Will Trump Burn the Evidence?

How the President could endanger the official records of one of the most consequential periods in American history.

By Jill Lepore  November 16, 2020

Donald Trump is not much of a note-taker, and he does not like his staff to take notes. He has a habit of tearing up documents at the close of meetings. (Records analysts, armed with Scotch Tape, have tried to put the pieces back together.) No real record exists for five meetings Trump had with Vladimir Putin during the first two years of his Presidency. Members of his staff have routinely used apps that automatically erase text messages, and Trump often deletes his own tweets, notwithstanding a warning from the National Archives and Records Administration that doing so contravenes the Presidential Records Act.

Trump cannot abide documentation for fear of disclosure, and cannot abide disclosure for fear of disparagement. For decades, in private life, he required people who worked with him, and with the Trump Organization, to sign nondisclosure agreements, pledging never to say a bad word about him, his family, or his businesses. He also extracted nondisclosure agreements from women with whom he had or is alleged to have had sex, including both of his ex-wives. In 2015 and 2016, he required these contracts from people involved in his campaign, including a distributor of his “Make America Great Again” hats. (Hillary Clinton’s 2016 campaign required N.D.A.s from some employees, too. In 2020, Joe Biden called on Michael Bloomberg to release his former employees from such agreements.) In 2017, Trump, unable to distinguish between private life and public service, carried his practice of requiring nondisclosure agreements into the Presidency, demanding that senior White House staff sign N.D.A.s. According to the Washington Post, at least one of them, in draft form, included this language: “I understand that the United States Government or, upon completion of the term(s) of Mr. Donald J. Trump, an authorized representative of Mr. Trump, may seek any remedy available to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement.” Aides warned him that, for White House employees, such agreements are likely not legally enforceable. The White House counsel, Don McGahn, refused to distribute them; eventually, he relented, and the chief of staff, Reince Priebus, pressured employees to sign them.

Those N.D.A.s haven’t stopped a small village’s worth of ex-Trump Cabinet members and staffers from blabbing about him, much to the President’s dismay. “When people are chosen by a man to go into government at high levels and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that,” he told the Washington Post. In 2019, he tweeted, “I am currently suing various people for violating their confidentiality agreements.” Last year, a former campaign worker filed a class-action lawsuit that, if successful, would render void all campaign N.D.A.s. Trump has only stepped up the fight. Earlier suits were filed by Trump personally, or by his campaign, but, last month, the Department of Justice filed suit against Stephanie Winston Wolkoff for publishing a book, “Melania and Me,” about her time volunteering for the First Lady, arguing, astonishingly, that Wolkoff’s N.D.A. is “a contract with the United States and therefore enforceable by the United States.” (Unlike the suit against Trump’s former national-security adviser John Bolton, relating to the publication of his book, “The Room Where It Happened,” there is no claim that anything in Wolkoff’s book is or was ever classified.) And Trump hasn’t stopped: last year, he required doctors and staff who treated him at the Walter Reed National Military Medical Center to sign N.D.A.s.

Hardly a day passes that Trump does not attempt to suppress evidence, as if all the world were in violation of an N.D.A. never to speak ill of him. He has sought to discredit publications and broadcasts that question him, investigations that expose him, crowds that protest him, polls that fail to favor him, and, down to the bitter end, ballots cast against him. None of this bodes well for the historical record and for the scheduled transfer of materials from the White House to the National Archives, on January 20, 2021. That morning, even as President-elect Joseph R. Biden, Jr., is ascending the steps of the Capitol, staffers from the archives will presumably be in the White House, unlocking doors, opening desks, packing boxes, and removing hard drives. What might be missing, that day, from file drawers and computer servers at 1600 Pennsylvania Avenue is difficult to say. But records that were never kept, were later destroyed, or are being destroyed right now chronicle the day-to-day doings of one of the most consequential Presidencies in American history and might well include evidence of crimes, violations of the Constitution, and human-rights abuses. It took a very long time to establish rules governing the fate of Presidential records. Trump does not mind breaking rules and, in the course of a long life, has regularly done so with impunity. The Presidential Records Act isn’t easily enforceable. The Trump Presidency nearly destroyed the United States. Will what went on in the darker corners of his White House ever be known?

“The truth behind a President’s actions can be found only in his official papers,” Harry S. Truman said in 1949, “and every Presidential paper is official.” Truman became an advocate of archival preservation after learning about the fate of his predecessors’ papers. When George Washington left office, in 1797, he brought his papers back to Mount Vernon, but, loaned out, they were “extensively mutilated by rats and otherwise injured by damp”; eventually, they were carried by the historian Jared Sparks to Massachusetts, where Sparks threw out anything he didn’t like, scrapped what he found worthless, gave away much of the rest, and, beginning in 1837, published what he liked best as “The Writings of George Washington.”

For many years, there was no alternative for a departing President but to take his papers home with him; there wasn’t really any place to put them. Thomas Jefferson, “having no confidence that the office of the private secretary of the President of the U.S. will ever be a regular and safe deposit for public papers,” took pains to deposit many of his papers with his Cabinet departments. In 1810, Congress established a Committee on Ancient Public Records and Archives of the United States. It reported that the records of the federal government were “in a state of great disorder and exposure; and in a situation neither safe nor convenient nor honorable to the nation.” Congress took little action. In 1814, the congressional library burned to the ground.

Most of the papers of William Henry Harrison, the log-cabin candidate, succumbed to flames when that log cabin burned down. Those of both John Tyler and Zachary Taylor were largely destroyed during the Civil War. In 1853, when Millard Fillmore left the White House, he had his papers shipped to a mansion in Buffalo. He died in 1874, having made no provisions for the papers. When Fillmore’s only son died, in 1889, his will ordered his executors to “burn or otherwise effectively destroy all correspondence or letters to or from my father.” Only by the merest miracle were forty-four volumes of Fillmore’s Presidential-letter books found in an attic of a house, in 1908, and only because it was on the verge of being demolished.

Chester Arthur’s son had most of his father’s Presidential papers burned in three garbage cans. “The only place I ever found in my life to put a paper so as to find it again was either a side coat-pocket or the hands of a clerk,” Ulysses S. Grant once said. For years after Grant’s Administration, scholars were able to locate hardly any of his Presidential papers. In 1888, Congress urged the Library of Congress to collect the papers of the Presidents. In the eighteen-nineties, the library established a Manuscript Division, and a historian who later became its chief began lobbying for the establishment of a National Archives; meanwhile, the American Historical Association formed a Public Archives Commission. In 1910, after the commission reported that “many of the records of the Government have in the past been lost or destroyed,” the A.H.A. petitioned Congress to build a depository. Congress authorized the funds, but no plan was undertaken until after the close of the First World War.

Grover Cleveland, during his two terms, preferred to communicate in person, leaving no paper trail. He insisted that the records of his Presidency were his personal property and, in 1886, refused to turn over papers that the Senate had demanded: “if I saw fit to destroy them no one could complain.” (That is what, during the Presidency of Dwight D. Eisenhower, came to be called “executive privilege.”) Cleveland’s contention became a convention: the President’s papers belong to the President, who can deny requests for disclosure not only from the public but from other branches of the federal government. William McKinley was assassinated in 1901; his secretary held on to his papers until 1935, when he donated them to the Library of Congress, where they remained under his, and later his son’s, tight control until 1954. In 1924, a raft of papers from the Taft, Wilson, and Harding Administrations were found in the attic of the White House. Warren Harding’s Presidency was riven by scandal; after his death, his wife told the chief of the Manuscript Division of the Library of Congress that she had destroyed all his papers, although she had burned only those she thought “would harm his memory.” Most of the rest she left to the Harding Memorial Association. The Library of Congress acquired a cache of those and other papers in 1972, on the condition that they be closed to the public until 2014. (They turned out to include a thousand pages of love letters between Harding and his mistress. “Won’t you please destroy?” he wrote her in one letter. She did not destroy.) Calvin Coolidge instructed his private secretary to destroy all his personal files; on Coolidge’s death, the secretary said, “There would have been nothing preserved if I had not taken some things out on my own responsibility.”

In 1933, Herbert Hoover laid the cornerstone of the National Archives Building. “This temple of our history will appropriately be one of the most beautiful buildings in America, an expression of the American soul,” he said. A granite, marble, and limestone monument with two forty-foot bronze doors behind seventy-two Corinthian columns, it was built at the height of the Depression, a massive public-works project. In 1941, with Hitler in power in Germany and Mussolini in Italy, Franklin Delano Roosevelt spoke at its dedication:

To bring together the records of the past and to house them in buildings where they will be preserved for the use of men and women living in the future, a Nation must believe in three things. It must believe in the past. It must believe in the future. It must, above all, believe in the capacity of its own people so to learn from the past that they can gain in judgements in creating their own future.

Americans used to believe in those three things. Do they still?

Archives are ancient, but national archives, the official repositories of the records of a nation-state, date to the French Revolution: France established its Archives Nationales in 1790. Britain established what became a pillar of its National Archives in 1838. Newly independent nations have established national archives as part of the project of declaring independence: Argentina established what would become its national archive in 1821, Mexico in 1823, Brazil in 1838.

National archives uphold a particular vision of a nation and of its power, and, during transitions of power in nations that are not democratic, archives are not infrequently attacked. Most attacks involve the destruction of the evidence of atrocity. Brazil abolished slavery in 1888. Two years later, after a military coup, a minister of the new republic ordered the destruction of every document in any archive in the country which related to its history of slavery.

Richard Ovenden’s new book, “Burning the Books: A History of the Deliberate Destruction of Knowledge,” is a litany of this sort of tragedy. “The preservation of information continues to be a key tool in the defense of open societies,” Ovenden, who runs the Bodleian Libraries, at Oxford, writes. unesco’s report “Lost Memory” is an inventory of inventories: a list of libraries and archives that were destroyed in the twentieth century, including the widespread devastations of the First and Second World Wars, the burning of some of the collections in the National Library in Phnom Penh by the Khmer Rouge, and the destruction of the National and University Library in Sarajevo, by the Bosnian Serb Army, in 1992. Libraries house books: copies. Archives store documents: originals. Archives cannot be replaced. As unesco’s report puts it, “The loss of archives is as serious as the loss of memory in a human being.”

All is not always lost. Officials of the British Empire set fire to entire archives as they left the colonies. In 1961, in Uganda, the objectives of what came to be known as Operation Legacy included the elimination of all documents that might “embarrass” Her Majesty’s government. Decades later, some three hundred boxes from Kenya and nearly nine thousand files from more than thirty other former British colonies, including Malta, Malaya, and the Bahamas, were discovered in a top-secret government fortress north of London. In 1992, guards from the former Soviet republic of Georgia burned to the ground the Central Archive of Abkhazia. But many of its documents had been microfilmed or photocopied, and these records were stored in other buildings. In 2005, Guatemalan officials conducting a safety inspection of a munitions depot came across the long-hidden records of the brutal force that was the National Police—an estimated eighty million pages, described by my Harvard colleague Kirsten Weld as “papers spilling forth from rusted file cabinets, heaped on dirt floors, in trash bags and grain sacks, shoved into every conceivable nook and cranny, moldy and rotting.” People have spent more than a decade preserving and organizing them.

Governments that commit atrocities against their own citizens regularly destroy their own archives. After the end of apartheid, South Africa’s new government organized a Truth and Reconciliation Commission because, as its report stated, “the former government deliberately and systematically destroyed a huge body of state records and documentation in an attempt to remove incriminating evidence and thereby sanitise the history of oppressive rule.” Unfortunately, the records of the commission have fared little better: the archive was restricted and shipped to the National Archives in Pretoria, where it remains to this day, largely uncatalogued and unprocessed; for ordinary South Africans, it’s almost entirely unusable. In the aftermath of the Trump Administration, the most elusive records won’t be those in the White House. If they exist, they’ll be far away, in and around detention centers, and will involve the least powerful: the families separated at the border, whose suffering federal officials inflicted, and proved so brutally indifferent to that they have lost track of what children belong to which parents, and how to find them.

In 1950, Truman signed the Federal Records Act, which required federal agencies to preserve their records. It did not require Presidents to save their papers, which remained, as ever, their personal property. In 1955, Congress passed the Presidential Libraries Act, encouraging Presidents to deposit their papers in privately erected institutions—something that every President has done since F.D.R., who was also the first President to install a tape recorder in the White House, a method of record-keeping that was used by every President down to Richard M. Nixon.

The Presidential libraries are overseen by the National Archives and Records Administration. They were intended to be research centers, and include museums; and they serve, too, as monuments. The Barack Obama Presidential Library is the first Presidential library whose collections will be entirely digital—they will be available to anyone, anywhere, anytime. But the Presidential library, which started with F.D.R., may well end with Obama.

Donald Trump, if he decides that he wants a Presidential library, is far more likely to build a Presidential museum, or even a theme park, and would most likely build it in Florida. “I have a lot of locations, actually,” Trump said on NBC last year. Last month, an anonymous group from New York published its own plans for a Trump library at djtrumplibrary.com. Its exhibits include a Criminal Records Room and a Covid Memorial, just off the Alt-Right Auditorium. But, long before Trump gets around to designing an actual Trump Library, he is likely to run afoul of a struggle over Presidential records that began with Watergate and Nixon’s tapes.

In 1974, a special prosecutor subpoenaed the Nixon Administration for the Watergate tapes. The White House refused to comply. The case went to the Supreme Court. In United States v. Nixon, the Court devised a balancing test that measured the argument for executive privilege against the judiciary’s interest in criminal justice, and ordered Nixon to turn over the tapes on July 24, 1974. Fifteen days later, Nixon resigned, and proceeded to sign an agreement with the General Services Administration that would have allowed him to destroy the records of his Presidency. Congress then passed the Presidential Recordings and Materials Preservation Act, which prohibited Nixon from destroying the tapes. Nixon sued but, in 1977, in Nixon v. Administrator of General Services, he lost. Still, his legal battles continued into the nineteen-nineties.

To avoid all this happening all over again with another President, Congress in 1978 passed the Presidential Records Act. It puts Presidential records in the public domain; the public can see those records five years after the President leaves office, though a President can ask to extend those five years to twelve for material deemed sensitive. No longer are Presidential papers the private property of the President. The act also directs every White House to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records.” What counts as “such records” has been much contested. The archivist of the United States is appointed by the President; the archivist cannot tell the President what to do or what to save but can only provide advice, which the President can simply ignore.

The Presidential Records Act was scheduled to go into effect on January 20, 1981, with the Inauguration of the next President, who turned out to be Ronald Reagan. Reagan’s Attorney General, Edwin Meese III, decided to help Nixon, who was still fighting in court for control of the archives of his Presidency. The Reagan Administration aided the efforts of Nixon’s lawyers, who argued that the archivist of the United States has no discretion in evaluating claims of executive privilege but must, instead, defer to them without review. In 1988, in Public Citizen v. Burke, the D.C. Circuit Court ruled against Nixon and the Administration. The next year, Reagan left office, and his staff packed up his papers.