Biden Must Act to Ensure Government Transparency

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.