In recent weeks, national and global news outlets have been ablaze with headlines about an FBI raid of former President Donald Trump’s home in Palm Beach, Florida in search of a trove of documents that the U.S. Department of Justice says should have been turned over to the National Archives. To better understand how departing presidential administrations typically handle official records as they prepare for the arrival of their successors, Harvard Law Today turned to Neil Eggleston, who served as White House counsel to President Barack Obama from 2014 until President Trump took office in January 2017 and led his administration’s transition process. Now a lecturer on law at Harvard Law School, Eggleston says it is important to start the process of handing over government records early because, he argues, they “belong to the American people.”
Harvard Law Today: When did you and the Obama administration start thinking about the types of records retention questions that have been in the news lately?
Neil Eggleston: I was not there at the beginning of the Obama administration, but I have a good idea of what happened. Early on, the White House Counsel’s Office instructed the White House staff about what records needed to be maintained and sent to the National Archives and Records Administration at the end of the President’s term, as well as which could and could not be destroyed. White House staff need that operational information at the beginning of the administration and throughout their time in the White House to make sure that those materials are available at the end of the president’s term to be transferred to the National Archives. The Presidential Records Act is clear: all of those records belong to the American people, not the outgoing president.
HLT: When did you actively start preparing for the transition?
Eggleston: I was White House counsel for the last three years of the Obama administration. We started very intensely thinking about this issue in the summer of 2016, at least six months before the end of the president’s second term. The White House Counsel’s Office was essentially in charge of interfacing with the National Archives and organizing the transfer. My ethics deputy, Dana Remus, who until a couple weeks ago was White House counsel to President Biden, was in charge of that process. We had a massive amount of electronic data, significantly more than prior administrations. We started working early on with the National Archives to provide for the transfer of the electronic data. The Archives had computer servers on site, and we started the process of transferring the data long before the administration ended. Congress had passed a statute which made it clear that the data was still essentially owned by the Obama administration, even if it was in the National Archive’s hands. The transfer wasn’t complete until the end of the term, but we began it early on, which permitted an orderly transfer.
HLT: Is the process more difficult for administrations that are transitioning because they lost a reelection bid, rather than for those at the ends of their second terms?
Eggleston: We had one advantage over President Trump, which is that President Obama was elected to a second term. We knew that at noon on January 20, 2017, we were gone. Unlike us, President Trump did not win re-election. Then he denied that he had lost it. That denial prevented planning for the transition of Mr. Trump out of the White House. He did not want to acknowledge that he had lost, and he did not want to start the transition process because that would have made it seem as if he thought he’d lost. His refusal to acknowledge his electoral defeat had more tragic consequences, such as the attack on the Capitol on January 6, but it also impacted the transition in more mundane ways, such as making the transfer the government documents to the National Archives significantly more chaotic.
In January of 2021, the Department of Justice Office of Legal Counsel came out with an opinion that said electronic data that was still on the White House servers at the time of the transition was President Trump’s and could not be accessed by the incoming Biden team. I’m not sure whether that was a valid legal conclusion, but it highlighted the problem that, unlike the Obama administration, the Trump administration just hadn’t gotten the emails to the National Archives yet. The inauguration was going to take place, and this material was still on the White House servers, so they were trying to put down a marker that it still was part of the Trump administration.
HLT: What would you have done differently had you been going into a contested election at the end of a president’s first term? Would you have started preparing in advance, just in case your president lost? Or would you have waited until the day after the election to start the process?
Eggleston: I wasn’t there for the end of President Obama’s first term, but knowing the kind of careful person he is, I would have put a plan together to accomplish that transfer between election day and inauguration day so we would have been prepared for the transition in case the election went against us. I don’t know that I would have begun to implement the plan before the election. But I would have been ready.
HLT: What records retention laws did you need to consider?
Eggleston: The most important statute is the Presidential Records and Materials Preservation Act, which Congress passed in connection with President Nixon’s claim that all the White House material from his administration belonged to him. President Nixon sued to stop the government from taking control of his administration’s records. The Supreme Court upheld the statute and ruled in Nixon v. General Services Administration that those papers belong to the American people.
There’s been a lot written recently about whether the material President Trump took to Mar-a-Lago was classified, the level of classification, if there was a standing declassification order, if the documents include national defense information, whether they are subject to the presidential communications privilege, and how involved Mr. Trump was personally in withholding and hiding those documents from the Department of Justice and the National Archives despite repeated requests. Those are all important legal issues that require a lot more facts than we have and will inform the Department of Justice on whether a criminal case against Mr. Trump or those around him is appropriate.
The recently unsealed search warrant affidavit sheds some light on those issues, but the extensive redactions make the affidavit not all that illuminating. One fact the unsealed affidavit makes abundantly clear, however, is that “[t]he government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records.” That is a very serious investigation into potential wrongdoing by Mr. Trump and those around him.
There is no doubt, however, that the White House documents at Mar-a-Lago are presidential records that are owned by the American people and should have been sent on January 20, 2021 to the National Archives. Those documents are not the personal possessions of President Trump. There is no theory of law, in my view, under which President Trump would be permitted personally to hold on to those documents. Despite lots of talk from Mr. Trump and his surrogates, we still have not heard why Mr. Trump determined to remove those documents from the White House, load them on some carrier, and take them to his Florida home. Nor have we heard what he intended to do with them. The documents were loaded into boxes — they could have been sent to the National Archives more easily than they were sent to Mr. Trump’s Florida home.
HLT: Could you say a bit about the U.S. government’s data classification system? What are the criteria for classification and the process for documents to become classified and declassified?
Eggleston: The U.S. government’s information classification system is largely governed by executive orders issued by the president. Those executive orders set forth the process for classification and declassification in some substantial detail. Notably, the orders also define the various categories of classified information. Sensitive compartmented information, or SCI, is the highest level of classification. The next category below SCI is top secret, which is defined as “information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.” Secret is pegged to information that if disclosed would cause “serious damage to the national security.” And confidential is pegged to information that if disclosed would cause “damage to the national security.”
Each of these categories also comes with detailed requirements for how the information should be kept secure. The government takes enormous care to ensure the security of this information, particularly SCI and top secret information.
The inventory of the classified information that was at Mara Lago discloses significant amounts of information in each of those categories. The security measures at Mara Lago almost certainly did not comply with the requirements for the secure handling of classified information.
HLT: Can you say more about sensitive compartmented information? What types of information does it entail?
Eggleston: Sensitive compartmented information, which we have seen in the photo of the classified cover sheets the FBI took at Mara Lago as “SCI,” is a designation for among the country’s most protected information. SCI information is information “concerning or derived from intelligence sources, methods or analytical processes.” This would include human sources who would likely be killed if exposed; sensitive signals intelligence, where the channel would be closed down by our adversaries if discovered; or other such techniques of obtaining information that would themselves be compromised and essentially rendered useless if disclosed.
HLT: How much of the classification process is governed by statute and regulation? What discretion does a president have under Article II to shape questions of classification?
Eggleston: The classification and declassification of U.S. government information is largely governed by executive orders that go back decades. Each president typically issues an updated executive order covering this topic. Those executive orders establish the classification and declassification process. This power derives from the president. Unlike everyone else in the government, the president is not read into compartments or asked to sign non-disclosure agreements because the power to classify and declassify ultimately derives from the President.
Congress has also weighed in a bit in this area, largely through statutes that criminalize the improper release of classified or national defense information. Among those statutes is the Espionage Act, which has gotten a lot of attention in the last few weeks because those criminal penalties are not tied to whether the information is classified. A person violates the statute by improperly releasing, among other things, national defense information whether the information is technically classified or not. This distinction is in part because the Espionage Act predated our system of classifying information.
The executive orders establish the process by which information is classified and declassified. President Trump has claimed that he had a standing declassification order whenever he took classified documents to the White House residence. Many commentators have disputed that assertion as a matter of fact and law. But apart from that dispute, the effect of such a standing order would be that all of that highly sensitive information would no longer be protected and could be released publicly, potentially causing enormous harm to the country’s national security interests.
Since the power to classified and declassify information ultimately rests with the president, he has enormous discretion in this area. The power derives from his status as commander in chief and head of the executive branch under Article II of the Constitution. That is why presidents typically issue an updated executive order covering classified information procedures at the beginning of his term.
HLT: After a transition, is anything left behind in the White House for the incoming administration?
Eggleston: When an administration leaves, there’s no paper or electronic data left in the West Wing, because all records have been transferred to the National Archives. One exception, at least in the Counsel’s Office, was that at the end of the Obama administration we left a big binder of our ethics memoranda and guidelines for the incoming administration. I thought it was important that the new administration quickly have access to information about presidential records, conflicts of interest, and the like. The Trump White House counsel didn’t have to adopt the guidelines we had, but he could use them as a model if he wanted to get those ethics memos out quickly. Apart from that — and the letter the outgoing president typically leaves on the Resolute Desk for the incoming president — all the paper and electronic data is removed from the White House Office.