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The laws around presidential records are complex and murky

DON GONYEA, HOST:

This is a story about presidential records and about what happens to them - or rather, what's supposed to happen to them. First, some recent history. In 2018, then-President Trump was accused of ripping up memos into confetti. Federal employees then had to tape them back together. Then there are the 15 boxes of White House material recently discovered at Trump's Mar-a-Lago resort in Florida. And there's the allegation in a new book that President Trump clogged the White House toilet with documents he tried to flush. All of this appears to run afoul of the 1978 Presidential Records Act. And joining me now to discuss the importance of presidential archives is James Grossman, executive director of the American Historical Association.

Welcome.

JAMES GROSSMAN: Thank you.

GONYEA: What documents are required to be saved?

GROSSMAN: All documents are required to be saved by the White House unless the president consults with the archivist of the United States. There are obviously personal things that don't come under the purview of the Presidential Records Act, but it's basically everything that's part of the work life of the president of the United States. And these records obviously belong to the American people.

GONYEA: I understand the big things, why we would want to see documents that were created as the Obama administration worked on the Affordable Care Act or the auto bailout or whatever. But what about those things that might appear to the average person to be truly trivial? Because that is covered under this act.

GROSSMAN: It is. And quite frankly, you never know what's going to get grabbed by the media and by historians as kind of a whoa, they really thought that? The point here is that everything must be kept.

GONYEA: We need to state here that the former president has denied that he flushed papers down the toilet. And aides said there was no, quote, "nefarious intent in shipping those boxes to Florida." Is it plausible that the former president simply was not aware of the seriousness of such things?

GROSSMAN: It's one thing for a private business person to do this sort of thing in their darkened basement or in their corner office. But there are rules here, and he was in violation of those rules. So no, I don't think it's plausible that he didn't know what he was doing.

GONYEA: You and others have written that the Presidential Records Act lacks teeth. If records are destroyed, are there other statutes that come into play?

GROSSMAN: It depends on what's destroyed. If there's a certain level of classification, for example, that the Justice Department can get called in if classified records are destroyed, not just destroyed but removed. You can't just walk away with classified records. And when it was determined that these 15 boxes included classified materials, that changed the game a little bit because my understanding - and I'm not a lawyer - is that the archivist is actually obligated to inform the Justice Department if classified records have been removed.

GONYEA: After 44 years, how would you rewrite or tweak the 1978 Presidential Records Act?

GROSSMAN: One of the things I would do would be to make it clearer that the president is obligated to preserve these records. So right now it says that the president is required to take all such steps as may be necessary. That's kind of wimpy. But if you say the president is required to make records and preserve records, you would have something that is clearer about what the obligations are. And then you also - I think the act needs to be changed to have an enforcement mechanism.

GONYEA: James Grossman of the American Historical Association, thank you for the time. Thank you for explaining this.

GROSSMAN: Thank you for a good conversation. Transcript provided by NPR, Copyright NPR.