What is the Presidential Records Act?

By Ashley Pickus, National Politics Reporter
Photo: Department of Justice — Documents possessed by Fmr. President Donald J. Trump at Mar-a-Lago

Congress enacted the Presidential Records Act (PRA) in 1978 initially as a reaction to the Richard Nixon Watergate scandal and a dispute over his presidential records. The new legislation essentially changed the legal ownership of presidential records from private to public; the records belonged to the United States government rather than the President himself. It also laid out the process of filing records and what happens after a President’s term comes to an end.

All official White House records were considered the President’s personal property previous to the PRA, which first applied to the Reagan administration. Thus, from Presidents Washington to Carter, the President could do whatever he pleased with official records. Presidents Hoover through Carter chose to donate their records to the National Archives and Records Administration (NARA), along with the Presidential Library buildings where they are stored (National Archives and Records Administration 2023). This changed after Nixon attempted to withhold secret recordings created in the White House.

The Watergate Hotel is the center of the scandal that brought down the Nixon presidency. On June 17, 1972, five men broke into the Democratic National Committee headquarters located in the hotel. After being apprehended by authorities, Acting FBI Director L. Patrick Gray was notified that one of the men arrested was a security officer for the Committee to Re-Elect the President, tying him directly to Nixon’s campaign (FBI 2016). 

In the aftermath of the Watergate scandal, it was discovered that Nixon secretly recorded conversations held in the White House, including conversations regarding the Watergate burglary and the administration’s plans to try and cover it up. In 1974, a grand jury indicted seven of Nixon’s closest aides for their roles in the Watergate affair. Nixon refused to hand the tapes over to the special prosecutor and defendants, claiming that he had the right to withhold the information due to executive privilege. This led to United States v Nixon in 1974, where the Supreme Court ruled that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice,” (United States v Nixon 1974). On August 8, 1974, Nixon announced his resignation. At the end of the same year, Congress passed what would become the predecessor to the PRA—the Presidential Recordings and Materials Preservation Act (PRMPA). Applied only to the Nixon presidential materials, the act stipulated that “those materials relevant to the understanding of Abuse of Governmental Power and Watergate are to be processed and released to the public prior to the release of all other materials,” (National Archives and Records Administration 2016).

In order to prevent a similar situation from occurring in the future, Congress passed the PRA in 1978. The act states “The United States shall reserve and retain complete ownership, possession, and control of Presidential records,” (Presidential Record Act 1978). Therefore, presidential records are no longer considered personal property of the President. Instead, they are the property of the federal government. 

The act also defines personal records versus presidential records to mitigate any potential confusion; personal records include “diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.” Conversely, presidential records are defined as, “documentary materials created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” To summarize, personal records belong to the President while presidential records belong to the government.

The President is also expected to separate personal documents from presidential records before leaving office, as custody of the latter immediately transfers to NARA. Additionally, the President does not have the discretion to categorize a presidential record as a personal record. Donald Trump’s attorney, Tim Parlatore, claimed that a President “is supposed to take the next two years after they leave office to go through all these documents to figure out what’s personal and what’s presidential,” (Gangel et al. 2023). However, in regards to sorting records after a President’s term ends, NARA released a statement on June 9, 2023, asserting that “There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports. If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA.”

Overall, the purpose of the PRA is to preserve presidential records. It also established a new statutory structure under which Presidents must manage their records in order to preserve sensitive documents and avoid getting them into the hands of hostile or bad actors. Ironically, originally enacted as a response to a presidential scandal, the PRA only regained relevance in the wake of another. 

References

Gangel, Jamie, Zachary Cohen, and Elizabeth Stuart. 2023. “National Archives refutes claims Trump had two years to go through presidential records in Rare public statement.” CNN. https://www.cnn.com/2023/06/09/politics/national-archives-refutes-trump-claim-classified-documents-indictment/index.html. 

“Presidential Recordings and Materials Preservation Act (PRMPA) of 1974.” 2016. National Archives and Records Administration. https://www.archives.gov/presidential-libraries/laws/1974-act.html. 

Presidential Records Act, 44 U.S.C. ß2201-2209 (1978).

“Press statements in response to media queries about Presidential Records.” 2023. National Archives and Records Administration. https://www.archives.gov/press/press-releases/2022/nr22-001#June-9-2023-statement. 

United States v. Nixon, 418 U.S. 683 (1974).

“Watergate.” 2016. FBI. https://www.fbi.gov/history/famous-cases/watergate.