As Archives Leans on Ex-Presidents, Its Only Weapon Is ‘Please’
WASHINGTON — The National Archives and Records Administration this week delivered a gentle request to representatives of former presidents and vice presidents: Could you please check again to see if you have any classified documents laying around?
Asking nicely is about all they can do.
Legal experts said that officials at the archives do not have any independent ability to enforce that request, or to require that the country’s former leaders conduct searches of the materials they still have in their possession.
Enforcement of the laws governing presidential records and classified documents is up to the Justice Department, which has opened investigations into the actions of President Biden and former President Donald J. Trump, who have each discovered classified records at their homes.
Officials at the department have not commented on whether they plan to open an investigation into former Vice President Mike Pence, who also has acknowledged having a handful of classified documents after he left office.
Officials at the Justice Department declined to comment about enforcement authorities. A spokesperson for the archives declined to comment.
On Thursday, William J. Bosanko, the chief operating officer at the archives, wrote to representatives of the former presidents and vice presidents, urging them to look again in light of the discoveries made by Mr. Biden, Mr. Trump and Mr. Pence.
“We request that you conduct an assessment of any materials” to determine “whether bodies of materials previously assumed to be personal in nature might inadvertently contain presidential or vice-presidential records,” Mr. Bosanko said in his request, which covered both classified and unclassified materials.
But so far, the letter does not appear to have yielded any significant new actions.
Freddy Ford, the chief of staff for former President George W. Bush, provided a response on Friday.
“Thank you for your note,” Mr. Ford said he wrote to the archives. “We understand its purpose and remain confident that no such materials are in our possession.”
The National Archives has the legal authority to collect and maintain government records under the Presidential Records Act and other federal laws, which lay out what documents must be preserved for history.
In 1978, Congress passed the Presidential Records Act to clarify that documents created and used by a president and other White House officials are the property of the federal government, not of the person who occupies the Oval Office. The law applied to all presidents following Jimmy Carter.
But people who have studied the handling of government documents say that there is little in the law that provides the archives the power to require compliance.
“If there are violations of law, they can be referred to the Justice Department for action,” said Steven Aftergood, a specialist on government secrecy for the Federation of American Scientists. “But NARA itself has no police force or ability to enforce its own actions.”
Mr. Aftergood said that officials at the archives must rely on what he called “some degree of moral force” to back up their request to the former officials.
“The Presidential Records Act and the whole archival system depends on good faith,” he said. “Lacking good faith, the system is going to break down.”