ARTICLE
24 January 2025

The Legal Status Of Presidential Diaries Must Be Clarified

KL
Kramer Levin Naftalis & Frankel LLP

Contributor

Kramer Levin provides its clients proactive, creative and pragmatic solutions that address today’s most challenging legal issues. The firm is headquartered in New York with offices in Silicon Valley and Washington, DC, and fosters a strong culture of involvement in public and community service. For more information, visit www.kramerlevin.com
Nearly every president since George Washington has kept a personal diary while in office, with the possible exception of Donald Trump.
United States Criminal Law

Nearly every president since George Washington has kept a personal diary while in office, with the possible exception of Donald Trump. It appears that most vice presidents have done the same. These diaries have served many purposes: They have provided the chief executives with an outlet for their most intense and personal feelings; a way to talk to themselves in the loneliest job in the world; an outlet for the pressures the job inevitably brings. The diaries have also served as a unique glimpse, all posthumously, into the hidden events that shape our world. As one federal judge put it, a president's diary and notes "touch the core of the presidency as well as intimate and confidential communications by the president with himself." John Quincy Adams called his diary a "second conscience."

Yet, the legal status of presidential and vice presidential diaries became unsettled following a report issued by Robert Hur—the special counsel appointed to investigate the self-disclosed discovery of classified documents in President Joe Biden's former office and home—in February 2024. This legal uncertainty injects confusion and jeopardy into one of the most important means by which our chief executives help themselves to be grounded while performing the world's hardest jobs.

Presidents have always treated the diaries as their personal property and upon leaving the White House have taken the diaries with them into post-presidential life. George H.W. Bush was so careful to ensure that his diary remained his personal property that when he dictated his thoughts every evening he insisted using only those recording tapes that he purchased with his own personal funds. Ronald Reagan loaded his diary volumes onto the plane that took him back to Los Angeles after George H.W. Bush was sworn in. Reagan kept the diaries in his LA home and later recounted how he and Nancy Reagan read aloud from the diaries in the evening to recall their days in the White House.

No one in any regulatory or law enforcement position has ever challenged the way these former chief executives have treated their diaries after leaving office—until recently.

In his February 2024 report, Special Counsel Hur wrote that his investigation uncovered evidence that Biden, after his eight-year vice presidency, "willfully retained" notebooks containing his handwritten notes about "issues of national security and foreign policy implicating sensitive intelligence sources and methods." These notebooks were in "unlocked drawers in the office and basement den" of Biden's Delaware home.

Hur considered recommending criminal prosecution of Biden for his handling of these handwritten notes but decided against it based, in part, on the difficulty he would have proving that Biden had the requisite criminal intent to violate the law. Hur cited Biden's forceful testimony during his interview that he had the right to keep his diaries at his home as his personal property in part because "every president before me has done the exact same thing." Hur also declined to recommend prosecution because of the Department of Justice's treatment of previous presidents and their diaries, particularly the case of Reagan, which Biden referenced during the interview.

The Reagan diaries came into play when Admiral John Poindexter, Reagan's former national security adviser, subpoenaed the diaries for his defense to charges stemming from the Iran-Contra affair and the DOJ intervened to object to disclosure of the diaries. In its brief, the DOJ noted that the diaries contained classified information but made no subsequent effort to retrieve the diaries from Reagan's home or investigate, let alone prosecute, anyone in connection with the diaries and the way they were kept. Though he did not include this in his report, Hur may have been influenced by the special counsel regulations under which he operated that required him to abide by the DOJ "practices and policies."

While Hur did not recommend prosecution of Biden, he made clear his view that the "law forbids" the actions of Biden in keeping his diaries containing classified information in his home after leaving office. Hur stated that if Biden believed he could keep these diaries as every former president had done, "he was mistaken about what the law permits."

I suspect these statements would come as a startling surprise to former Presidents Jimmy Carter, Bill Clinton, George H.W. Bush and Reagan, all of whom did just what Hur claimed was unlawful. And though there is legal confirmation only concerning the fact that Reagan's diary contained classified information, it strains credulity that the other diaries did not also contain classified material. A president's day is filled with classified briefings, meetings and documents, and it is often the case that the classified is not clearly delineated from the unclassified activities. The chief executive's diary would of necessity contain information, observations and musings that contain classified information. Does Hur's position mean that all of these former presidents "did what the law forbids" and would have been subject to prosecution had there been a special counsel to investigate their activities?

That is an impossible question to answer, but regardless of whether Hur's view actually reflects DOJ policy, his position has created enough confusion and ambiguity that we need to clarify the appropriate status and treatment of presidential diaries. Leaving this question unresolved puts future presidents in untenable positions and threatens to upend their ability to use a helpful tool that nearly every predecessor has used. It would be a calamity to deny presidents the right to conduct conversations with themselves in the purely private manner that diary writing offers. It would also deprive history of one of the most valuable sources of critical information that allows a fuller understanding of the people and events that shape the nation and the world.

There is, I think, a relatively straightforward way to avoid depriving presidents and vice presidents of this important tool. We must reaffirm that these diaries are purely personal documents, owned by the writers, to do with as they see fit. We must also accommodate the concern addressed by Hur that classified information should be protected consistent with applicable standards by arranging for former presidents and vice presidents to have facilities in or near their private homes for the appropriate storage of these materials. The former chief executives can in that way maintain complete custody and control over their private diaries while protecting classified material and national security.

Whatever the solution, this is an issue too important to be left to the uncertainty raised by Hur's unprecedented legal position about Biden's diaries. It must be fixed.

Originally published by The National Law Journal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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