CNN Makes False Claim Regarding Presidential Records Act and Trump

In a recent article¹ titled "Fact check: Trump falsely claims Presidential Records Act requires prolonged ‘talk, talk, talk’ over returning documents" CNN falsely claims Trump made a false claim.

The Claims

CNN claims that president and current presidential candidate Donald Trump continues to inaccurately described the Presidential Records Act stating that Trump said the following n Fox News.

“It says you are going to discuss the documents,” Trump said. “You discuss everything – not only docu– everything – about what’s going in NARA, et cetera, et cetera. You’re gonna discuss it. You will talk, talk, talk. And if you can’t come to an agreement, you’re gonna continue to talk.”

CNN claims that Trump said the 'very specific' Presidential Records Act actually requires extended talks with the National Archives and Records Administration and then issues a verdict that this is false and that Trump made a false claim.

Trump’s claims are false. The Presidential Records Act says that, the moment a president leaves office, NARA gets custody and control of all presidential records from his administration. Nothing in the act says there should be prolonged “talk” or a negotiated “agreement” between a former president and NARA over a former president’s return of presidential documents – much less that there should have been a months-long battle after NARA first contacted Trump’s team in 2021 to try to get some of the records that had not been handed over at the end of his presidency.

Not only is this a misinterpretation of the Presidential Records Act by CNN and false, but it would also defy the laws of physics.   

The Facts  

CNN makes the claim that "the moment a president leaves office, NARA gets custody and control of all presidential records from his administration". Here is what the law actually says.

(g)(1) Upon the conclusion of a President's term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this chapter.²

No, NARA does not instantly gain custody of all presidential records, that is not physically possible, nor is it possible for a former Presidents staff to accommodate such a feat, rather it is a process of transfer of custodial responsibility over, and of, physical records.  

NARA does not gain exclusive authority over these records either and not for many years. 

The responsibly of custody, control, preservation of, and access to transfers from the President and/or the Presidents staff, to that of the Archivist. The Archivist then has the legal obligation to disclose the records, however, the restrictions of disclosure continue to be governed by the former President, or upon death, those designated by the former President to govern disclosure.     

It is the responsibility of NARA to obtain, collect, and deposit the material into a Presidential archives facility, also known as a Presidential Library, or other suitable government facility temporarily if the library is not available (the Trump Presidential Library has not been completed and has only an online presence)

Under that same section, the Archivist is given the authority to designate a director who will be given the responsibility of caring for the records. However, this is done after consultation with the former President. In other words, if the responsibility is designated by the Archivist to a director, this happens after there are... talks.

(g)(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.³

Margaret Kwoka, a law professor at The Ohio State University is misleadingly quoted by CNN referring to her statement that "The PRA is not a mandate for a talk". While technically accurate in explanation of regulatory purpose, CNN uses the quote to support the narrative of the PRA not requiring any communication with the former President which is absolutely false as evidenced by §2203(g)(2) of the PRA in addition to several other subsections. 

If the Archivist designates a director responsible for the case of Presidential records, the Archivist must consult the former President, however, this is not the only communication mandated by the PRA and CNN themselves list a other requirements for communication with a former President to which they claim inapplicability in regards to Trump. 

Neither of these sections of the act is relevant to Trump’s case, in which, prior to the FBI search in August: 1) an ex-president 2) possessed indisputably official records 3) at his own property, outside of NARA custody and 4) did not return these records even upon repeated NARA requests and a Justice Department subpoena. No part of the act suggests the federal government was supposed to continue engaging in “talk, talk, talk” with Trump in these circumstances.

While this statement is partly true in that neither of the communications CNN mentions apply to Trump's current situation, it is completely irrelevant and so are the four points made. 

There is no law stating these records have to be in the physical custody of NARA at this particular time, nor is there any law stating that the former President is prohibited from having these records at his own property during this timeframe. 

In fact, records are expected to be in the process of being transferred and categorized at this time. The Former Presidents Act⁴ indicates an expected period of 30 months (two and a half years) for these records to be transferred to NARA and/or the Presidential library. 

In section (b) of the Former President Act, compensation is not to exceed $96,000 per annum (salary cap) for staff⁵ of a former President. (See reference 5 for more information on office and staff budgets for former Presidents)

(b) The Administrator of General Services shall, without regard to the civil-service and classification laws, provide for each former President an office staff. Persons employed under this subsection shall be selected by the former President and shall be responsible only to him for the performance of their duties. Each former President shall fix basic rates of compensation for persons employed for him under this paragraph which in the aggregate shall not exceed $96,000 per annum, except that for the first 30-month period during which a former President is entitled to staff assistance under this subsection, such rates of compensation in the aggregate shall not exceed $150,000 per annum. 

Except for the first 30-month period during which a former President is entitled to staff assistance of rates up to $150,000.

That extension on the salary cap is for assistance for the review of Presidential records in connection with the transfer of such records to NARA or a Presidential Library during that 30-month period of time.  

“Allowances and Office Staff for Former Presidents” may be used to pay fees of an independent contractor who is not a member of the staff of the office of a former President for the review of Presidential records of a former President in connection with the transfer of such records to the National Archives and Records Administration or a Presidential Library without regard to the limitation on staff compensation set forth herein.

This statute clearly indicates an expectation of up to 30-months to review and transfer these records to NARA (or a Presidential Library).

This is not a provision of the law that explicitly allows this timeframe, nor is this a prohibition in the law that restricts activity to this timeframe, this is an expectation as it is written in the law over 40 years ago. Currently, there is no timeframe written in the law that extends, nor limits, the timeframe NARA or a former President has to complete this task.

CNN's claim of there being no expectation of "a months-long battle after NARA first contacted Trump’s team in 2021 to try to get some of the records that had not been handed over at the end of his presidency." is completely and absolutely false. Notably, this is not a "battle" either, this is a period of time during which NARA is responsible for collecting and categorizing these records while the former President s responsible for transferring and segregating these records. 

 

The United States District Court for the District of Columbia has jurisdiction over handling any disputes regarding these records.⁶ 

That said, the Presidential Records Act states unequivocally that the records of a former President shall be available to that former President, or anyone a former President designates as a representative.⁷

Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title— [...] (3) the Presidential records of a former President shall be available to such former President or the former President's designated representative.

 Regardless of where these records reside, Trump will always have access to them and so will anyone Trump wishes them to be disclosed to. 

Summary  

Former Presidents do not "return" records as insinuated by CNN, that Trump took something. Presidential records are under responsibility of a President during their term after which that responsibility is assumed by NARA and records are transferred, over time, from the President, to NARA. This is not an instantaneous or magical occurrence. 

The physical records have to be identified, categorized, and then deposited to an archival facility (usually either NARA or a Presidential Library) which is a lengthy process and why the expectation of completion is over two years, during which time the former President is allotted additional staff which exceeds normal salary caps for facilitating the transfer of these records. 

This process most certainly requires communication between a former President, or staff, and NARA which is evidenced by implicit law and plain common sense given the fact that physical records must be transferred from one entity to another.  

Moreover, there is no law stating where a President can and cannot store records, in fact the law states the President has exclusive custody and control over them and notably, these records were moved to Florida while Trump was still President.

The President shall remain exclusively responsible for custody, control, and access to such Presidential records... ⁸

At the end of the Presidents term this responsibility is assumed by NARA, but not exclusively, rather both access to (including representatives of the former President as desired), and legal disclosure of, these documents is retained by the former President (which notably requires communication contrary to CNN's belief).

CNN misinterpret statutes, ignore relevant statutes, and misuse quotations from legal experts to meet the narrative of a false claim. Regardless of whether this is intentionally disingenuous or ignorance, this is certainly a false fact check and a false claim by CNN.

Claim: "Trump falsely claims Presidential Records Act requires prolonged ‘talk, talk, talk’ over returning documents"

Fact Check Verdict:   FALSE CLAIM  

Claimant:  Daniel Dale

References:

1. CNN Article (Fact Check)
2. Archivist's assumed responsibility—18 USC §2203(g)(1)
3. Consulting a former President—18 USC §2203(g)(2)
4. The Former Presidents Act—Public Law 85-745 (3 U.S.C. § 102 note) (b)
5. Former Presidents are given an annual budget for office and staff and the current budget for fiscal year 2023 covering Carter, Bush, Clinton, Obama, and Trump is 5.2 million according to the General Services Administrations Fiscal Year 2023 Congressional Justification. 🗎 GSA 2023 (PDF Document)
6. Jurisdiction regarding disputes—18 USC § 2204(e)
7. Former Presidents access to records—18 USC § 2205(3)
8. A President's exclusive custody—18 USC §2203(f)
9. Image: FalseFactCheck.org