Documents and presidents: What are the rules?

It’s almost second nature to take work home. Billions of people do. Especially when your job never really turns off, when an electing public expects you to be “on” 24/7/365, working during so-called time off is just part of your job reality.

So we probably shouldn’t be too surprised if two presidents (and perhaps more) did it, probably on some kind of unofficial honor system. How much or little they did, how right or wrong, whether to hold them accountable — let’s table that for the moment.

What are the rules?

Paperwork for most people isn’t subject to security clearance. What we do isn’t making history nor is the product of our work destined for the National Archives. It doesn’t belong to the American public.

It’s different for presidents.

In the final hours of every president’s term, officials from the National Archives and Records Administration quietly descend on the White House to scoop up paperwork for posterity in compliance with the Presidential Records Act. The modern age has expanded that; while email doesn’t need to be printed, electronic records must be reformatted, sorted and preserved. The whole process takes months and covers millions of documents.

The Presidential Records Act was passed in 1978 after President Nixon tried to destroy White House tapes during the Watergate scandal. It specifies that presidential records belong to the public when created (even gifts, recordings and letters including private thoughts) and are to be turned over to NARA — the Archives — at the end of a presidency. The act also covers vice-presidential and classified documents. The president has custody of them during the presidency, which isn’t to say unchecked authority to do what they want, but to essentially preserve and hold them until the term ends.

The rules governing classified documents, set in a combination of statutes, procedures and executive orders, state they are supposed to receive a high level of scrutiny regardless of who is using them, stamped classified and labeled in special folders and boxes and aren’t to be mixed with unclassified records. The rules require them — from a single sheet of paper to a file or entire box — to be stored, transferred and kept in secure facilities. They aren’t supposed to be accessible to anyone without proper clearance to see them. Mishandling them, failing to keep them secured or even small disclosures without authorization can incur civil and criminal penalties.

Presidents and vice presidents travel a lot for public business. Can they take records they need with them? Yes, but they or their aides are supposed to soon ensure they get back to rightful places. This apparently has not always happened, and there is no oversight.

Can a president declassify a document? Yes and no.

Article II of the U.S. Constitution confers limited authority to safeguard national security information. According to the legal think tank Brennan Center for Justice, under Article II, if a president determines that protections for classified information can be removed without harming national security or that the public interest in disclosure outweighs any such harm, he has exercised that judgment. If, on the other hand, a president alters a document’s classification status for some other reason, such as the convenience of working from anywhere other than in a secure facility, that would be an abdication of his Article II responsibility.

Congress also has joint authority in some respects over certain materials. Some laws restrict the authority to declassify to particular departments, such as Energy or Defense.

Learn more about the Presidential Records Act at archives.gov/presidential-libraries/laws/1978-act.html, and about classified documents at archives.gov/isoo/faqs.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email sholeh@cdapress.com.