The Truth About Donald Trump's Presidential Records Matter You Won't Find Anywhere Else
The paper documents at Mar-a-Lago were not Presidential records by the government's own definition, and the National Archives had no right to claim them.
After more than 23 years managing White House and Federal agency records at the highest levels of the government, I am widely regarded by industry leaders and members of the Federal records management community as an authority on the policies, procedures, and technologies required for complying with the Presidential Records Act.
Here’s the truth about Donald Trump’s Presidential records matter that you won’t get from anyone else.
By the National Archives and Records Administration’s own rules, Presidential records born digitally must be preserved through their entire natural lifecycle - creation, distribution, use, maintenance, and disposition - in their native electronic format.
This is true for many reasons, but here are the two most important ones:
All electronic records contain metadata (i.e., information about the record and its content). Records management industry standards and National Archives policy state that no electronically created record is complete without including its associated metadata. Paper printouts of electronically created records would only provide the contents of the record, not the metadata, and so, would be unacceptable under the government’s own definition of a Presidential record.
Unlike paper records, which are two dimensional, records created electronically are three dimensional. This means you can dive into an electronic record in ways that you can’t using paper-based records. An embedded link in a PDF or Word document is an obvious example of this. But a less obvious example might be a formula in a spreadsheet. If a spreadsheet displays a value in a cell, all you would see in a printout of that spreadsheet is the value. In order to understand how that value was derived, you would have to drill into the cell to see the formula that created the value, something not possible in a paper printout.
Because Presidential records born digitally must be preserved throughout their lifecycle in their original electronic format - and given the staggering volumes of electronic records continuously created and received by the White House - Federal laws and regulations require that systems be put in place that capture and preserve Presidential records in compliance with 36 CFR § 1236.10, which describes the records management controls the White House must establish for preserving its electronic records. (The information lifecycle management functionality required of these systems is provided in 36 CFR § 1236.20.)
For what should be obvious reasons, the implementation and support for these systems is not the responsibility of the President. It is, in fact, the responsibility of the White House Office of Records Management and current White House Records Management Branch Chief, David Mills.
At the end of a President’s time in office, Mills (who has held his position since early in Barack Obama’s first term) and his team are required to crawl through each of these systems, gather every piece of electronically recorded information in them, and accession it all to the National Archives and Records Administration for permanent preservation.
This has been the responsibility of the White House Office of Records Management since the Presidential Records Act was first implemented at the end of the Reagan administration. Whether Mills and his team met these requirements at the end of Donald Trump’s administration is not known. But, again, it is not the responsibility of the President to ensure they did.
This is the definition of a ‘Presidential record’ according to 44 U.S. Code § 2201, as amended in the Presidential and Federal Records Act Amendments of 2014:
Note in Part (2) Subpart (B) that documentary materials that are “extra copies of documents produced only for convenience of reference, when such copies are clearly so identified” are not included within the definition of a Presidential record.
With the rare exception of occasional handwritten notes or documents created on typewriters (assuming anyone can actually find one), nearly all Presidential records are originally created in digital formats. And because they then must be preserved throughout their lifecycle in their original digital format, any printout of those electronic records must be considered convenience copies used for reference. NARA and Federal records standards consider this material to be ‘nonrecords’.
Here is Title 36 § 2201.18, the government’s definition of ‘nonrecord material’:
According to NARA’s own guidance, nonrecord materials “should be destroyed when no longer needed for reference. NARA's approval is not required to destroy such materials.” This is essentially telling the White House they are free to manage this material in any manner they choose.
In February 2022, NARA’s then acting Archivist of the United States, Debra Wall, referred President Trump to the Department of Justice claiming that the former President had taken records that needed to be “returned” to the National Archives in compliance with the Presidential Records Act. But the fifteen or so boxes of paper documents former President Trump stored at his Mar-a-Lago estate were hardcopy printouts (i.e., “nonrecords”) of digitally born Presidential records. These electronic records should have already been accessioned to the National Archives by the White House Office of Records Management at the end of Trump’s administration.
In short, the documents President Trump stored at his Mar-a-Lago estate were nonrecord convenience copies of electronic Presidential records that belonged to the former President and NARA had no claim to them.
The implications here should be obvious. NARA’s referral of the former President to the DOJ claiming he had mishandled “Presidential records” was factually inaccurate, and the FBI’s subsequent raid on Mar-a-Lago was a clear violation of President Trump’s 4th Amendment Constitutional rights.
Anything damaging that the former President said or did during and after the raid, and any evidence the FBI collected during their raid is thus “fruit of the poisoned tree,” and so must be immediately dismissed.
The truly important question from both a legal and a historical perspective then becomes this: Did the White House Office of Records Management capture and preserve all of the Trump administration’s electronic Presidential records and accession them to NARA for permanent preservation as required by the Presidential Records Act?
Someone needs to ask David Mills. Preferably under oath.
Very informative.