The investigation into Donald Trump’s possession of classified presidential records at his Mar-a-Lago residence will eventually reach a conclusion about whether laws were violated and criminal penalties apply. Buried far in the background, though, is another set of questions about the laws themselves—conferring rights and benefits on former presidents—and the related norms and practices that provide them with access to classified national-security information. The events of the past few weeks have made it clear that the current laws and norms governing former presidents’ access to classified material require reconsideration and reform.
[David A. Graham: Trump can’t hide from the Mar-a-lago photo]
Former presidents can obtain classified material from their own administration, and, as a matter of practice, only a request to the archivist of the United States is required. The current administration has no formal role in the matter, nor is there any prescribed process by which the intelligence community is consulted and given the opportunity to raise concerns. This access is afforded to former presidents who are now private citizens on the basis of seemingly unexamined assumptions about the role of, and even the respect and courtesies due to, past occupants of the Oval Office. And it is provided regardless of the reasons this material may be of interest or use to them.
What might those interests or uses be? Perhaps a former president wishes to have access to classified material while writing a memoir—to check facts in the interests of an accurate account of national-security decision making. It seems reasonable to accommodate requests for this purpose. But a former president may have other interests in the material, such as advancing their political activities or ambitions, or their business affairs. The law does not make any distinctions in affording its broad grant of access.
Relatedly, it is customary to treat a former president as eligible to receive the highest levels of classified information. An incoming president gains such access automatically on election to the office: It comes with the keys to the White House. It is bestowed, in effect, by the American electorate, but it then lasts forever. Again, why this should be so is not clear. If the current president wishes to brief a predecessor with classified information, this can be done on a case-by-case basis, through specific waivers granted for specific purposes.
Stranger still is that while a former president enjoys these rights and privileges, the Presidential Records Act (PRA) restricts the current president’s access to a former administration’s records, both classified and unclassified. Unless the former president grants access, the current president may access only records of the former president’s administration that are “needed for the conduct of [official] business” and “otherwise not available.” Former President Trump and his lawyers have already objected on this basis to the Biden administration’s access to the boxes voluntarily returned from Mar-a-Lago. The former president’s original filing seeking a Special Master asserted that under the PRA, a former president has “virtually complete control” of his administration’s records.
This claim will likely fail, because there is a strong case for the current administration’s access to the voluntarily returned boxes. But the oddity of the legal architecture behind the claim—indeed, that there is an issue here at all—suggests the need for reform.
[David A. Graham: The incredible vanishing Trump presidency]
At a minimum, upon leaving office, former presidents who seek to access classified materials should be subject to the same processes as any other person who seeks such access; that is, certifying under the penalties of perjury and in writing that there is a legitimate need for such classified materials, and acknowledging that the unauthorized dissemination of such classified information could result in grave harm to the national-security interests of the United States and be subject to criminal prosecution.
In addition, reform should create a role for the views of senior career intelligence officials on the risks posed by sharing with a private citizen, even a former president, information that, if mishandled and disclosed, could harm national security. This process can be tailored to the unique circumstances of a former president’s request, as in allowing for certain presumptions to operate in the former president’s favor: the writing of a memoir or preparation for participation in a diplomatic initiative requested by the incumbent. Should such an interagency intelligence-community review suggest that access be defined or modified, the question could be elevated to the current president for a final decision. And the access ultimately provided might be limited in location, to an appropriate U.S. government facility.
This process would not only serve the national interest; it would also be advantageous to former presidents. In their private life, they may not have at their disposal the resources to distinguish between appropriate and inappropriate information for the government to provide, or to ensure proper handling of all classified information. A former president seeking records in good faith would welcome this support, just as current presidents generally rely on such support for decisions about access or classification that bear on vital national-security interests. The process we expect an incumbent president to respect—as most have in the past—should be no less suitable for a former president.
Of course, it is salutary that former presidents occupy a unique place in our national life, able to turn their standing to good use in establishing charitable foundations and remaining ready to counsel or assist incumbents when called to do so. But they are private citizens and, upon leaving office, may resume the pursuit of private interests. The dangers of an imperial presidency are sufficiently serious: There is no need to tack on an imperial post-presidency.
