By Victoria Szymczak, Director of the Law Library
Well, both are outcomes of the Watergate Scandal. Some of you might not know about Watergate because it happened long ago in the early 1970’s; however, it is still a hot topic rearing its head in modern docudramas like Viola Davis’ First Ladies Season 1 (starring the lady herself, Michelle Pfeiffer, and Gillian Anderson) and Gaslit starring Julia Roberts and an unrecognizable Sean Penn. If you haven’t seen either series, you should! The acting is fabulous, and both provide a female perspective on what was going on back in the 1970s.
Back to Watergate, your professional responsibilities class, and Mar-A-Lago.
Briefly, on June 17, 1972, five men broke into the Washington DC headquarters of the Democratic National Committee headquarters located in the Watergate Office Building. They called themselves the Plumbers. No one really knows why even after all these years. We can assume it was to obtain some advantage in the upcoming elections. The Plumbers – were caught in the act, arrested, and tried. The DOJ connected the cash found on them to the Committee for the Re-Election of the President (President Nixon). During further Congressional investigations – even more riveting than the January 6th hearings – witnesses testified that Nixon had approved plans to cover up his administration’s involvement in the break-in and that there was a voice-activated tape system in the Oval Office. (Back then, we used polystyrene tape to store recordings, not clouds.) The President resisted any attempts to release the tax records – I mean tapes – until the US Supreme Court ordered him to do so. History indicates that he sought to destroy the tapes before SCOTUS ordered him to make them available and to destroy official records before leaving office. As it is, there is an 18 1/2-minute gap in the tapes that remains a mystery. The tapes that were not tampered with revealed that Nixon tried to cover up the bungled burglary of Democratic National Committee headquarters.
In the end, Nixon resigned, and 69 people – many of them lawyers – were found guilty of numerous crimes. The public was outraged, as were many in the legal profession.
Your Professional Responsibility Class
In response, the American Bar Association first retired a failed 1968 Model Code of Professional Responsibility and replaced it with the Model Rules of Professional Conduct. Second, as part of the accreditation standards for law schools, the ABA adopted Standard 303, requiring all law students to take a class on professional responsibility and study the Model Rules of Professional Conduct.
Mar-A-Lago and the Presidential Records Act
Another effect of the Watergate scandal was the Presidential Records Act (44 USC §§ 2201-2209, effective January 20, 1981) – this is the law Donald Trump allegedly violated when he brought 15 boxes of official White House documents, and whatever the subject of the search warrant executed on August 8, 2022, at Mar-A-Lago. It is also implicated in the former President’s habit of tearing up or flushing documents down the toilet. Apparently, the search was part of an ongoing investigation launched by the National Archives and Records Administration. That’s right – the librarians are going to bring down the former President! Don’t mess with our documents!
In 1955, Congress passed the Presidential Libraries Act (amended in 1986, 44 USC 2112). The PLA established a system of privately erected and federally maintained libraries and encouraged Presidents to donate their historical materials to the government, ensuring the preservation of Presidential papers and their availability to the American people. This had been the norm since FDR created his presidential library. But President Nixon tried to ignore that norm.
After Nixon resigned, he entered into an agreement with the General Services Administration that would have allowed him to destroy his records, including the Watergate tapes. Congress acted quickly to head off the tapes’ destruction, enacting the Presidential Recordings and Materials Preservation Act. Nixon was unsuccessful in his challenge that Act, Nixon v. Administrator of General Services, 433 US 425 (1977).
Following the SCOTUS decision, Congress enacted the Presidential Records Act to clarify ownership over official records. It requires the President, Vice President, and their immediate staff to turn over their official records to the National Archives and Records Administration when they leave office.
However, the PRA has no enforcement mechanisms, penalties, or jail sentences. Instead, if the National Archivist and the DOJ decides to press criminal charges, they might use
1) 18 USC § 1361 – Government property or contracts (fine + imprisonment up to 10 years, or both), or
2) 18 USC § 2071 – Concealment, removal, or mutilation generally. There are not specified penalties under this section; however, Sandy Berger, President Bill Clinton’s former national security adviser, removed classified documents from the National Archives in 2003 to help prepare testimony to the 9/11 Commission. Berger pleaded guilty and paid a $50,000 fine instead of serving jail time. More serious violations are likely to incur more serious penalties.
For more information on the PRA, see The Presidential Records Act: An Overview, CRS Report 46129, 2019.
Incidentally, the only President (so far) who has been arrested was Ulysses S. Grant, who was arrested for driving his buggy too fast.