After the FBI’s seizure of documents from former president Donald Trump’s Mar-a-Lago estate, many Americans focused for the first time on the rules governing what a former president can do with government documents — especially classified ones. No one knows what Trump’s plans were, but he has tried to argue that he could have declassified information on his way out the door without following any process. “You’re the president of the United States,” he told Sean Hannity on Fox News. “You can declassify just by saying it’s declassified, even by thinking about it.” He’s also attempted to shift the blame by claiming that other presidents took classified documents with them when they left office.
Both theories are demonstrably false. The issue of handling classified information is one that all modern U.S. presidents since Harry S. Truman have grappled with. In Truman’s day, the law was blurry. But he and his successors — working with Congress — refined the law to ensure that handling and preserving government records were not subject to the whims of former presidents. They feared that without an orderly legal process, a president might come along and take classified documents, releasing them to undermine the next administration. The ambiguity that Truman faced gave way to crystal-clear laws that Trump has seemingly violated.
In February 1955, Truman and three aides — an academic, his literary agent and a trusted adviser — sat down with his former secretary of state, Dean Acheson, for interviews that would help guide the former president as he wrote his memoirs. Truman and his team went on to interview most of the major figures from his administration.
Their first question threw Acheson for a loop. Rather than asking about a big policy decision, the interviewers wondered: What was “the procedure the president would have to follow in clearing documents, such as State Department documents?” It was so technical that Acheson initially misunderstood the question and launched into a soliloquy on how Franklin D. Roosevelt, Truman’s predecessor, “acted on his own” in dealing with heads of state without even consulting the State Department. One of the interviewers quickly interrupted to clarify what they were really asking.
Why start with such an odd question? The reason stemmed from the vast change in the United States during Truman’s administration. The destruction of Europe and Asia during World War II had left the United States as a hegemonic military and economic power. Truman and his Cabinet had to think about rebuilding a devastated world and preventing a third world war. On top of that, they had to manage a spiraling confrontation with the Soviet Union on ideological, political and economic fronts, which soon threatened to erupt into a nuclear holocaust.
All of this power and all of these problems required a sea change in the way the U.S. government conducted its business. To meet these challenges, the administrative apparatus had to grow. That meant adding thousands of new bureaucrats and experts on top of the explosion in the size of the executive branch that had already taken place during Roosevelt’s presidency. All of this created its own issues: How to manage the tidal wave of paper the government created each day? And, more importantly, how to make sure classified information stayed secret?
It was not a simple problem — and no firm answers had emerged in the decade since the war ended, although Truman had signed the Federal Records Act (FRA) into law in 1950. This law gave the new General Services Administration (GSA) the power to initiate “action through the Attorney General for the recovery of such records as shall have been unlawfully removed,” indicating that officials below the president and vice president couldn’t just keep all of their own documents.
Acheson laid this situation out for Truman and his team. Some issues were clearer than others. If Truman wanted to divulge top-secret information — for example, the size of the U.S. nuclear stockpile in 1950 — he would have to ask for permission from his successor, the Republican Dwight D. Eisenhower. Whether Truman could declassify material himself, well, that was an easy one: “I think it is clear that Mr. Truman cannot do that,” Acheson answered. “He no longer has any authority of any sort. He’s a private citizen now. Anything that is top secret has to be submitted to whoever has the authority to declassify it.”
There were, however, ways to get around classified documents, such as paraphrasing them or describing memories of particular meetings, which might be based on classified notes or other documents. Yet this could get into murky territory.
And Acheson knew precisely where the legal line began to blur, even if his memory was less than perfect. In 1926, his law firm had successfully represented former president Woodrow Wilson’s estate in a case against one of Wilson’s former advisers, “Colonel” Edward M. House. (Acheson apparently misremembered the lawsuit as involving former secretary of state William Jennings Bryan, whose posthumous memoirs came out in 1925, the year before House’s book was published.) House’s book originally contained several letters from Wilson. The court ruled that Wilson’s estate still controlled publication of the letters, and the book had to be reprinted without them. So if Truman had letters from Eisenhower or, say, British Prime Minister Winston Churchill, he’d have to check with them first.
After this explanation, the discussion meandered to whether a former president could even possess classified information. Here again, Acheson was unequivocal, and his answer might surprise readers in 2022: “The pieces of paper belong to Mr. Truman. … That is obscured in law but cleared in practice. All the Presidents, from Washington on down, have taken with them the papers they have had.”
Despite this precedent, Acheson himself had left all of his official papers behind. The Eisenhower administration, amid accusations of communist infiltration against Acheson’s State Department, was looking for any excuse to bring charges against former officials. While Acheson accused Eisenhower’s team of having “very little decency about it,” he understood that, “I am a fellow they would love to prosecute, and I didn’t want to be in a position of having one [expletive] thing.”
The actual law was confusing, and the Eisenhower team’s shift in enforcing it created jeopardy — even for Truman.
While Acheson chalked up the increased enforcement to partisan bad blood, bruised egos and cowing to Sen. Joseph McCarthy’s hysteria, he was only partially right. There was also something bigger at stake.
Trusting officials to keep their documents safe depended on the personal integrity of former presidents and their cabinets. Was that enough to safeguard state secrets in a time of espionage and incredibly high stakes? That concern had fueled passage of the FRA.
But if Acheson had to abide by certain rules that his predecessors did not, the same was not true for Truman. He could still argue in 1955 that he owned his presidential papers.
Subsequent events, including the rise of the modern surveillance state and Watergate, prodded Congress into amending the FRA several times, however, and passing the Presidential Records Act in 1977. This law gave authority over presidential records to the National Archives and Records Administration, which became its own independent agency in 1984.
It established, once and for all, that “the United States — not the president — shall reserve and retain complete ownership, possession, and control of Presidential records,” and that the national archivist assumed custody of presidential records at the end of each administration. In 2020, perhaps anticipating that Trump might flout convention and the law, NARA released a guide to spell all of this out in plain English.
The situation Truman faced in writing his memoirs was new and, as the conversation with Acheson makes clear, the former president wanted to be careful. Yet his situation illuminates how once again — as has often been the case — it is not that the challenges Trump faces are unprecedented. It’s the extent to which he is willing to break well-established precedent that is itself unprecedented. In this case, however, the law is unambiguous, which is why Trump may now face consequences.