument, as well as executive privilege, privacy, First Amendment, and Bill of Attainder arguments. The Supreme Court rejected Nixon’s challenge in the 1977 case of Nixon v. Administrator of General Services. 

The court’s reasoning in denying Nixon’s separation of powers argument played an important role in both how Congress designed the PRA and in how the courts construed subsequent enforcement of the PRA. The court held that the act would present separation of powers problems only if it prevented the executive branch from accomplishing its constitutionally assigned functions. In doing so, the court further held that seizing and examining records related to a former president that is still within the control of the executive branch does not hinder the separation of powers. In summary, the court stated that the Presidential Recordings and Materials Preservation Act ensured that “[t]he Executive Branch remain[ed] in full control of the presidential materials, and the Act … was designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch.”

Following the Supreme Court’s decision in Nixon v. Administrator of General Services, Congress enacted the more comprehensive Presidential Records Act in 1978 to avoid future debacles over presidential records. 

Key Provisions of the PRA

The PRA, which is codified into the U.S. Code at 44 U.S.C. §§ 2201, largely mirrors the Presidential Recordings and Materials Preservation Act. It also accommodates Nixon’s separation of powers argument by placing primary authority for real-time enforcement of the law in the hands of the executive branch and providing for the transfer of custody and restricted disclosure after a president leaves office. The key provisions of the PRA are as follows.

Public Ownership: The PRA provides that the United States owns all “Presidential records.” 

Preservation of Presidential Records During a President’s Tenure: The PRA tracks the Presidential Recordings and Materials Preservation Act and the Supreme Court’s decision in Administrator of General Services by making the president responsible for identifying and preserving presidential records during the administration’s tenure. It further requires the president to take “all such steps as may be necessary” to preserve PRA records. 

Destruction of Presidential Records During a President’s Tenure: The law allows the president to dispose of records that the president determines “no longer have administrative, historical, informational, or evidentiary value.” Before the president may do so, however, the PRA requires the president to first obtain the views of the archivist of the National Archives and Records Administration, and the archivist signs off on the destruction. If the archivist agrees with the president’s assessment, the president may destroy valueless presidential records. If the archivist does not agree, the law requires the president to provide a disposal schedule to “the appropriate Congressional Committees” 60 days in advance of destroying the records. In turn, the PRA requires the archivist to request the advice of the Committee on Homeland Security and Governmental Affairs and the Committee on House Oversight, and the Committee on Oversight and Reform. 

Transfer of Custody: After a president’s term of office, the PRA provides for the transfer, control, and custody of presidential records from the president to the archivist, who must deposit the records in an archive. 

Restricted Access Periods: The former president is empowered to direct that six categories of information be kept secret for up to 12 years. The remaining records must be kept secret for a minimum of 5 years. The law provides several exceptions to the restricted access periods, including for the disclosure of records according to a subpoena, to an incumbent president and either house of Congress.

Subsequent Disclosure Governed by FOIA: Following the restricted access periods, the PRA provides that records are treated as agency records of NARA, subject to disclosure under the Freedom of Information Act (FOIA). However, the law provides that FOIA’s exemption for records implicating the deliberative process privilege, which ordinarily includes a subset of records implicating executive privilege, may not be used as a basis to withhold presidential records following the PRA’s mandatory restricted access periods. 

In short, the PRA makes it a federal felony to, among other things, conceal, remove, mutilate, obliterate, or destroy any record that belongs to the United States. Potential punishments for willful violations of the PRA include fines or up to three years in prison, and disqualification from holding any public office in the future.

The PRA’s origins and provisions underscore the significant interests it protects. The law reflects the inherent value of being able to comprehensively and truthfully chronicle history and, specifically, the history of the U.S. presidency. But it also stands as an important guardrail against abuses of presidential power. In requiring presidents to preserve their records, the PRA protects the ability of congressional and other investigators, including the inspectors general, and law enforcement, to investigate wrongdoing and hold individuals to account. The statute also implicates national security interests, protecting the ability of an incoming administration to understand the actions of its predecessor and operate with full awareness of the state of play in the world.

Former Presidents and the PRA 

With a few notable exceptions, such as Nixon, and most recently Donald Trump, outgoing presidents have been described by historians as very cooperative with the PRA records retention process. 

President Ronald Reagan sought to shield email records reflecting his role in the 1986 Iran-contra arms deal scandal, and George H.W. Bush’s administration destroyed telephone logs and email records that were relevant to an ongoing congressional investigation into whether Bush had illegally ordered

There have also been a few cases involving former presidential aides. In one instance, Sandy Berger, who had served as the national security adviser to President Bill Clinton, was fined $50,000 for smuggling classified documents out of the National Archives in his socks and pants. 

Donald Trump

Former President Trump’s problems with the PRA began in January 2022, when The Washington Post reported that he routinely “tore up briefings and schedules, articles and letters, memos both sensitive and mundane” in violation of the Presidential Records Act (PRA).

These records included information of particular importance to the Jan. 6 committee’s ongoing investigation related to Trump’s efforts to pressure Vice President Pence to overturn the results of the 2020 presidential election.

But some records, both paper and electronic, were being kept at Trump's Mar-a-Lago resort in Palm Beach, Fla. In January 2022, NARA officials, with the former president’s cooperation, removed 15 boxes worth of documents from Trump’s residence.

On August 8, 2022, the FBI, as authorized by the Department of Justice, executed a search warrant on Trump’s Mar-a-Lago residence prompting the former president to issue a statement that read, "These are dark times for our Nation, as my beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents. Nothing like this has ever happened to a President of the United States before."

Attorney General Merrick Garland said that he had approved the request for a search warrant after evidence was presented to a federal judge, who signed off on a court order approving the search.

In conducting the search, the FBI seized 20 additional boxes of government materials, including classified and “top secret” documents.

On August 18, 2022, U.S. Magistrate Judge Bruce Reinhart released the contents of several procedural court documents related to the FBI's search at Mar-a-Lago. The documents detailed that 20 boxes of materials were removed, along with “various” classified materials; miscellaneous secret, top secret, and confidential documents; photos; and handwritten notes regarding Trump’s December 23, 2020 pardon of his longtime friend and campaign consultant Roger Stone, and “info re: President of France,” Emmanuel Macron.

In addition, one set of the top secret documents was labeled "sensitive compartmented information." Sometimes called “Above Top Secret,” sensitive compartmented information (SCI) is considered so sensitive to national security that even those with a top-secret security clearance wouldn't be able to see it unless they had a proven need to know. All SCI must be processed, stored, used, or discussed in a sensitive compartmented information facility. For example, no cellphones or other electronic devices are allowed inside rooms where SCI is stored. 

The unsealed documents showed that Judge Reinhart had based his approval of the search warrant on two requirements of the Federal Rules of Criminal Procedure: “evidence of a crime” and the presence of “contraband, fruits of a crime, or other items illegally possessed.”

An attachment to the unsealed documents also noted federal investigators had been authorized to seize any items that were “illegally possessed in violation of” three federal statutes, which include the Espionage Act of 1917. Violations of the Espionage Act are punishable by fines of up to $10,000 and 20 years in prison to the death penalty in some cases.

As of September 2022, the investigation and legal proceedings are ongoing.

Sources

• “Presidential Records (44 U.S.C. Chapter 22).” National Archives, August 15, 2016, https://www.archives.gov/about/laws/presidential-records.html.
• Chervinsky, Lindsay. “The Cabinet: George Washington and the Creation of an American Institution.” Belknap Press (April 7, 2020), ISBN-10: ‎0674986482.
• Myre, Greg. “The reason why presidents can't keep their White House records dates back to Nixon.” NPR: National Security, August 13, 2022, https://www.npr.org/2022/08/13/1117297065/trump-documents-history-national-archives-law-watergate.
• “Further Implementation of the Presidential Records Act: Presidential Documents.” Federal Register, November 5, 2001, https://www.govinfo.gov/content/pkg/FR-2001-11-05/pdf/01-27917.pdf.
• Barrett, Devlin. “Agents at Trump's Mar-a-Lago seized 11 sets of classified documents, court filing shows.” The Washington Post, August 12, 2022. https://www.washingtonpost.com/national-security/2022/08/12/trump-warrant-release/.
• Barrett, Devlin. “FBI searched Trump's home to look for nuclear documents and other items, sources say.”  The Washington Post, August 12, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/.
• Haberman, Maggie. “Files Seized From Trump Are Part of Espionage Act Inquiry.” The New York Times, August 12, 2022. https://www.nytimes.com/2022/08/12/us/trump-espionage-act-laws-fbi.html.