Washington, D.C., March 16, 2022 - Former President Donald J. Trump has the dubious honor of winning the National Security Archive’s infamous Rosemary Award for worst performance in open government in 2021; a remarkable achievement considering Trump was out of office for much of the year. During his time in office, Trump was widely reported to have both destroyed records and prevented their creation in the first place. Once out of office, Trump broke the Presidential Records Act (PRA) requirement that all of his official records immediately be transferred to the National Archives and Records Administration (NARA), denying the public its rightful ownership of his materials, and undermining congressional efforts to hold his administration accountable for events such as the January 6 insurrection.
The Rosemary Award, which the Archive began bestowing in 2005, is named after President Nixon's secretary, Rose Mary Woods, who testified valiantly that she had inadvertently erased 18 and ½ minutes of a crucial Watergate tape when she stretched to answer her White House phone with her foot still on the transcription pedal. Previous Rosemary Award “winners” include the CIA, the Treasury Department, the Air Force, the FBI, the Justice Department (twice), and Director of National Intelligence James Clapper.
Trump secured his spot in this hall of shame for his numerous offenses against federal and presidential records management rules. These include:
- Refusing to adhere to legal obligations to create and preserve records of meetings with foreign leaders. In perhaps the most serious instance, a complaint issued in a Citizens for Responsibility and Ethics in Washington et al. v. Donald J. Trump et al. lawsuit, alerted the plaintiffs to possible abuses of White House record keeping related to the phone call with Ukrainian President Volodymyr Zelensky;
- Routinely destroying presidential records. This brazen disregard for the most basic tenets of government accountability forced National Archives and Records Administration (NARA) officials to painstakingly tape them back together (although it is unknown how many important historical materials could not be retrieved);
- Flushing the evidence. White House residence cleaners had it worse than even NARA officials; reports indicate that White House employees and contractors found ripped-up records stuffed into toilets, including in the WH residence;
- Not stopping his staff from following his own bad example. White House staff used encrypted disappearing messaging applications that prevented the required preservation of communications in the White House’s recordkeeping system;
- Keeping the White House visitor logs hidden. The move prompted a Freedom of Information Act (FOIA) lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and CREW, which revealed that Trump actually ordered the Secret Service not to keep records of his visitors at the Trump properties like Mar-a-Lago; and
- Absconding with the evidence. Trump’s coup-de-grace in securing this award was taking 15 boxes worth of presidential records – some of which NARA confirms contain classified information – to Mar-a-Lago after he lost the election. Documents contained in the haul include the president’s “love letters” with North Korean dictator Kim Jong Un and a letter from President Barack Obama.
We didn’t know about (or even contemplate) Trump trying to flush documents down the toilets during his presidency, but we knew plenty was wrong. While Mr. Trump was in the White House, the National Security Archive sued him multiple times to defend records laws. Our lawsuits against the then-president and his disdain for record-keeping policies include:
- The National Security Archive et al. v. Donald J. Trump et al., filed December 1, 2020, which achieved a formal litigation hold on White House records that lasted all the way through the transition and Inauguration Day, and secured the preservation of controversial WhatsApp messages and a formal change in White House records policy. The lawsuit, filed with co-plaintiffs CREW, the Society for Historians of American Foreign Relations (SHAFR), and the American Historical Association (AHA), argued that Trump White House policy, which only saved screenshots of instant messages relating to government business – such as Jared Kushner’s negotiations with Saudi prince Mohammad bin Salman – failed to capture the complete record that the law required.
- The Archive, CREW, and SHAFR filed a lawsuit, Citizens for Responsibility and Ethics in Washington et al. v. Donald J. Trump et al., on May 7, 2019, to compel the White House to create and preserve records of the president's meetings with foreign leaders. A subsequent motion, filed on October 1, 2019, requested a temporary restraining order to compel the White House to preserve records of foreign leaders’ phone calls and meetings with the president, and records of White House record-keeping practices and policies. This won, on October 4, an order from U.S. District Judge Amy Berman Jackson to the White House to preserve all records relating to meetings and phone calls with foreign leaders, as well as all records on White House practices and policies for creating and keeping such records.
- Doyle v. DHS, filed April 10, 2017, by the Archive, the Knight First Amendment Institute at Columbia University, and CREW, sought to save the White House visitor logs. We were prepared for the Trump administration to discontinue the Obama administration's practice of posting the logs, and when it did, our suit argued that the Secret Service records vetting White House visitors were clearly agency records. The government argued that an earlier Merrick Garland opinion, plus a memorandum of understanding between the Secret Service and the Obama White House in 2015, established presidential control over the logs; government lawyers also admitted that the Secret Service was keeping no systematic records of visitors at presidential properties such as Mar-a-Lago. In the end, the courts – first District Judge Katherine Failla and then a 2nd Circuit appeals panel headed by Judge Guido Calabresi – chose to emphasize the potential burden on the presidency, ignoring the routine publication of the logs by the Obama White House, and ruled against the Archive in a series of holdings that illuminate the weaknesses of the Presidential Records Act. We were vindicated by the Biden administration's decision to resume posting the logs, but the holes in the PRA are still in dire need of closing.
We lost in court each time. We could say we told you so. But we’d rather say these losses actually illuminated the real holes in the law, the ones Mr. Trump drove his shredder through, the ones we better fix before he or another president does it again.