President Trump’s veiled reference on Friday to “‘tapes'” of his conversation with former FBI Director James Comey, whom he abruptly fired earlier this week, has raised questions about whether the president secretly records his discussions and whether those recordings — if they exist — could expose him to federal record-keeping requirements.
Trump’s tweet came after a week of turmoil for the administration, and it immediately sparked a firestorm of criticism from Democrats who accused the president of threatening Comey into silence.
One day earlier, Trump had revealed that he and Comey met over dinner earlier this year to discuss the possibility of leaving Comey at the helm of the FBI. Trump claimed during an interview with NBC that he had asked Comey whether he was under criminal investigation for alleged Russian ties, and claimed Comey had informed him that he was not under investigation.
But reports citing sources close to Comey quickly surfaced and suggested that, rather than affirm the president’s innocence, Comey had declined Trump’s request for a loyalty pledge. The White House has denied the claim that Trump asked his former FBI director for personal loyalty.
Michael Genovese, a professor at Loyola Marymount University, said presidential recording systems have become uncommon since the Nixon era.
“While there is no set protocol for presidents taping themselves, it was fairly common from FDR to Nixon,” Genovese said. “With Nixon, the tapes went from being the personal property of presidents to property of the United States. That was the key game changer. No longer could a president destroy or tamper with the tapes.”
President Richard Nixon had secretly recorded his conversations in the Oval Office and Camp David before his involvement in the Watergate scandal exposed the existence of his extensive listening device network. After Nixon refused a congressional subpoena for the tapes, investigators pursued them in court, and the Supreme Court ultimately ruled in 1974 that Nixon had to turn over the tapes because they were considered government property.
Melanie Sloan, senior adviser at the nonpartisan watchdog American Oversight, said federal law would now require the president to archive recordings if he made them.
“The Presidential Records Act does require, if there are audio tapes, they have to be preserved,” Sloan said. “Any kind of recording is definitely a presidential record. They’re not a personal record, they’re a presidential record.”
Sloan said the National Archives would be responsible for enforcing the Presidential Records Act, which Congress passed in 1978 in order to ensure the preservation of records created or received by the president, vice president or high-level White House officials.
“The first question is, are there really tapes or is he just saying it?” Sloan said of Trump’s tweet. “I don’t know how we would really know.”
White House press secretary Sean Spicer said Friday that he was “not aware” of the existence of a tape that could shed light on what Trump and Comey said during their Jan. 27 dinner. Spicer declined to elaborate on what the president had meant when urging Comey to “hope” that no one had recorded his conversation with Trump, telling reporters on Friday that Trump’s tweet “speaks for itself.”
In Washington, D.C., only one party must consent to a recording for it to withstand a legal challenge. However, Sloan noted, both parties — the recorder and the one being recorded — must agree to a taping in Florida for the recorder to avoid possible litigation. That legal distinction could complicate matters further for Trump, Sloan said, if he has ever used a listening device at Mar-a-Lago, his Palm Beach estate.
White House records are not subject to the Freedom of Information Act, which allows journalists and citizens to obtain documents from government agencies by filing requests. But presidential records, including tapes, that are submitted to the National Archives can be obtained through FOIA after a period of at least five and as many as 12 years after a president leaves office.
