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Watergate changed the rules surrounding presidential records

AYESHA RASCOE, HOST:

An update now on the ongoing investigation into the material seized from former President Trump in Florida and a look at the history of presidential records. For that, we turn to NPR's Greg Myre. Good morning, Greg.

GREG MYRE, BYLINE: Hi, Ayesha.

RASCOE: So some of these documents found at Trump's Mar-a-Lago residence, according to the court record, are very sensitive. Is that correct?

MYRE: Absolutely. The FBI and the Justice Department are going over 11 sets of documents they took last Monday, all of which were marked classified in some way. And five of them were labeled top secret. Now, the former president is claiming he declassified these documents, but that's being treated with quite a bit of skepticism. He would have had to have done it while he was in office, and he hasn't provided any evidence of that. And legal scholars say the possible crimes being investigated don't hinge on whether the documents are classified or not. So we should just stress, finally, that neither Trump nor anyone else has been charged at this point.

RASCOE: Now, you've been looking into the historical record. And for a long time this wasn't even a controversial question, right?

MYRE: For nearly two centuries - the first two centuries of U.S. history - this was a nonissue. All the documents and other material generated by a president in his administration were considered personal property. When a president walked out of the White House at the end of his term, he was free to take any of that material he wanted. Here's how presidential historian Lindsay Chervinsky described it.

LINDSAY CHERVINSKY: Early on, presidents like John Adams and Thomas Jefferson were very attuned to their place in history and their legacy. And so they were very thoughtful about maintaining their documents, cataloging their documents and then, of course, sort of making sure that what remained was what they wanted to remain. So that also includes some erasure.

MYRE: And just one additional note - presidential libraries didn't exist until President Franklin Roosevelt established his in the 1940s. So the handling of documents really was up to individual ex-presidents.

RASCOE: So what changed?

MYRE: Well, in one word, Watergate. When President Richard Nixon resigned in 1974 amid the Watergate scandal, he wanted to take his documents with him like previous presidents. But this included his infamous tape recordings that were so damaging. And so Congress stepped in and said, whoa, this material is important for getting the full story on Watergate, and we certainly don't want these records destroyed. Congress passed an act in 1974 that made Nixon's material public property. And then in 1978, Congress passed a more comprehensive Presidential Records Act, which required presidents to turn over everything. Jason Baron is a senior former official at the National Archives, and I spoke to him about this.

JASON BARON: No president has the right to retain presidential records after he or she leaves office. And so it is an extraordinary circumstance if presidential records are found in a former president's residence or anywhere else under his control.

RASCOE: Many ex-presidents write memoirs. What if a former president wants some documents - not classified documents, but just something to refresh their memory?

MYRE: Well, the National Archives makes special allowances for ex-presidents. They can request specific documents and will almost certainly get them temporarily. It's like checking a book out at the library. A president can borrow it, but he can't just take it and keep it. For most everyone else, even top aides to a former president, they have to go to the Archives and see the documents there. They can't take them out. In one notable case, Sandy Berger, who'd been a national security adviser to President Clinton, was caught smuggling classified documents out in his pants, and he was eventually fined $50,000.

RASCOE: That's NPR's Greg Myre. Greg, thank you.

MYRE: My pleasure. Transcript provided by NPR, Copyright NPR.

Greg Myre is a national security correspondent with a focus on the intelligence community, a position that follows his many years as a foreign correspondent covering conflicts around the globe.