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Aughie and Nia start the new season with a discussion of recent Presidential records issues.
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: I'm lovely. Thank you.
N. Rodgers: I was just going through some papers in my house and realized that I have the nuclear codes. I was thinking that might not be a bad thing, and I probably should look into something about doing something with that. They were in a closet. It's hardly ever used.
J. Aughenbaugh: Why?
N. Rodgers: In a file named personal.
J. Aughenbaugh: Nia.
N. Rodgers: I can't with this Aughie you going to help me. You have to help me understand, first of all, what the argument is, but also how is this happening. How is this? This is crazy.
J. Aughenbaugh: What Nia is referencing.
N. Rodgers: But D is ranting about?
J. Aughenbaugh: Okay, is the front.
N. Rodgers: Let's be honest, it's a rant.
J. Aughenbaugh: Okay. This is one of our news episodes, and what Nia is referencing is at the time that we are recording this, we are a couple of weeks removed from reports and confirmation by the Biden presidential administration that Joe Biden after he served two terms as Vice President. He and I love this word, this is a direct quote from the president. He inadvertently to a classified documents to both his research center and then my favorite his garage at his home will lead to Delaware.
N. Rodgers: Yeah. Part of me wants to know why he was reading documents in the garage. That's a whole separate question, but what this really the reason this is in the news in part is because of former President Trump's issues with papers being found at Mara Lago, which is his residents in Florida, which is also a hotel and golf resort.
J. Aughenbaugh: Yes.
N. Rodgers: What's can I just say, can we just skip to something that I need to say out loud?
J. Aughenbaugh: Yes.
N. Rodgers: Right away, which is both of these people were stupid. Both of these people, when they moved out of their previous apartment, took a bunch of crap they shouldn't take that belong to the owners of the apartment and left a bunch of crap they probably shouldn't have left. I get that moving is hard. I'm a person who is moved many times in my life, and regularly things get misplaced. They get stuck in something where you don't even realize they're there and then you go, crap I didn't know I add this or whatever. I think that we need to be having a civil conversation about this, which is that it is human for this to happen. There to be things that you are in possession of, that you should not be in possession of anybody who's ever moved out from a roommate and then found a bunch of their CDs later. It's like, man, that is not a good look because it looks like I took their CDs intentionally, even though I'm just a dork.
J. Aughenbaugh: The way the press is covering both of these situations, the Trump situation and the Biden situation completely ignores the fact that we have had basically successive presidents who have struggled with what to do with government documents in communication after they have left office.
N. Rodgers: What's really stupid about that is we have a process.
J. Aughenbaugh: Yes.
N. Rodgers: There is a process. There are rules. There's rules to this.
J. Aughenbaugh: In fact, listeners, what Nia is referencing is the fact that in 1978, Congress passed and President Jimmy Carter signed into law the Presidential Records Act, the PRA.
N. Rodgers: Why did they pass that?
J. Aughenbaugh: This was in response to former President Richard Nixon when he resigned, basically in disgrace from the Office of President. Nixon basically wanted to take all of his records, including the infamous tapes of his conversations in the Oval Office with him.
N. Rodgers: He deemed them personal property, not presidential?
J. Aughenbaugh: Yes.
N. Rodgers: Because frankly, if a president touches something, it is owned by the United States.
J. Aughenbaugh: That's the view with this law.
N. Rodgers: Okay.
J. Aughenbaugh: Before Nixon, the practice of nearly every president in our country's history was when they left office, they got to take basically whatever record, communication, or a document that they wanted.
N. Rodgers: Like for their presidential libraries, their personal use or.
J. Aughenbaugh: Yeah, Nixon's claim was not unusual, but what was unusual was that it was President Nixon making that claim, and what went on during his presidential administration.
N. Rodgers: That made him look KG-like.
J. Aughenbaugh: Yeah.
N. Rodgers: I want to keep all my stuff because I don't want anybody to didn't know what I did.
J. Aughenbaugh: Yeah.
N. Rodgers: He was facing legal. Wasn't he facing legal concerns when he left office?
J. Aughenbaugh: He was an indicted conspirator in the grand jury that was put together by the White House special prosecutor.
N. Rodgers: There were some questions in his mind, at least about his rights as a defendant.
J. Aughenbaugh: Yes.
N. Rodgers: To have access to his papers and to prevent other people from having access to his papers that might make him look more guilty or prove his guilt.
J. Aughenbaugh: But Nia to your point, the PRA lays out a process. After the law was passed, starting with the Reagan administration, because it didn't go into effect with President Carter. He basically one defines all presidential records as public. Who acts on behalf of the public? What government office Nia? One of your favorites.
N. Rodgers: The National Archives?
J. Aughenbaugh: Yes.
N. Rodgers: There are so many that should act on behalf of them, but yeah, National Archives.
J. Aughenbaugh: When an incumbent president, one that's about ready to leave office has to dispose records that no longer have administrative, historical, informational, or evidentiary value, he first has to get the view of the archivist of the United States on how those records may be disposed, and even still.
N. Rodgers: The archivist has to give him permission?
J. Aughenbaugh: Yes.
N. Rodgers: To destroy all of his lunch orders?
J. Aughenbaugh: Yes.
N. Rodgers: That he's kept in a folder in his desk drawer.
J. Aughenbaugh: Moreover, the PRA also carves out an exception in regards to FOIA requests. Let's just say, for instance, Donald Trump leaves office, and immediately scholars want to go ahead and explore what led him to try to make a deal with the Ukrainians in regards to putting pressure on blah, blah, blah. Remember that whole fiasco?
N. Rodgers: Hunter Biden.
J. Aughenbaugh: Yeah, so what this ends up doing is that a president can go ahead and say to the archivist, this is sensitive material or could possibly be used against me, and I want an exception to the Freedom of Information Act, and it's five years after the administration leaves office.
N. Rodgers: Okay, so it gets embargoed?
J. Aughenbaugh: Yes.
N. Rodgers: Okay.
J. Aughenbaugh: Now, where President Biden is running into problems is the PRA applies to both presidents and vice presidents, and the assumption of the law is the default position is that all of their papers are the legal custody of the archivist. If you are a president or a vice president and you want to keep some papers, you have to convince the archivist.
N. Rodgers: Which makes sense, because we don't want people secreting things that make them look bad. In part because frankly, scholars need to have access to the full spectrum of a president's thinking if they can get it. If they want to understand, they need for stuff to not be particularly hidden from them. Also, if you think that there's going to be accountability, it might keep you from doing certain things that you might have done otherwise if you were all hell-bent on whatever. You might say, yeah, but someday somebody's going to be able to get a hold of these records. Let's be careful about this.
J. Aughenbaugh: Yeah. But here's the kicker, Nia. Is there any punishment for violating this law?
N. Rodgers: I can't imagine that there's any enforcement.
J. Aughenbaugh: Well.
N. Rodgers: Like, I don't think the archivist has an army of archivists, although I know people who've had signed up. The archivist probably gets to say things like, Hey, I said give me those several times. Then I guess in terms of President Trump, they sent the FBI to go get stuff.
J. Aughenbaugh: You're correct the archivist or the archivist.
N. Rodgers: Yes, they complain to the FBI.
J. Aughenbaugh: Well, in the case of Trump, this went back and forth for nearly a year and a half.
N. Rodgers: That is something that's being talked about in the news, is the difference between the handling of these stressors because I guess what happens is the archivist sends a letter to the lawyer of the President and says, Hey, we think that these documents are missing. There seems to be a gap in the record.
J. Aughenbaugh: Yes.
N. Rodgers: We don't have the daily diary for this day and this day, could you see if the president has that? Then the lawyer says to the president, hey you have that. Now, my guess is with Donald Trump, and I'm just, I'm guessing that he was so disorganized, but at first he probably said, I don't know. The lawyer took that as no.
J. Aughenbaugh: Then what probably happened next? Again, I'm just guessing, but based on Trump's behavior in office as president, is that once he said, I don't know, and the lawyers said, "Well, we are still getting requests from the archivist." Donald Trump basically went ahead and said, "I don't have to put up with this stuff. I'm not tightly knit over.".
N. Rodgers: He dug in.
J. Aughenbaugh: He dug in because that's Trump.
N. Rodgers: Because his personality wise is to dig in. If you push, you're going to get he's going to dig in a little bit. Oh, wait. I have a question.
J. Aughenbaugh: But with regards to punishment, there's no punishment for violating the PRA, but there are other federal laws to where if you mishandle classified documents, you could face a fine and up to three years in prison.
N. Rodgers: The archivist would be the one that we'd probably trigger that investigation. They would probably say to the FBI, hey, we don't have these records and we think that the President has them. Can you investigate to see if there has been a mishandling of the records? But my guess is that that doesn't happen right away. There's probably a very long push poll between an archivist and the president trying to get this settled before the archivist has to go to the FBI. Don't make me go to the head, please don't make me go to the FBI. It's paperwork I got to fill out.
J. Aughenbaugh: That's what happened with former President Trump. Then you add that big flashy raid.
N. Rodgers: Of storage containers. Then they put documents on the floor and took pictures of them because they liked drama because they all think they're in some CBS night-time drama FBI, the real world, or whatever.
J. Aughenbaugh: Yeah. Hey, we're documenting this just in case this ever does go to trial. Like this is ever going to go to trial.
N. Rodgers: To be straightforward, this is a silly thing to put somebody in jail over unless you catch them doing espionage. Now if the President, any President had taken a document and sold it to someone else, say, Oh, I don't know, Putin or whoever. That's an entirely different. But I don't think that's the argument that's being made in either case, in either Trump or Biden. I don't think either one of them is being accused of espionage. I think they are being accused of being disorganized old guys.
J. Aughenbaugh: Yes.
N. Rodgers: I'm just going to say and I'm not trying to be ugly here, but you're not an old guy yet. I'm looking at your background which the listeners cannot see because sadly they do not have CO vision on this podcast. You have what I like to think of as organized chaos behind you.
J. Aughenbaugh: Oh, yes.
N. Rodgers: That's you in your book rooms, seats/CD room.
J. Aughenbaugh: Yes.
N. Rodgers: There's probably some papers in there that you may or may not know that you have.
J. Aughenbaugh: Oh, hey, there's an entire section of this room that has all of them Mackenzie's artwork from the time she was four years old. In that growing pile of artwork.
N. Rodgers: May or may not be classified documents. Now, the problem here that comes in, I think in this discussion and the reason that it's been so roiling in the public sphere is that Donald Trump dragged his feet and said, "I don't have these documents. Even if I did have these documents, I'm not giving them to you. Even if I have to give them to you, I'm not going to." He basically, Joe Biden took the different tag of screaming like an eight-year-old girl running to the Department of Justice and throwing things all over them to basically say, here, here, here I had it, I had it. I'm sorry, that's my bad. It's my bad. I'm not saying Biden, I'm saying Biden's lawyers did that because nobody is actually talking directly to the president archivist. The President had probably never had even the least bit content. The archivist has lawyers that talk to the lawyers for the President. These people would not be able to pick each other out of a lineup. That's not.
J. Aughenbaugh: Again, listeners, there are fundamental differences between the Trump situation an the Biden situation.
N. Rodgers: But before we get to that, can I ask you a question about the PRA? Does it apply to legislators and Supreme Court justices, or is it just the president?
J. Aughenbaugh: Just the president.
N. Rodgers: Even if those groups of people have had interactions with the President, it doesn't apply to their documents.
J. Aughenbaugh: That's correct. I've actually said this to students because I've been getting questions about this in class. I'm like guys, do understand that the PRA applies to the President? Members of Congress, and the Supreme Court justices, they basically can do whatever the heck they want to with their personal papers that have been generated while they've been serving in these positions.
N. Rodgers: But I guess when I met was like once where they were directly dealing with the president. They are still it's on the President's end of that.
J. Aughenbaugh: Yes.
N. Rodgers: But it has to be protected not because I feel certain that Nancy Pelosi had more than one classified record discussion with the presidential administrations of many presidents. But it would not be on her end, but that would be protected. It would be on the presidential end.
J. Aughenbaugh: That's right, correct.
N. Rodgers: Okay.
J. Aughenbaugh: There are some fundamental differences here. Notwithstanding the Republicans in the United States Congress, specifically the house, trying to go ahead and say, well, what about President Biden?
N. Rodgers: What about ism?
J. Aughenbaugh: Yeah. Seemingly from what's been reported, both Biden and Trump violated the law. You can go ahead and say, technically, that is correct.
N. Rodgers: I think that's true. They both took stuff they weren't supposed to take.
J. Aughenbaugh: Yes.
N. Rodgers: Accidentally on purpose, doesn't matter.
J. Aughenbaugh: It doesn't matter.
N. Rodgers: They both ended up with documents they should not have ended up with in their private.
J. Aughenbaugh: Nia, if you read the PRA intent is not discussed in the law.
N. Rodgers: Course not. Why would we cover that? Going back to let's write this as vaguely as possible.
J. Aughenbaugh: Yeah, because to a certain extent, the Democrats in 1978, we're trying to make a point that they were the more ethical, more responsible, cleaner political party than the Republicans that were led by Richard Nixon for six-plus years. Well, that wouldn't be a difficult standard folks.
N. Rodgers: The bar is actually laying on the ground. All you got to do is step over it.
J. Aughenbaugh: Even I might jump over that bar. Even after seven knee surgeries, I'm getting high off the ground. But nevertheless. Nia, as you pointed out, Trump seemingly, when he was faced with the requests, his basic response was, I don't have to turn this stuff over. These are my records. Sorry. Former President Trump. You're wrong.
N. Rodgers: You do not own the papers of the people?
J. Aughenbaugh: Yes. Biden on the other hand came out.
J. Aughenbaugh: Basically just seemed to be ignorant because he's basically gone ahead and claimed in a couple of press conferences that he didn't know he had them.
N. Rodgers: I'm not sure that's better. I don't know which is worse. Let's just be equally fair/unfair to both of these presidents and that is to say, I'm not sure whether ignorance is a better claim or abstinence is a better claim. Both of them are embarrassed about this mistake and they are dealing with it in different ways.
J. Aughenbaugh: Yes, and the Democrats have tried to claim, Nia that the Biden administration, when they found out, when President Biden's lawyers found out, they notified the Justice Department that they had these papers.
N. Rodgers: Listeners, Aughie and I we're joking the other day that in fact what they did was send their fastest runner with the papers over to the Department of Justice saying we're sorry. Get these out of the way from us. They were very upfront and they've been upfront even more, even though it's embarrassing to the president. They've been upfront that oh, and by the way, there were some in the garage. I feel certain that at some point they're going to say there were some in the doghouse. They are being very transparent about having found them and then turning them over to the archivist.
J. Aughenbaugh: Yes, what has become a stumbling block for the buying presidential administration is when were they found?
N. Rodgers: When was it announced?
J. Aughenbaugh: When was it announced?
N. Rodgers: Because they turn them over to justice really early after they were found, but that was the day before the foul elections.
J. Aughenbaugh: Before the foul elections.
N. Rodgers: Now it looks like they were announced because that might or might not tip the election in some way. Although, I would argue that this election was, I don't know that that would have had a huge, but it does look bad.
J. Aughenbaugh: It looks terrible.
N. Rodgers: It may have been bad. I mean, it may have been that that was the thinking in which case, no-go for you Biden, That's not cool. Actually more Merrick Garland, I guess.
J. Aughenbaugh: Well, and this is where I was going to go next. This is the point that I wanted to conclude this particular in the news episode. Of all the people in Washington DC right now, who are really hating life.
N. Rodgers: Oh my God, Poor Merrick Garland.
J. Aughenbaugh: Merrick Garland has got to be just.
N. Rodgers: First of all, Merrick Garland, remember when he was nominated for the Supreme Court.
J. Aughenbaugh: Court.
N. Rodgers: He got bounced and everybody at the time said Merrick Garland is a bowl of tapioca pudding. He could not be more blend, bloom. He is full of math. His entire demeanor is, everything's going to be fine because we're just going to remain calm. He reminds me in some ways of Ben Bernanke. Just remain calm and we'll figure it out. Now, people keep handing him things that are on fire.
J. Aughenbaugh: Yes.
N. Rodgers: Here, sir. Here's the thing that's on fire and he's the guy who's like, don't give me things that are on fire. I don't want things that are on fire. I want nothing to be on fire during my tenure.
J. Aughenbaugh: Because right now in his listeners, if you're not following where we're going with this, Merrick Garland has been forced to appoint two special counsels.
N. Rodgers: Some ages go their entire career and not have to do even one.
J. Aughenbaugh: One, he appointed Jack Smith to investigate what happened with Trump's handling of classified documents after he left office. Then he just appointed Robert Herr as special counsel to investigate President Biden's handling.
N. Rodgers: Which he does need to do. That's a fair thing. You got to be balanced.
J. Aughenbaugh: I mean, because he's had to do this. Because if he wants his office to appear to be impartial, he has to have the investigations outside of his office because there's a really good chance listeners, that Joe Biden and Donald Trump are the presidential candidates of the Democratic and Republican parties respectively in 2024.
N. Rodgers: I mean, yes. Although this could take them both down, which would be interesting.
J. Aughenbaugh: But nevertheless, I mean, Merrick Garland is going to be like.
N. Rodgers: He has to be completely transparent aboveboard. Everything has to be so open then he cracks up in his skull and lets people look at his cranium because otherwise he's going to be accused by a very partisan house of hiding things. Especially now that we're gearing up for the great hunter Biden investigations, which we will be bringing to you in the news in the future as they get rolling. But I'm sure that he wants to make sure that he cannot be accused of putting his thumb on the scale.
J. Aughenbaugh: Yes.
N. Rodgers: Really, what it comes down to is moving is horrible.
J. Aughenbaugh: I try to remind my students if you are critical of Trump or your critical of Biden. Understand that pretty much every presidential administration after the PR is run into problems with this.
N. Rodgers: You know why? Think about the amount of paper you accumulate as a regular person in the world. Now think about the amount of paper that you accumulate as President of the United States.
J. Aughenbaugh: The big issue, Nia has been electronic mail, email.
N. Rodgers: Oh, that makes sense. That would be a really hard thing to manage.
J. Aughenbaugh: This was an issue with Reagan, Bush 41, Clinton big time, Bush 43
N. Rodgers: Obama.
J. Aughenbaugh: Obama, I mean, think about, for instance how maybe the outcome of the 2016 presidential election got affected by the fact that former Secretary of State Hillary Clinton didn't know the difference or the requirements of law in regards to receiving and storing classified documents on a personal email server. I mean, if there's anybody who knows the law, it was Hillary Clinton and even she screwed up. We have to put this in context.
N. Rodgers: We really need to give ex-presidents a little bit of grace on this or current presidents a little bit of grace on this and here's why. Have you ever had a friend help you move?
J. Aughenbaugh: Oh, good Lord.
N. Rodgers: Then how long did it take you to even find all your stuff?
J. Aughenbaugh: Nia.
N. Rodgers: It doesn't matter that it's in your new domicile, but it's in a box under some stuff wrapped around a thing.
J. Aughenbaugh: Nia, I found a pizza cutter last summer that I had when I moved into this house six years ago. It's a gutter.
N. Rodgers: Would have been handy to have that all along, wouldn't it?
J. Aughenbaugh: Because I was just like whatever happened to that pizza cutter? I found it in a box up in the attic that I labeled. What was I doing throwing in a pizza cutter in a box of Christmas decoration?
N. Rodgers: Exactly. Aughie and I having moved many times in our lives, we have sympathy for both presidents and we have sympathy for all the people who have to deal with these documents because it's not this simple. It's not as simple as there's a list of documents and we will check them off, put them in a folder, hand into the archivist and call it good. It's just not that cut and dried.
J. Aughenbaugh: In records management. Nia, you and I can go ahead and share stories about how there are rules about records management that were pretty much created by people who never have to maintain records.
N. Rodgers: You'll delete that after 30 days. No, I won't because I probably wouldn't have gotten to it for 30 days.
J. Aughenbaugh: Thirty days it's still in my inbox. You want me to delete it? I may have read it for 15 seconds and hoped that the problem would just magically go away.
N. Rodgers: What we're saying to both President Biden and President Trump is, we feel you brother. We feel your pain.
J. Aughenbaugh: We know that your opponents are going to make political hay out of this for months.
N. Rodgers: They shouldn't, because they have also been guilty of this.
J. Aughenbaugh: But at the end of the day, I'm not going to say it's much ado about nothing because we shouldn't have classified documents just floating around.
N. Rodgers: In people's garages or in storage rooms or wherever.
J. Aughenbaugh: But at the end of the day okay. Maybe we should go ahead and hire additional staff in the archivist office to basically go ahead and educate our outgoing presidents and vice presidents, this is what you need to do and if you don't want to be politically embarrassed for months, if not years after you leave office, follow the rules.
N. Rodgers: Alternatively, an archivist moving team like 40 guys that come in and they pack up all this stuff and they know exactly what to look and they're like nope, yep and they put them in nope boxes and yep boxes and the yep boxes go back with them to National Archives and nope boxes are packed professionally and ready to go off to the President's library and there you go.
J. Aughenbaugh: There you go.
N. Rodgers: I'm just saying and they can make a lot of money in-between presidents like working on other, like when legislators retire, they could go in and do stuff like that. I'm just saying, I may have come up with a new business model. Thank you, Aughie.