Vail Law: Presidential Records Act requires retention of a whole lot of Executive paperwork (column)
June 19, 2018
President Donald Trump has got a fetish.
No, not that one — and, no, no, not that one, either. The particular fetish to which I'm making reference is the apparent peculiar habit of the president ripping paper, reportedly into teeny tiny bits. I'll let Dr. Freud — or, he being unavailable, our own Chris Freud — explain just why that may be. Exactly what traumatic life event turns one into a human paper-shredding machine?
In any event …
It seems the president's habit extends not just to old love letters, unflattering photographs or yesterday's New York Times. It appears, instead, to extend to any bit of processed cellulose he can get his hands on.
Besides the risk of a nasty paper cut, the problem is this: Some of the papers that he's shredding like a hamster preparing its nest are … ah … well, they are sort of important.
Back in the day, when Trump was master of his own real estate development universe … well, shred away. Even though it may have — or perhaps may not have — annoyed his business compatriots, if The Donald made mincemeat of a quarterly report, then you could chalk that up to a tycoon peccadillo. I need not remind you of similar or much worse peccadillos in which other tycoons have indulged; one only need think back Howard Hughes in his later years.
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"Why does the boss shred?" the joke might have gone.
"Because he never learned to ski!"
But back on point …
Now, when The Donald shreds, it has real-life consequences. You see, everything that comes into the president's hands is part of the historical record. Let me refine that last statement just a smidge; not everything that comes into the president's hands becomes part of the official record. I'll let your imagination take a flight of fancy as to what would be exempt — but a hint here: cheeseburgers, chocolate cake and Melania would be exemptions.
But as to papers, well, that's another thing. And here's why.
Rather grandiloquently, it's known as the Presidential Records Act (the "PRA"), and here is how it goes.
Passed in 1978, and amended in 2014, the act is blowback from the Richard Nixon era. As you may recall (or, if you are of a more tender age, you may have heard), Tricky Dick rather severely upset the national apple cart. When he was ushered off into the sunset, people had lost faith in their government, and all manner of reforms were contemplated. Many had to do with making the Executive more transparent and more accountable. The PRA was one of them.
Beginning with the Regan administration, when the act first became effective, the PRA governs the official records of presidents and vice presidents. The PRA changed the legal ownership of the official records of the president and his vice from private to public and established a new statutory structure under which presidents — and subsequently the National Archives and Records Administration, which is charged as keeper of official records — must manage the records of their administrations.
Some of the key provisions of the Act:
• Establishes public ownership of all presidential and vice presidential records.
• Places responsibility for the custody and management of presidential records with the president.
• Requires that the president and his staff take all practical steps to file personal records separately from presidential records.
• Allows the president to dispose of records that no longer have administrative, historical, informational or evidentiary value, but only after the views of the Archivist of the United States on the proposed disposal have been obtained in writing.
• Establishes that presidential records automatically transfer into the legal custody of the Archivist as soon as the president leaves office.
• Establishes a process by which the president may restrict (and the public may obtain access to) these records after the president leaves office; specifically, the PRA allows for public access to presidential records through the Freedom of Information Act beginning five years after the end of the administration but allows the president to invoke as many as six specific restrictions to public access for up to 12 years.
• Establishes procedures for Congress, courts and subsequent administrations to obtain "special access" to records from the National Archives and Records Administration that remain closed to the public.
• Establishes preservation requirements for official business conducted using nonofficial electronic messaging accounts: Any individual creating presidential records must not use nonofficial electronic messaging accounts unless that individual copies an official account as the message is created or forwards a complete copy of the record to an official messaging account.
In short, presidential mincing is a no-no.
Word on the street (which the White House has not denied) is that two full-time (and full-salaried) presidential aides spend much of their days putting Humpty Dumpty back together again. After the president slashes, splits, cleaves and gashes, staffers have been taping shredded bits and chaff back together in order to comply with the act.
Whatever the exact case may be, the PRA declaims: "Thou must preserve!" And if Scotch Magic Transparent Tape is the means by which the Executive's work must be done, then, I suppose, so be it.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.