National Archives Warn Exiting Biden Staff Against Taking or Trashing Data

“Do not remove federal records and information when leaving office”

A federal indictment of President Trump included photographs of presidential documents being stored post-presidency at Mar-a-Lago in Palm Beach, Florida.

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.”