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Flushed or just lost to history? Trump leaves hole in the record

Historians say the destruction or misappropriation of White House records is a threat to posterity and the public interest. It could also be a criminal act.
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Former President Donald Trump says he never flushed history down a White House toilet.

But some historians and public-interest advocates say that new details about Trump's habit of destroying documents — along with his decision to take at least 15 boxes of items home from Washington — have exposed holes in the law governing the preservation of White House records and threatened to muddy the picture of his presidency in ways that are significant for posterity and the rule of law.

"You can’t hold anyone accountable and you can’t write an accurate history if you don’t know all that’s there," said Lee White, a lawyer who is executive director of the National Coalition for History. "For historians, it’s the old 'if the tree falls in the forest and no one is there,' how are you going to know a record is missing if it’s missing?"

Records of the Trump presidency have been a hot topic in Washington recently because of his efforts to shield information from the special House committee investigating his role in the Jan. 6, 2021, attack on the U.S. Capitol, which was intended to prevent the certification of President Joe Biden’s victory — and Trump’s defeat — in the 2020 election.

As president, Trump made a habit of tearing up White House records, and the National Archives has said that it received some documents that had been taped back together and others that remained in tatters.

When he left office, Trump took some records to his Mar-a-Lago resort in Florida, where they were recently retrieved by the National Archives. White House call logs from Jan. 6 do not show any calls to or from Trump during the assault on the Capitol, despite public reporting that he spoke to lawmakers while it was under way, a source familiar with the records confirmed to NBC News.

And in her forthcoming book on Trump, New York Times journalist Maggie Haberman reports that White House aides sometimes found wads of printed paper jamming toilets and believed Trump had flushed them, according to Axios.

In a statement issued Thursday, Trump asserted the reporting in Haberman's book, "Confidence Man," due to be released in October, is false.

"Another fake story, that I flushed papers and documents down a White House toilet, is categorically untrue and simply made up by a reporter in order to get publicity for a mostly fictitious book," he said. At the same time, he confirmed that he had taken boxes to Mar-a-Lago, which he described as containing "letters, records, newspapers, magazines and various articles."

That set included what Trump once called "love letters" from North Korean dictator Kim Jong-Un and the traditional predecessor-to-successor note that President Barack Obama left for Trump during the 2017 transition of power, as well as documents marked classified and "top secret," The Washington Post reported.

Under the Presidential Records Act, a law enacted in response to President Richard Nixon's Watergate scandal and updated most recently in 2014, White House officials, including the president, are required to preserve most documents and recordings for transfer to the National Archives. The agency provides training to White House officials on the handling of information.

"Who could argue with the merits of it?" asked former Rep. Mike Harrington, a Massachusetts Democrat who was a co-sponsor of the 1978 law, in an interview. "And who could argue that this guy doesn't care what the ground rules are?"

From time to time, presidential records or other public property have gone missing from the White House. In December 2009, for example, President Barack Obama’s administration recovered 22 million “missing" emails from President George W. Bush’s White House that had been mislabeled. And White House aides, under Republican and Democratic administrations, have long found ways to keep their communications and meetings private, from meeting lobbyists at coffee shops off the White House grounds to the use of party email servers and apps that automatically erase messages.

"You are going to have mistakes," said Trudy Peterson, who served as acting archivist of the United States during the first two years of President Bill Clinton's administration. "What I think is unusual this time is the volume."

Peterson said that it is a matter of "good governance and democracy" for the White House to create and preserve documents. "Records make it possible for the citizen to know how the government operated and to hold the government accountable for its actions," she said.

But the law contains no enforcement mechanism. There is no penalty for violating it, and the National Archives cannot compel a president or his aides to comply with it.

"The archivist has no legal authority; all they can do is advise," said Anne Weismann, a public-interest lawyer who sued the government over the Bush White House emails when she was chief counsel for the group Citizens for Responsibility and Ethics in Washington.

Weismann said federal courts have frowned on civil suits involving the Presidential Records Act on the grounds that they have no role in a separation-of-powers fight that rests between the executive and legislative branches of government. But she said Trump's behavior could amount to criminal conduct under two separate laws banning the destruction of federal property and doing so in a federal building.

"Both statutes apply, but they are criminal statutes, which means the conduct has to be willful," she said. "I think the evidence here strongly suggests willful conduct."

Historians say that past presidents have treated their records with respect for a variety of reasons, including the law, a public interest in understanding how and why decisions were made, and the smooth transition of wisdom and knowledge from one president to the next. What Trump has done, some of them say, represents a departure from the standard practice of presidents in the post-Nixon era.

"The presidential records act was created so that this would never happen again," said James Grossman, executive director of the American Historical Association.