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FactCheck: Former presidents not allowed to take home official records

Quick take

The National Archives recovered 15 boxes of materials from former President Donald Trump’s time in office. Tom Fitton, president of Judicial Watch, claimed that the law allowed Trump to “take documents when he left the White House.” But a former president isn’t allowed to take possession of official records, which Trump has said these are.

Full story

The National Archives and Records Administration retrieved 15 boxes of records from former President Donald Trump’s Mar-a-Lago residence in January, NARA has confirmed.

Some of the other records that NARA had received earlier from the Trump administration had been torn up by the former president and, in some cases, taped back together by records management officials at the White House, according to a NARA statement issued on Jan. 31.

Media coverage of these developments has generated backlash from some of Trump’s supporters.

For example, Tom Fitton, president of the conservative nonprofit Judicial Watch, wrote on Twitter, “Fact check: The left media is being dishonest about the Trump records issue. A president has discretion on what docs to retain as presidential records while in office. So the law allows Trump to tear up documents, shred them, and take documents when he left the White House.”

Other Twitter users copied and pasted the claim, and Fitton posted a screenshot of his tweet on both Facebook and Instagram. He also posted the claim on his Telegram channel. The claim was also translated into Spanish and posted on Facebook.

But experts told us that Fitton’s claim is, at best, very misleading, bordering on false.

Here’s why:

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The Presidential Records Act, or PRA, governs the maintenance of presidential records. It was passed in 1978, after former President Richard Nixon sought to destroy recordings made in the White House that documented activities related to the Watergate scandal, David S. Ferriero, archivist of the United States who is in charge of NARA, explained in a 2017 publication for the National Archives.

When a president leaves office, the archivist takes custody of the records from that administration and is responsible for their preservation and for providing access to the public, according to a Congressional Research Service report.

“The Presidential Records Act requires that all records created by presidents be turned over to the National Archives at the end of their administrations,” NARA said in its Jan. 31 statement.

Jason R. Baron, a professor at the University of Maryland and former director of litigation at NARA, cited the PRA when we asked him to evaluate Fitton’s claim. The PRA was “enacted to ensure that the American people — not the president — own records created or received by a president when in office,” he told us by email.

“A president has no legal right to tear up, shred, or otherwise dispose of copies of records that he creates or receives while in office (including his own notes or annotations on documents concerning official business),” Baron said.

He noted that the PRA allows a sitting president to dispose of official records only after consulting with the archivist.

Baron also said that a president doesn’t have “the right to decide for himself that he will take boxes containing presidential records to his own residence after he leaves office, even if it is allegedly for the purpose of transferring them to a presidential library.”

“The PRA specifies that upon the conclusion of a president’s time in office, the Archivist assumes legal control of presidential records, and the Archivist alone is empowered to decide where those records will be housed,” Baron said.

Kel McClanahan, a professor at the George Washington University Law School and executive director of the public interest law firm National Security Counselors, had a similar but slightly different take.

He honed in on an issue that was also noted in the CRS report, which cited Ferriero’s 2017 article. The report explained that the PRA allows for personal records to be classified separately from official presidential records and that “the President has a high degree of discretion over what materials are to be preserved under the PRA.”

So, McClanahan said, Fitton technically has a point when saying, “A president has discretion on what docs to retain as presidential records while in office.”

But, in this case, that’s a moot point, since both NARA and Trump have referred to the recently recovered material as official presidential records.

Trump issued a statement on Feb. 10 saying that some of the materials would eventually be displayed in his presidential library. “It was a great honor to work with NARA to help formally preserve the Trump Legacy,” the statement said. 

So, given Trump’s acknowledgement that the materials were designated as presidential records under the PRA, it would appear to be a violation to leave office with them.

“Bottom line,” McClanahan said, “if Trump believed these were presidential records, he couldn’t freely take them with him as Fitton said. And if he didn’t believe they were presidential records, then they wouldn’t go in his Presidential Library as Trump claimed. So either Fitton or Trump can be speaking truthfully, but not both.”

McClanahan also noted that Fitton wasn’t specific about which law he was talking about. The destruction of presidential records could be a violation of two other federal laws that protect records and other government property, he said.

We reached out to Judicial Watch for clarification, but we didn’t hear back.

The Washington Post, which was the first news outlet to report on the boxes recovered from Mar-a-Lago, noted that all recent presidential administrations have had some PRA violations, although most have involved the use of unofficial email accounts and phones.

In a statement addressing the current situation, Ferriero said, “NARA pursues the return of records whenever we learn that records have been improperly removed or have not been appropriately transferred to official accounts.”

NARA had worked with representatives for Trump over the course of 2021 to find records that hadn’t been transferred, according to a statement from the administration. In December, one of those representatives identified the recently recovered boxes and “NARA arranged for them to be securely transported to Washington,” the statement says.

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The Presidential seal is placed on the lectern prior to a ceremony at the Pentagon Memorial on Sept. 11, 2012, marking the anniversary of the 9/11 terrorist attacks.