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Congressional Oversight of Executive Branch Records Preservation

I. Introduction

U.S. executive branch agencies are subject to broad legal requirements regarding the preservation of records of official government business with potentially stiff penalties for violations that could include suspension or firing as well as criminal sanctions. There is a long history of congressional oversight over executive branch records management that has been conducted by congressional leaders of both parties. This document describes major recordkeeping requirements and penalties and congressional precedent on records management oversight.

II. Agency and Presidential Records Preservation Statutes

Two statutes impose broad record preservation requirements on the executive branch: the Federal Records Act (FRA) (44 U.S.C. Chapters 21, 29, 31, and 33) and the Presidential Records Act (PRA) (44 U.S.C. Chapter 22). The FRA applies to records held by federal agencies (44 U.S.C. § 3301) while the PRA applies to the records of the President, the Vice President, and their immediate aides (44 U.S.C. §§ 2201, 2207). According to the National Archives and Records Administration (NARA), the components of the White House that fall under the PRA as opposed to the FRA include the White House Office and the Office of the Vice President among other offices.

The FRA was enacted in 1950 to provide for a system of agency records management and the preservation of select agency records by NARA. It requires agency heads to ensure preservation of records “containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions” of the agency to provide information necessary to protect the rights of government and those affected by the agency’s activities (44 U.S.C. § 3101). Under the law, agency records may not be destroyed unless authorized by NARA for disposal (36 C.F.R. § 1225.10; 44 U.S.C. § 3303).

The PRA was enacted in 1978 after President Richard Nixon sought to destroy records relating to his presidential tenure upon his resignation in 1974. The law superseded the policy in effect during Nixon’s tenure that a president’s records were considered private property, making clear that presidential records are owned by the public. The PRA requires the President to ensure preservation of records documenting the performance of his official duties (44 U.S.C. § 2203(a)), provides for NARA to take custody and control of the records (44 U.S.C. § 2203(g)), and sets forth a schedule of staged public access to such records (44 U.S.C. § 2204). Records covered by the PRA encompass documentary materials relating to the political activities of the President or members of the President’s staff if they concern or have an effect upon the carrying out of “constitutional, statutory, or other official or ceremonial duties of the President” (44 U.S.C. § 2201(2)).

Under both the PRA and FRA, the definition of “record” turns on its content, not its storage medium. For example, information generated on a private email account may be subject to federal recordkeeping requirements if it reflects official government business. The PRA does not reach “private” records of the President such as diaries, materials relating exclusively to a presidential campaign, and records concerning private political associations (44 U.S.C. § 2201(3)); the FRA does not apply to “library and museum material made or acquired and preserved solely for reference or exhibition purposes,” or duplicate copies “preserved only for convenience” (44 U.S.C. § 3301).

III. Penalties for Violating Records Management Statutes

Administrative penalties such as reduction in grade, suspension, or removal, are available under Title 5 Chapters 43 and 75 for violations of the FRA and PRA, depending on the facts surrounding the violations. The PRA also expressly provides that its recordkeeping requirements are enforceable through administrative sanctions that include suspension and removal from employment. 44 U.S.C. § 2209(b).

Further, destruction or removal of federal records could implicate several criminal provisions, depending on the content of the records and the surrounding circumstances:

  •  Under 18 U.S.C. § 2071, individuals who willfully remove or destroy records “filed or deposited” in “any public office” ---   or who attempt to do so --- may be subject to fines or up to three years of imprisonment if they deprive the government use of those documents (United States v. Rosner, 352 F. Supp. 915 (S.D.N.Y. 1972)). Supervisors who direct supervisees to violate this statute can themselves be found guilty under 18 U.S.C. § 2(b) (United States v. Salazar, 455 F.3d 1022, 1023 (9th Cir. 2006));
  • Under 18 U.S.C. § 793(f), individuals with possession or control of records reflecting national defense information who permit their removal, loss, or destruction by “gross negligence” are subject to fines or imprisonment of not more than ten years; and
  • Under 18 U.S.C. § 1924, individuals who remove classified materials without authority and with intent to retain them at another location may be fined or subject to imprisonment of up to five years.

There are also specific criminal prohibitions against destroying records relevant to congressional or federal investigations:

  • Under 18 U.S.C. § 1505, individuals who destroy records to impede or influence a congressional investigation or proceeding before any U.S. agency may be fined or subject to imprisonment for up to five years.
  • Under 18 U.S.C. § 1519, individuals who destroy records to impede or influence an actual or contemplated investigation under the jurisdiction of any U.S. agency may be fined or subject to imprisonment of up to 20 years (United States v. Katakis, 800 F.3d 1017, 1023 (9th Cir. 2015).

IV. Congressional Oversight of Executive Branch Records Management

From the country’s earliest days, Congress has acted to ensure effective records management and preservation in the executive branch. In 1789, Congress enacted the nation’s first records preservation law, requiring “safekeeping” of the nation’s records. In the decades following the enactment of the comprehensive record management and preservation regimes set forth by the FRA and PRA, congressional committees have engaged in multiple reviews of executive branch compliance with federal recordkeeping requirements. For example:

  • In 2000, the House Committee on Government Reform investigated glitches discovered in the Clinton Administration’s records management systems of the White House and Office of the Vice President that had resulted in a gap in the archiving of emails and production to the Committee. While the number of affected emails relative to the total was relatively small and no evidence was uncovered showing any intent to destroy records, the White House responded by spending millions of dollars to address the problems and reconstruct missing emails. The Republican majority on the Committee issued a report alleging that the matter constituted a scandal bigger than Watergate.
  • In 2005, Sandy Berger, former National Security Advisor to President Clinton, pleaded guilty to violating 18 U.S.C. § 1924 by taking classified documents out of the National Archives when he was reviewing materials to prepare for his interview with the 9/11 Commission in 2002 and 2003. The House Committee on Government Reform commenced an investigation of this conduct in 2004 but held it in abeyance pending a Department of Justice investigation that resulted in the 2005 guilty plea by Berger and a separate NARA Inspector General review that resulted in a 2005 report. In 2006, the Committee resumed its review, interviewing individuals from NARA, DOJ, and the 9/11 Commission, and issuing a report in 2007 concluding that Berger’s conduct constituted a “disturbing breach of trust and protocol that compromised the nation’s national security.”
  • In 2007, an investigation led by House Oversight Committee Chairman Henry Waxman revealed that senior officials in the Bush White House used private email accounts maintained by the Republican National Committee for official business. According to the investigation, for example, Karl Rove, the President’s senior advisor, sent or received over 75,000 emails to “.gov” email accounts from his private RNC account. 

In 2015 and 2016, Republican congressional leaders in the House and Senate investigated the conduct of Hillary Clinton, former Secretary of State to President Obama, in setting up a system on her private email server for receiving and sending government emails. Among the steps taken in these investigations:

Prepared in conjunction with American Oversight