By Shannon Bow O’Brien / For The Conversation
Into the sewer.
That appears to be the intended destination of what look like torn-up presidential documents in photographs released by reporter Maggie Haberman to the news publication Axios, which published them on Aug. 8.
Haberman has a book coming out on former President Donald Trump in early October. One photo, allegedly of a White House toilet, shows a scrap of paper with what Haberman says is Trump’s handwriting on it, sitting at the bottom of the toilet bowl. The other photo, of a different toilet allegedly used on an overseas trip, has several scraps of paper similarly situated, with the name of a Republican congresswoman written on one piece.
This could be the first visual documentation of Trump’s already-reported habit of flushing documents down a White House toilet. In response, Trump spokesman Taylor Budowich told Axios, “You have to be pretty desperate to sell books if pictures of paper in a toilet bowl is part of your promotional plan.”
But even without having to unclog plumbing in search of missing papers, national archivists have their work cut out trying to plug potential gaps in the 45th president’s historical record.
This Feb. 7, it emerged that 15 boxes of documents and other items that should have been handed over to the National Archives and Record Administration had been found at Trump’s Mar-a-Lago residence.
Trump says he was told that he was under “no obligation” to hand over the documents, but the law suggests he may be mistaken.
Specifically, Section 2071 of Title 18 of U.S. Code states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” records or documents filed in any public office can be fined or imprisoned for up to three years.
It’s deemed a more serious crime if documents are classified, where a penalty of up to five years imprisonment can apply.
In both cases, those held responsible are disqualified from holding any office in the United States.
These requirements build a complete picture of events that have lasting consequences. Among the records reportedly incomplete or missing from Trump’s tenure in the White House are phone logs from Jan. 6, 2021.
Saving the records: In 1957, the National Historical Publications Commission, a part of the National Archives, recommended developing a uniform system so all materials from presidencies could be archived. They did this to literally save presidential records from the flames: President Warren G. Harding’s wife claimed to have burned all his records, and Robert Todd Lincoln burned all his father’s war correspondence.
So the government collects and retains all presidential communications, including executive orders, announcements, nominations, statements and speeches, and any public, oral communications by presidents, which are also placed as public documents in the Compilation of Presidential Documents.
These are part of the official record of any administration, published by the Office of the Federal Register, National Archives and Records Administration on a weekly basis by the White House press secretary. In most presidencies, the document or transcript is available a few days to a couple of weeks after any event. At the conclusion of an administration, these documents form the basis for the formal collections of the Public Papers of the President.
As a political scientist, I’m interested in where presidents give speeches. What can be learned about their priorities based on their choice of location? What do these patterns tell us about administrations?
Barack Obama primarily focused on large media markets in states that strongly supported him. Trump went to supportive places as well, including small media markets like Mankato, Minn., where the airport was not even large enough to fly into with Air Force One.
Presidential speeches often give a different perception of an administration. Without all the pageantry, you can quickly get to the point of the visit in the text.
In speeches that President George W. Bush gave in the 2002 midterm election period, he made the same joke more than 50 times as his icebreaker. He would apologize that audiences had drawn the “short straw” and gotten him instead of his wife, Laura. His commitment to that joke gave a glimpse of his desire to connect to an audience through self-deprecating humor.
I found something odd when I began to pull items from the compilation and organize my own database of locations for the Trump administration. I was born and raised in Louisville, Ky. I pay attention to my home state. I knew that on March 20, 2017, Trump held a public rally in Louisville, where in a meandering speech he touched on everything from Kentucky coal miners to the Supreme Court and “illegal immigrants” who were, he said, robbing and murdering Americans.
But when I looked in the online compilation in mid-2017, I couldn’t find the Louisville speech. No problem, I thought. They are just running behind, and they will put it in later.
A year later, the Louisville speech was still not there. Furthermore, speeches from Trump rallies were missing. By my count, 147 separate transcripts for public speaking events – just over 8 percent – are missing from the online compilation of Trump’s official presidential speech records.
What’s in, what’s out: The Presidential Records Act, first passed in 1978, says administrations have to retain “any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.”
An administration is allowed to exclude personal records that are purely private or don’t have an effect on the duties of a president. All public events are included, such as quick comments on the South Lawn, short exchanges with reporters and all public speeches, radio addresses and even public telephone calls to astronauts in space.
But what Trump said at his large public rallies has so far been omitted from the public record his administration supplied to the Compilation of Presidential Documents. And while historians and the public could get transcripts from publicly available videos, that does not address the need for a complete official collection of these statements.
Under federal law, presidents are allowed to exclude “materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of … duties of the President.”
The law has been interpreted to mean an administration could omit notes, emails or other documentation from what it sends to the compilation. While many presidents do not provide transcripts for speeches at private party fundraising events, rallies covered by America’s press corps likely do not fall under these exclusions.
Why does it matter? Government documents are among the primary records of who we are as a people.
These records speak to Americans directly; they are not what others tell us or interpret to us about our history. The government compiles and preserves these records to give an accurate accounting of the leaders the country has chosen. They provide a shared history in full.
Since 1981, the public has legally owned all presidential records. As soon as a president leaves office, the National Archivist gets legal custody of all of them Presidents are generally on their honor to be good stewards of history. There is no real penalty for noncompliance.
But these public documents have so far always been available to the public; and they’ve been available quickly. Internal presidential documents like memos or email have a rigorous archival procedure that lasts years before they are even accessible. I have a record of every presidential speech from 1945 to 2021; every president since Bill Clinton has all their public speeches available online. Until Trump, there have been no missing public speeches in the permanent collection. By removing these speeches, Trump is creating a false perception of his presidency, making it look more serious and traditional.
And by the way: That 2017 Louisville speech is still missing from the records in 2022. I’m hoping it might be found among those 15 boxes.
Shannon Bow O’Brien is an associate professor of instruction at The University of Texas at Austin College of Liberal Arts. This article is republished from The Conversation under a Creative Commons license.