Simply put, the Presidential Records Act was not written with classified information in mind.
On Feb. 5, Special Counsel Robert Hur filed his completed report regarding his investigation into the discovery of classified records at President Biden’s Delaware home, the Penn Biden Center in Washington, and the University of Delaware. Former President Trump is currently being prosecuted for illegally retaining classified records at his Mar-a-Lago resort. Former Vice President Pence was also investigated in early 2023 after classified records were discovered at his Indiana home, though no charges were filed. Many experts have explained the differences between the cases, but it is equally important to also point out the key similarities, and why those similarities warrant congressional attention sooner rather than later.
Simply put, the Presidential Records Act (PRA) was not written with classified information in mind. The PRA affords an enormous amount of discretion to presidents and vice presidents to decide what records they want to designate as “presidential records”—which have to be turned over to the National Archives at the end of a term—and “personal records”—which can be taken home. Such discretion means the PRA regime is, at its core, an honor system. While much can—and has been—written about this weakness, Congress rarely takes much of an interest because of the perception that the rest of the legal system does an adequate, if imperfect and slow, job of addressing any issues.
D.C. District Judge Amy Berman Jackson held in 2012 that the National Archives arguably has the authority to take measures to reclaim any improperly retained presidential records, even if private citizens cannot force it to. However, she also implied that the Archives may not have sufficient authority to second-guess a decision made by a president that something is a personal record, observing that “the PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records [as presidential or personal]. Under the statute, this responsibility is left solely to the President.”
This perceived ambiguity is the core precept in one of former President Trump’s motions to dismiss his Espionage Act case filed Feb. 22, in which he argues, as expected, that his right to designate personal records—even if they are classified—simply cannot be questioned (heavily relying on the history of the Reagan diaries discussed below). But just last week, Judge Colleen Kollar-Kotelly reemphasized in the PRA case over former White House adviser Peter Navarro’s refusal to return records to the National Archives that “the mere fact that the material is a journal entry does not mean it is a personal record, particularly as the journal entries include work-related topics,” even when the person (in this case admittedly not a former president or vice president) claims that something is a personal record.
Wherever one may fall on the “personal records” question, this muddled legal landscape does not solve the actual national security problem presently cropping up in various homes of former White House occupants. One is an abstract question of public records law and the other is a specific question of counterintelligence risk. And Congress desperately needs to address the counterintelligence problem, regardless of whether it revists the legal question.
The Hur report even spent an entire chapter (Chapter 10) discussing the long history of presidents taking classified information home after deeming it part of a personal record. The report discussed extensively one of the most representative examples, in which former President Reagan retained diaries containing “top secret/sensitive compartmented information” at his private home for 19 years—with the full knowledge of the Department of Justice, the White House, and Congress—and that some of that information remains classified to this day. The point of this historical exercise was to highlight the fact that, when President Biden argues that the notecards and notebooks containing classified information are his personal records that he was allowed to take home because “everyone does it,” he is stating a commonly held belief among presidents and vice presidents that has almost never been challenged. His attorney Bob Bauer even highlighted this claim in Lawfare, arguing that “the law expressly permits presidents and vice presidents to keep their personal notes and notebooks, even if they contain classified information.”
However, while the key harm of presidents and vice presidents improperly taking home presidential records, period, is the loss of those records to posterity, that harm (which I do not mean to minimize in any way) pales in comparison to the harm of classified information being taken outside the control of the federal government that occurs in cases like these. That critical distinction transforms the problem from a recordkeeping problem to a counterintelligence problem. The very fact that information is classified legally means that, by definition, its disclosure can be expected to cause damage to national security. For top secret information, disclosure can be expected to cause “exceptionally grave damage.” This does not mean that information is not routinely overclassified for a variety of reasons—some political and some not. But overclassification does not change the fact that the officials put in charge of those decisions made them, and until the classification system is completely overhauled, we are legally required to accept their determinations. That is a question for another day (which should, to be clear, be answered).
This is why even retaining classified information in your home without ever disseminating it further warrants criminal prosecution (interestingly enough, in that case by Robert Hur) if one is not a former president or vice president. This is the main reason why former President Trump was criminally prosecuted: not for taking the classified records or disseminating them, but for retaining them after the National Archives and Department of Justice informed him that he could not. This is also why, when President Biden’s staff first learned of classified information being stored at the Penn Biden Center, they immediately informed the National Archives and commenced an in-depth search for any other classified information, and why former Vice President Pence’s staff did the same thing after the Biden news broke.
However, the reason that retention without dissemination is still prosecuted is because of the inherent risk to national security of classified information being in the wild, outside of government control. The fact that the person in question does not intend to give the information to another person has no bearing on the chances that another person might decide to take it for themselves from the unsecured location. This risk is lessened, but not fully mitigated, when the location retains a Secret Service presence, but a lessened risk is still an unacceptable risk in the eyes of the intelligence community.
Therefore, if presidents and vice presidents will not abstain from taking home classified information, even in “personal records,” Congress needs to take the choice out of their hands, just as it did when it made presidential records the government’s property in the first place. The executive branch would likely oppose such a statute if it were too intrusive into a president’s perceived constitutional prerogatives, but there are minimally intrusive options available that would respect the deference currently present in the PRA, while still protecting against unintentional or benign retention. The option I prefer was first articulated (to my knowledge) as a statute requiring the simple inclusion at some time during the transition process of “what amounts to a counterintelligence filter team … to go through the documents and make sure that a former president or vice-president isn’t leaving with something that they shouldn’t.” Fleshing out this idea, the “transition classified information filter team” would have as its sole mission identifying any classified information being taken out of government custody by the outgoing administration, much as any manuscript written by a current or former intelligence official would be reviewed for publication. Contrary to normal usage, “publication” in such matters simply means doing anything with the information outside of the government’s control, from publishing a book to writing a letter to a friend to placing a “note to self” in a personal desk in case it is ever needed. Taking a record home, even a “personal” one, definitely fits the bill.
While it would likely be infeasible to perform this review before Inauguration Day, there would be little harm in creating a holding area for any records members of the outgoing administration wanted to take home as personal records. We are probably not talking thousands of pages (although that may not be a completely safe assumption in the age of electronic correspondence), and review by a dedicated team would likely take only a few months to a year. And if all the team does is identify classified information to the former official and the National Archives, that would likely solve most of the issues. If the former official did not mean to take it home, they can sign off on its return, and if they still insist on taking it home, then they are on notice that that course of action will satisfy the “willfully retaining” element of the Espionage Act, which will make it that much easier to prosecute them should the Department of Justice see fit to do so.
Either way, it solves the problem. Either the information is not taken out of government custody, or the government knows about it before it happens and can act quickly to stop it if appropriate. It does not create any new rights; it does not impose any new penalties; and, most importantly, it does not affect any existing rights—it just makes sure that when classified information is involved, the government knows where it is.
In 1983, Air Force Staff Sgt. Arthur Gaffney was prosecuted for disposing of classified material in an unclassified dumpster. When that is the standard for criminal prosecution for removing any classified material from the government’s control, making sure that boxes of papers containing secrets personally known by the president and vice president are checked for classified information once every four years is literally the least Congress can do.
– Kel B. McClanahan, published courtesy of Lawfare.
