When President Trump leaves office, the public record of his time in office might the worst of any modern president. This has nothing to do with his policies, the economy, or anything else you might use to decide whether he was a “good” or “bad” president. Instead, Trump’s administration may become a lost presidency because the records and documents that would be used to provide clear and accurate accounts of it will not exist. Weak law regulating presidential record-keeping, mutual distrust in the new administration, and changes in technology seem to be undermining standards that all Presidents have followed since the late 1970s. But the public – regardless of party or opinion about the President – has good reasons to want this fixed, quickly.
By law, the government owns records produced by presidents and their staff while in office (44 U.S.C 2202). The President is required to preserve all internal documents relating to their presidency until leaving office, when those records are given to the National Archives. Presidents cannot destroy these records unless they obtain the approval of the Archives. This includes, for example: drafts of executive orders, internal discussions of proposed policies, White house visitor logs – and yes, emails.
Despite the law, there is already evidence that records of this presidency are being lost or destroyed. This goes beyond President Trump deleting tweets. There are reports White House officials (and others) are using private email accounts and Confide (an encrypted, self destructing message app) to conduct official business. This is illegal. Donald McGahn, White House Counsel and former Trump campaign lawyer, has yet to produce evidence (requested by Senator Tom Carper) that the administration is complying with the law.
I have yet to see evidence that this is the result of some conspiracy by the White House to “cover its tracks.” A more straightforward explanation is simple enough: The administration entered office with Trump officials competing for power and attempting to root out leaks while changing the way the presidential branch conducted business. Some officials fear retaliation for expressing dissent – so deleting any record of it makes sense.
Unfortunately, in contemporary American politics, that it is against the law is not enough to compel the executive branch to comply. Someone has to enforce the rules. The problem is that there is no obvious way to do so. If I wanted to enforce it, I would have to prove that I’ve been harmed. No judge would buy that argument. For the Department of Justice to enforce it, we would have to believe that Jeff Sessions is willing to prosecute his own president (and likely, his former aide, Steve Miller). For Congress to enforce it (by investigation or otherwise), we have to believe Republicans in Congress would we willing to generate scandal for their president. If they are unwilling to investigate Russian interference in the election for fear of ensnaring President Trump, they won’t investigate this.
Even worse, violations of this act (the destruction of documents) are, for obvious reasons, difficult to track. And they will only come to light after the fact – which means there is no real remedy that could be imposed by court. So, if the administration complies with the law, it will likely do so voluntarily. I can think of one obvious reason they ought to:
President Trump does not like most media accounts of his presidency. His supporters mostly agree that he is being treated unfairly. It might be that no human being has ever garnered more media attention than Donald Trump. I doubt the charges of negative media bias will go away. The sad irony is that Trump himself – whether he knows it or not – may be destroying the documentation that would provide an accurate, non-partisan account. Decades from now, scholars may have to rely most on the reporting of the news organizations President Trump hates to tell the story of his administration.