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Analysis

Biden Must Act to Ensure Government Transparency

The president should issue an executive order to protect accountability by shoring up the Presidential Records Act.

  • Maria Smith
February 8, 2021

For four years, the Trump admin­is­tra­tion rode rough­shod over bedrock values of our demo­cracy, eschew­ing found­a­tional prin­ciples like trans­par­ency and account­ab­il­ity. Whether it was obstruct­ing the Mueller invest­ig­a­tion or inter­fer­ing with inspect­ors general, the consequences of these ethical lapses cannot be over­stated. What’s more, there are concerns that during its final months in power, the admin­is­tra­tion tried to cover its tracks by destroy­ing offi­cial records in viol­a­tion of the Pres­id­en­tial Records Act, or PRA.

Now that there is a new admin­is­tra­tion, Pres­id­ent Biden must restore the exec­ut­ive branch’s commit­ment to a govern­ment that is commit­ted to trans­par­ency and account­ab­il­ity. He can start by ensur­ing compli­ance with the Pres­id­en­tial Records Act by sign­ing an exec­ut­ive order on the issue.

Congress passed the PRA in 1978 in response to the Water­gate scan­dal, estab­lish­ing public owner­ship of pres­id­en­tial records. (Before then, these records were considered the prop­erty of the office­holder.) The law requires the pres­id­ent to docu­ment and preserve records related to an admin­is­tra­tion’s “activ­it­ies, delib­er­a­tions, decisions, and policies.”

Regret­tably, it lacks defined enforce­ment mech­an­isms, so it in effect oper­ates “as an honor system,” and past pres­id­ents have not always fully complied with the it. For instance, White House offi­cials tried to delete computer files from the Reagan pres­id­ency. The Clin­ton admin­is­tra­tion failed to release some offi­cial docu­ments by the stat­utory dead­line (although many were released later). Pres­id­ent George W. Bush issued an exec­ut­ive order grant­ing incum­bent and former pres­id­ents, former vice pres­id­ents, and their design­ees broad author­ity to restrict access to previ­ous admin­is­tra­tions’ records and to delay the release of certain records indef­in­itely.

But no pres­id­ent has defied the law’s require­ments as flag­rantly as Trump. He tore up notes at the end of White House meet­ings and deleted some of his tweets, in defi­ance of both the PRA and a warn­ing from National Archives and Records Admin­is­tra­tion (NARA). There are no records for at least five meet­ings between Trump and Russian leader Vladi­mir Putin, with Trump even going so far as to confis­cate his inter­pret­er’s notes.

Further, White House staff — whose records are also subject to the PRA — flouted the White House coun­sel’s advice by using commu­nic­a­tions apps that auto­mat­ic­ally delete messages. Equally troub­ling: Trump’s corres­pond­ence with North Korean leader Kim Jong Un, which was never made public, may not have been copied or saved. Records analysts and histor­i­ans worry that the Trump admin­is­tra­tion’s flout­ing of the PRA will not only leave a hole in the histor­ical record but also impede invest­ig­a­tions of the former pres­id­ent.

How do we repair the damage done to the PRA over the past few decades, espe­cially in the past four years? As part of the new admin­is­tra­tion’s broader effort to restore faith in the federal govern­ment, Biden should issue an exec­ut­ive order to strengthen compli­ance with the law. Consist­ent with exist­ing law and guid­ance from NARA, the order should outline a frame­work for the types of records that the admin­is­tra­tion will capture and preserve. It should also mandate the system­atic and timely collec­tion of relev­ant original docu­ments — includ­ing digital and social media formats with metadata –– and express the pres­id­ent’s commit­ment to preserving all records relat­ing to meet­ings with foreign lead­ers.

The order should also contain a commit­ment to work with NARA to update stand­ards for the manage­ment of phys­ical and digital records, and it should require the agency to annu­ally certify whether the admin­is­tra­tion’s records manage­ment meets these stand­ards, as well as the require­ments of the PRA.The order should mandate that, when White House offi­cials want to delete docu­ments that might be govern­ment-related,  all commu­nic­a­tions about the docu­ments between the White House and NARA be publicly disclosed. Finally, it is also essen­tial that the order direct the heads of federal agen­cies to recover pres­id­en­tial records that may be stored on agency serv­ers in the event that Trump ordered the destruc­tion or falsi­fic­a­tion of White House records.  

These steps align with legis­la­tion recently intro­duced in Congress to fill the obvi­ous gaps in the law exposed by both the Trump admin­is­tra­tion and the recent pres­id­en­tial trans­ition process. But the Biden admin­is­tra­tion does not have to wait for Congress to imple­ment these improve­ments.

There is preced­ent for such action. On his first day in office, Pres­id­ent Obama signed an exec­ut­ive order revers­ing changes that Bush had made to records manage­ment proto­cols, prom­ising to hold himself “to a new stand­ard of open­ness.” It sent a clear message about the import­ance of trans­par­ency in govern­ment — even if the Obama admin­is­tra­tion did not always fulfill its trans­par­ency commit­ments, such as in its incon­sist­ent admin­is­tra­tion of the Free­dom of Inform­a­tion Act and its treat­ment of report­ers who published clas­si­fied inform­a­tion.

In the wake of Trump’s utter disreg­ard for public account­ab­il­ity, Biden must restore the norms, prac­tices, and rules that ensure trust in govern­ment. The Bren­nan Center has put forward a series of propos­als for exec­ut­ive actions that would increase trans­par­ency across a wide range of govern­ment matters, includ­ing commu­nic­a­tions between the White House and the Depart­ment of Justice as well as polit­ical spend­ing among govern­ment contract­ors. A robust commit­ment to the preser­va­tion and disclos­ure of pres­id­en­tial records is crit­ical to efforts to increase trans­par­ency.

Maria Smith is a student at Harvard Law School and a former legal intern with the Bren­nan Center’s Demo­cracy Program.