Keeping presidential documents was legal until 1978. How law applies to Trump, Biden
U.S. presidents were previously allowed to keep presidential documents after leaving office — as they were considered personal property.
But a law passed in 1978 changed the rules. Since the passing of the Presidential Records Act of 1978, presidential and vice presidential papers have been government property, making it illegal to hold on to them once presidents and vice presidents end their time in the White House.
There are two separate ongoing Justice Department investigations into how President Donald Trump and President Joe Biden handled classified documents. These investigations are being led by special counsels appointed by the department.
Most recently, documents from Biden’s time as vice president were found by the Justice Department during a 13-hour search of his home in Wilmington, Delaware, on Jan. 20, after his personal attorneys had found Obama-Biden Administration records with classified markings there in late 2022, according to a statement from Biden’s personal attorney Bob Bauer.
Biden’s personal attorneys had also found classified papers in a closet at the Penn Biden Center in Washington, D.C., in November, according to the White House.
Before any classified documents involving Biden were found, the FBI raided Trump’s Mar-a-Lago home in Florida where they seized classified documents taken from the White House in August after being repeatedly assured no such documents would be found at the former president’s residence, according to the Associated Press.
Here’s what to know.
Why was the Presidential Records Act of 1978 passed?
The Presidential Records Act was enacted on Nov. 4, 1978, as a direct response to former President Richard Nixon and the Watergate scandal.
The law, passed after Nixon sought to destroy his Oval Office recordings, provided “broader authority for records preservation” that aimed to prevent future presidents from trying to discard documents now deemed as belonging to the public.
Once a president leaves office, presidential records must be handed over to the National Archives under the law. The same rules apply to any vice presidential records.
Dozens of classified documents were found at former Vice President Mike Pence’s home in Carmel, Indiana, last week, his attorneys said on Jan. 24, CNN reported. The National Archives was notified and now those records are under the possession of the FBI, according to the outlet, which reports “it is not yet clear what the documents are related to.”
Presidential records refers to any “documentary material”— including books, memos, documents, papers, pamphlets, photographs, recordings and more — created or received by a sitting president or his staff, the law says.
Documents associated with Biden
Joseph Fitzpatrick, the assistant U.S. Attorney of the Northern District of Illinois, confirmed in a statement to McClatchy News that “the FBI executed a planned, consensual search” of Biden’s Wilmington home on Jan. 20.
Biden’s attorneys offered the Justice Department the opportunity to search the president’s home after they “unexpectedly” discovered Obama-Biden records at the Penn Biden Center on Nov. 2, according to a statement from Bauer provided by the White House.
The National Archives and Records Administration was then notified and the Justice Department was alerted.
On Dec. 2 and Jan. 11, Biden’s personal attorneys found more records with classified markings inside his Wilmington home, according to Bauer.
As a result, Attorney General Merrick Garland announced the appointment of a special counsel to investigate the matter on Jan. 12.
During the FBI’s search of Biden’s home on Jan. 20, agents found and took “six items consisting of documents with classification markings and surrounding materials, some of which were from the President’s service in the Senate and some of which were from his tenure as Vice President,” Bauer said.
He added that the Justice Department also took some handwritten notes dating back to when Biden was vice president.
“Since the beginning, the President has been committed to handling this responsibly because he takes this seriously,” Richard Sauber, the special counsel to the president, said in a statement.
Documents associated with Trump
On Nov. 18, Garland announced the appointment of a special counsel to investigate classified documents and presidential records connected with Trump.
About a year after Trump’s presidency ended, a Trump official told the National Archives and Records Administration that presidential records were discovered at Mar-a-Lago, according to the Associated Press. Before FBI agents conducted a raid of his home in August, Trump swore that “all government records had been returned.”
As a result of the search, FBI agents seized 33 boxes from Trump’s home, according to the Associated Press.
About 100 documents found at Trump’s home were marked as classified, according to Reuters. Trump later said he had declassified the documents, something he claimed a president could do just by “thinking about it.”
A new ABC News/Ipsos poll revealed most Americans surveyed, 77%, believe Trump acted inappropriately in his handling of classified documents after his presidential term ended, McClatchy News previously reported.
In comparison, most surveyed, 64%, also believe Biden acted inappropriately over how he handled the documents.
On Jan. 23, Garland was asked if the Justice Department is handling the separate special counsel investigations of classified documents associated with Trump and Biden fairly.
In response, Garland said “the department has a set of norms and practices… We do not have different rules for Democrats or Republicans, different rules for the powerful and the powerless, different rules for the rich or for the poor. We apply the facts and the law in each case in a neutral, nonpartisan manner.”
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