Are Presidential Records Government Property?

Former Vice President Mike Pence | Image by New York Times

Former Vice President Mike Pence asserted that he did not remove any classified documents after leaving office in 2021.

“No, not to my knowledge,” Pence clarified when asked by the Associated Press if he took any classified information with him.

The question was asked following the FBI’s raid on former President Donald Trump’s Mar-a-Lago residence.

As reported by The Dallas Express, the raid was motivated by the recovery of allegedly classified documents held in violation of the Presidential Records Act.

The Presidential Records Act came as the result of one of the most significant presidential scandals in recent history.

After Watergate and the resignation of former President Richard Nixon, Congress began to take steps to regulate how presidents handle documents. In 1974, Congress passed a law targeting Nixon specifically, and a legal battle ensued.

The disagreement made its way up to the U.S. Supreme Court, which decided in 1977 that Congress had the authority to legislate the handling of presidential records.

Chief Justice Warren Burger denounced the ruling in his dissent against the 7-2 majority opinion, writing, “the Court’s holding is a grave repudiation of nearly 200 years of judicial precedent and historical practice. That repudiation arises out of an Act of Congress passed in the aftermath of a great national crisis.”

Justice William Rehnquist dissented even more forcefully, suggesting that the majority decision was “so at odds with … previous case law on the separation of powers, [that it] will daily stand as a veritable sword of Damocles over every succeeding President and his advisers.”

For centuries before the 1977 decision, the documents created during a presidency were considered the president’s private property. It was not until former President Franklin D. Roosevelt that any president voluntarily produced records.

The Presidential Records Act was passed in 1978 to solidify Congress’ claim to ownership of documents created or received by the president and the executive branch.

Congress had previously passed a law in 1955 to encourage presidents “to donate their historical materials to the government” but did not assert that those documents were, by right, owed to the government. However, Watergate prompted Congress and the Supreme Court to declare presidential records government documents.

Concerns about the Presidential Records Act have been raised throughout Trump’s administration. Still, courts have generally suggested that the law allows for very little recourse if a president disregards it.

Ultimately, “the President has a high degree of discretion over what materials are to be preserved,” according to a Congressional Research Service report.

Regardless, a legal showdown over the tension between executive privileges and the legislative branch’s power to control how the executive branch functions may be on the horizon.

Support our non-profit journalism

1 Comment

  1. Pat

    Government Officials, ALL Politicians and their various administrations, are hired by the PEOPLE of the UNITED STATES. Ergo, any and all documentation, papers, correspondence, artifacts, etc. that pertain to their work in the capacity of their line of work are the PROPERTY of the PEOPLE of the UNITED STATES !
    If said artifacts, etc are classified, of National Security, then those items should be held in the utmost security. And not some closet of someone’s private residence, no matter WHO they are, whether POTUS or Janitor at a Public Library !


Submit a Comment

Your email address will not be published. Required fields are marked *