We may never know if Trump flushed documents down the toilet — but we do know something

We may never get to the bottom of whether Donald Trump flushed documents down a White House toilet. “Fake story,” says the former president. “100% accurate,” retorts a reporter.

But even without having to unclog plumbing in search of missing papers, national archivists have their work cut out trying to plug potential gaps in the historical record of the 45th president.

On February 7, 2022, it emerged that 15 boxes of documents and other items that should have been handed over to the National Archives and Record Administration had been found at Trump’s Mar-a-Lago residence.

Trump says he was told that he was under “no obligation” to hand over the documents, but the law suggests he may be mistaken here.

Specifically, Section 2071 of Title 18 of U.S. Code states that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” records or documents filed in any public office can be fined or imprisoned for up to three years.

It’s deemed a more serious crime if documents are classified, in which case a penalty of up to five years imprisonment can apply.

In both cases, those held responsible are then disqualified from holding any office in the United States.

These requirements matter not only for posterity and the public record. They can also help build a complete picture of events that have lasting consequences. Among the records reportedly incomplete or missing from Trump’s tenure in the White House are phone logs from Jan. 6, 2021.

In 1957, the National Historical Publications Commission, a part of the National Archives that works to “preserve, publish, and encourage the use of documentary sources … relating to the history of the United States,” recommended developing a uniform system so all materials from presidencies could be archived. They did this to literally save presidential records from the flames: President Warren G. Harding’s wife claimed to have burned all his records, and Robert Todd Lincoln burned all his father’s war correspondence. Other presidents have had their records intentionally destroyed, such as Chester A. Arthur and Martin Van Buren.

So the government collects and retains all presidential communications, including executive orders, announcements, nominations, statements and speeches. This includes any public verbal communications by presidents, which are also placed as public documents in the Compilation of Presidential Documents.

These are part of the official record of any administration, published by the Office of the Federal Register, National Archives and Records Administration on a weekly basis by the White House press secretary. In most presidencies, the document or transcript is available a few days to a couple of weeks after any event. At the conclusion of an administration, these documents form the basis for the formal collections of the Public Papers of the President.

As a political scientist, I’m interested in where presidents give speeches. What can be learned about their priorities based on their choice of location? What do these patterns tell us about administrations?

For example, Barack Obama primarily focused on large media markets in states that strongly supported him. Trump went to supportive places as well, including small media markets like Mankato, Minnesota, where the airport was not even large enough to fly into with the regular Air Force One.

Presidential speeches often give a very different perception of an administration. Without all the pageantry, you can quickly get to the point of the visit in the text.

In speeches that President George W. Bush gave in the 2002 midterm election period, he made the same joke more than 50 times as his icebreaker. He would apologize that audiences had drawn the “short straw” and gotten him instead of Laura. His commitment to that joke gave a glimpse of his desire to try to connect to an audience through self-deprecating humor.

I found something odd when I began to pull items from the compilation and organize my own database of locations for the Trump administration. I was born and raised in Louisville, Kentucky, and I pay attention to my home state. I knew that on March 20, 2017, Trump held a public rally in Louisville, where in a meandering speech he touched on everything from Kentucky coal miners to the Supreme Court, China, building a border wall and “illegal immigrants” who were, he said, robbing and murdering Americans.

But when I looked in the compilation in mid-2017, I couldn’t find the Louisville speech. No problem, I thought. They are just running behind, and they will put it in later.

A year later, I noticed the Louisville speech was still not there. Furthermore, other speeches were missing. These were not just any speeches, but Trump rallies. By my count, 147 separate transcripts for public speaking events are missing from Trump’s official presidential speech records. That’s just over 8% of his presidential speeches.

The Presidential Records Act, first passed in 1978, says administrations have to retain “any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.”

An administration is allowed to exclude personal records that are purely private or don’t have an effect on the duties of a president. All public events are included, such as quick comments on the South Lawn, short exchanges with reporters and all public speeches, radio addresses and even public telephone calls to astronauts on the space shuttles.

But Trump’s large public rallies, and what he said at them, have so far been omitted from the public record his administration supplied to the Compilation of Presidential Documents. And while historians and the public could get transcripts off of publicly available videos, that still does not address the need to have a complete official collection of these statements.

Federal law says that presidents are allowed to exclude “materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of … duties of the President.”

The law has been interpreted to mean an administration could omit notes, emails or other documentation from what it sends to the compilation. While many presidents do not provide transcripts for speeches at private party fundraising events, rallies covered by America’s press corps likely do not fall under these exclusions.

Government documents are among the primary records of who we are as a people.

These primary records speak to Americans directly; they are not what others tell us or interpret to us about our history. The government compiles and preserves these records to give an accurate accounting of the leaders the country has chosen. They provide a shared history in full instead of an excerpt or quick clip shown in a news report.

Since 1981, the public has legally owned all presidential records. As soon as a president leaves office, the National Archivist gets legal custody of all of them Presidents are generally on their honor to be good stewards of history. There is no real penalty for noncompliance.

But these public documents, which I work with constantly, have so far always been available to the public – and they’ve been available quickly. Internal presidential documents like memos or email have a rigorous archival procedure that lasts years before they are even accessible. I have a record of every presidential speech from 1945 to 2021 – every president since Bill Clinton has all their public speeches available online. Until Trump, there have been no missing public speeches in the permanent collection. By removing these speeches, Trump is creating a false perception of his presidency, making it look more serious and traditional.

And by the way: That 2017 Louisville speech is still missing from the records in 2022. I’m hoping it might be found among those 15 boxes.

Editor’s note: This is an updated version of an article originally published on April 14, 2021.

Shannon Bow O'Brien is an Associate Professor of Instruction at The University of Texas at Austin College of Liberal Arts

This article is republished from The Conversation under a Creative Commons license. Read the original article.