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You can’t take it with you
Not legally, that is
When George Washington left the presidency, he carried his presidential papers home to Mount Vernon with him. No one batted an eye because, first, he was George Washington; second, there was no archive or office in which to leave them; third, the whole lot of them could fit in a trunk; fourth, it didn’t occur to him or anyone else that they would be of general interest; and fifth, the presumption of secrecy that later would give rise to the security classification of presidential papers didn’t yet exist.
After the Library of Congress was established following the move of the government to Washington, D.C., in 1800, departing presidents eventually got in the habit of leaving their papers to that institution. But this was for their convenience rather than as a matter of law. Their papers were considered their personal property, for them to dispose of as they wished. Nobody else wanted the papers, and a distinction continued to be observed between what public officials did on the public clock and what they did on their own time. Presidential messages to Congress, presidential proclamations, presidential communications with foreign leaders: these were deemed to be public documents and typically were published shortly after they were generated. Presidential communication with members of the executive branch typically took place orally, as the executive branch remained very small.
This system sufficed until World War II. The first president to make special provision for his papers was Franklin Roosevelt, who built a small library on his property at Hyde Park, New York, where he intended to use the papers to write his memoirs after retirement. Roosevelt died in office and the memoirs were never written, but the library carried on as he had planned. It became the first presidential library. At Roosevelt’s request, the National Archives, to which he donated his papers, administered the library
Roosevelt was a difficult act to follow in most regards, but not in the matter of presidential records. Every president after Roosevelt made sure to build a presidential library—or rather, his friends put up the money to build the library—and the libraries became repositories for the papers of the president and other records associated with the president’s administration. A 1955 law regularizing this arrangement encouraged presidents to donate their records to the government but did not require them to do so.
In all cases but that of Gerald Ford, the presidential libraries also became monuments to the glory of their namesakes, in the form of presidential museums attached to the libraries. In Ford’s case, the museum is separate from the library, and in a different city—Grand Rapids, Michigan, rather than Ann Arbor.
Two historical changes and one specific event prompted a reconfiguration of the management of presidential records. The first historical change was the enormous expansion of the office of the president. This started with the New Deal, accelerated during World War II, and persisted in the postwar decades. Lincoln had a couple of secretaries and a military aide or two, and that was all; today the executive office of the president has a staff of 1,800. There are simply a great many more records today than in earlier times.
The second historical change was the emergence of the national security state. The Cold War put the government and especially the president on a permanent war footing, and during war secrets are guarded more closely than in peacetime. This was especially true during the nuclear age; in essence, the secretive spirit of the Manhattan Project was stretched to include a huge swath of what the president and his people did. The current system of classification was established in the early 1950s and has been expanded several times since.
The result of this was heightened sensitivity around presidential documents. Each presidential library has a vault in which documents not yet declassified are held, away from public scrutiny. Declassification often takes decades, so the libraries become enormous caves of secrets.
In my own research into postwar presidents I have examined thousands and thousands of declassified documents at presidential libraries. I can say—and I am confident that my professional colleagues agree—that the great majority of these documents should either never have been classified or could have been declassified much sooner than they were, with no harm to national security. Classification has more to do with avoiding embarrassment than protecting national secrets. Bureaucracies have their incentives and dynamics, and bureaucrats err on the side of caution.
The specific event that produced the modern status of presidential documents was the Watergate scandal. Richard Nixon took pains to prevent records of his administration, specifically tape recordings of Oval Office conversations, from falling into the hands of Congress and the Watergate special prosecutor. The Supreme Court finally ordered that the tapes be handed over, and Nixon shortly resigned the presidency. Lest the disgraced president bury additional evidence of wrongdoing, Congress in late 1974 passed a law asserting federal custody of Nixon’s presidential records. He contested the act in court, and lost.
The 1974 law applied solely to Nixon, but in 1978 Congress passed the Presidential Records Act, which declared presidential records to be public rather than private property. It was at this point that presidents were forbidden by law to walk off with presidential papers when they left office. Vice-presidents were similarly constrained.
Donald Trump, as former president, has run afoul of this law; so also Joe Biden and Mike Pence, as former vice-presidents. None has admitted illegal intent in possessing documents past the end of his term of office. A charitable interpretation is that each viewed his work seriously enough to take it home with him, and simply forgot to return the documents. Partisans will find it easier to extend charity to one or two more than to the other(s).
So far nothing has surfaced to suggest that American security was grossly jeopardized. Given the low ratio of documents that ought to be classified to those that are classified, this isn’t surprising. To borrow a phrase applied to Watergate, we haven’t seen a smoking gun. And we probably won’t.
But neither will we see an end to the sound bites and finger-pointing. The chattering classes gotta chatter.