National Archives Warn Exiting Biden Staff Against Taking or Trashing Data
“Do not remove federal records and information when leaving office”
The National Archives is warning Biden administration officials not to take any government records with them on the way out the door, and not to destroy records that may be useful to future historians or to the incoming administration.
The issue has posed legal and political problems for previous administrations both Democrat and Republican. At least two laws—the Federal Records Act of 1950 and the Presidential Records Act of 1978—govern the issue.
Those statutes present a dilemma to Biden administration officials in the waning days of the administration. If the officials break the law by taking the records home or improperly purging them, they risk ending up like Hillary Clinton, Joe Biden, or Donald Trump—the subject of a highly publicized and legally perilous investigation. If the Biden administration officials leave the records behind for the incoming Trump team, they risk them being subjected to searches by incoming Justice Department and FBI officials fishing for evidence of misfeasance or malfeasance that could also provide a basis for criminal investigations or hostile congressional hearings.
Bitter, protracted legal and political fights over who owns the materials of an outgoing administration have been going on for half a century, since 1974, when Congress passed the Presidential Recordings and Materials Preservation Act attempting to distinguish what was Richard Nixon’s and what was the federal government’s. Nixon and his estate fought the government about it until a settlement was reached in June 2000.
In 2003, President Clinton’s national security adviser, Sandy Berger, was caught removing classified documents from the National Archive, a crime to which he eventually pleaded guilty.
In July 2016, then FBI-director James Comey announced findings from an investigation into Hillary Clinton’s handling of emails while Secretary of State. He said Clinton’s lawyers “deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” A Republican congressman, Trey Gowdy, said the lawyers had deleted the files using a tool known as “BleachBit,” inspiring puns about “Wash-ington.”
When documents from Biden’s term as vice president showed up in his Delaware garage, it prompted a special counsel report by Robert Hur that described Biden as an elderly man with poor memory. And when documents from Trump’s term showed up after his presidency at Mar-a-Lago, special counsel Jack Smith obtained a 38-count federal indictment of Trump and an aide.
All that might suggest the Biden officials would be better off leaving everything behind. But Trump’s nominee for FBI director, Kash Patel, is being urged by some activists to exact retribution on the Biden administration for its “lawfare” against Trump and his loyalists. Sifting through Biden-era emails and text messages for evidence of possible wrongdoing might be part of such an effort, making outgoing administration officials highly motivated to depart with “email box zero.” There’s even speculation about Biden trying to offer his staff pre-emptive pardons to protect against potential Trump administration-initiated retaliatory prosecutions.
Navigating in the middle of it all is the National Archives and Records Administration, which tries to be nonpartisan. It is such a part of the Washington establishment that David M. Rubenstein, the Carlyle Group cofounder and former Carter administration official, gave an affiliated charity $13.5 million to name the David M. Rubinstein Gallery, in which is exhibited his personal copy of the Magna Carta from 1297.
The archivist of the United States, Colleen Shogan, began warning about the issue on the eve of the 2024 election, sending an October 28, 2024 memo “To: Heads of Federal Departments and Agencies” with the subject “Federal Records Management During Presidential Transition.”
“Records management takes on increased importance during transitions,” Shogun wrote. “The ability to capture and share records and information is paramount to ensuring a smooth transfer of power.”
“Federal records may protect the rights and interests of the public, allow officials to be held accountable for their actions, and document our nation's history,” she wrote, noting that “Both offboarding and incoming federal staff, including political appointees, have roles and responsibilities in the management of federal records.”
She enclosed a copy of “records management guidance for political appointees.” It reminds the staffers that records are not only paper documents but also “email and any other type of electronic messages (such as chats, texts, direct messages), presentations, office documents, photographs, calendars, and other electronic files.”
“When leaving federal service,” the guidance warns, “Ensure federal records and information are available to your successor…Do not remove federal records and information when leaving office.”
The Archives and Records Administration followed up with a series of three blog posts. “Be aware that federal emails and e-messages are government property,” one of the posts, dated November 5, 2024, warns. Another post, published November 8, 2024, notes, “keep personal materials separate from official accounts or systems to avoid the laborious and difficult task of reviewing voluminous materials when leaving the agency. Likewise, it is imperative that any business-related electronic messages created or received outside agency systems are captured in agency systems.” It also notes, “Questions related to determining whether or not documentary materials are Presidential records should be referred to the White House Counsel.”
Another guidance document circulated electronically reminds Biden officials, “On January 20th at the end of the President’s final term, the Presidential records of the Administration are automatically transferred to the legal custody of the Archivist of the United States and the National Archives and Records Administration.”
Thank you: The Editors is supported not by a $13.5 million donation from David Rubenstein but rather by readers like you. If you can spare the $8 a a month or $80 a year, please become a paying customer today to ensure your continued full access, support our independent journalism, and sustain our growth.