Forty-five years ago today, five men were arrested while wiretapping phones and stealing documents from the offices of the Democratic National Committee, inside the Watergate complex of buildings.  This was actually not their first time breaking into these offices, but when the building’s security guard noticed the locks on several doors had been taped over and called the police, he changed the future of the American presidency.  There is the obvious political consequence that played out over the next two years, culminating in the resignation of President Richard Nixon on August 8, 1974.

But there was also a records impact in this story.  Of course, Nixon fought against the release of the tapes that recorded conversations that took place in the Oval Office.  After the U.S. Supreme Court mandated in 1974 that he turn over the tapes, it was obvious Nixon could not survive the scandal.   After he left office, he negotiated an agreement with General Services Administrator Arthur Sampson to donate his papers to a presidential library, with the understanding that Nixon could destroy the White House tapes within ten years.  As a result of this, Congress passed the 1974 Presidential Recordings and Materials Preservation Act, which required Nixon’s presidential materials to be kept in the Washington, DC, area.  In 2007, these records became a part of the National Archives system and were integrated into his presidential library.

Through the presidency of Jimmy Carter, the legal interpretation was that the records of the President belonged to the person, not the office.  The 1978 Presidential Records Act (PRA) changed the legal ownership of the official records of the President from private to public.  It also defined “Presidential records” as

“documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

This legislation went into effect for the Reagan and all subsequent administrations.  All previous presidents since Hoover — Nixon excepted — voluntarily donated their papers to their presidential library.

The 1978 PRA has been in the news recently with Congressman Mike Quigley’s proposal of the COVFEFE Act — Communications Over Various Feeds Electronically for Engagement.  He has suggested that tweets from President Trump’s private Twitter account should be preserved as presidential records alongside those from the official @POTUS account.  What makes the PRA interesting is that it vests the President, not the Archivist of the United States, with the authority to determine which records are presidential records and which are personal records.  AOTUS David Ferriero laid out the practicalities of the PRA in his March 2017 response to queries from Senators McCaskill and Carper.

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