What we learned from Joe Biden: Congress and the Supreme Court need a federal records act

America’s Founders wanted to create a United States with three co-equal branches of government, executive, legislative and judicial. Thus, one of the most shocking discoveries to emerge from presumptive Democratic presidential nominee Joe Biden’s response to allegations from one of his former U.S. Senate staffers is just how unequal these three branches are when it comes to preserving official papers and records. 

Biden’s private Senate papers are held at the University of Delaware. There is no requirement for any of them to be made public. Indeed, last Friday, Biden told MSNBC’s Mika Brzezinski that he didn’t want to release his Senate papers because “all of that could be fodder in a campaign at this time.” 

In fact, according to the U.S. Senate Historical Office, the records from every senator’s office are the “property” of the member. Senate committee files and floor records are preserved, but all the letters, memos, reports, speeches, calendars, voting records, electronic files, photographs, etc., remain that senator’s private property, to do with as he or she sees fit. All of Congress is also specifically exempt from the Freedom of Information and Privacy Act — meaning no citizen can file a request to see congressional papers, whereas federal agencies must share theirs.

Supreme Court justices never run for office, but the justices’ papers are even more protected than those of U.S. senators. The justices can decide to destroy all their papers or save only select papers; they can make those papers public or keep them private for any length of time. There is no regulation. According to Scotusblog, before his death, Justice Hugo Black instructed his son to burn his conference notes, so no one could “eavesdrop” on the “private conversations” of justices. 

Only the executive branch is subject to detailed controls. The president and vice president of the United States — and their offices — are required by federal law, passed by Congress, to preserve all records. Every letter, email, memo and piece of paper that a president touches must be preserved according to terms of the 1978 Presidential Records Act. This rule is so strict that, in 2018, Politico reported on an entire records management department operating in the Old Executive Office Building next to the White House. Its job? To tape together documents and even newspaper articles that President Trump had torn up after reading, sometimes into tiny pieces, so that they could be saved for the National Archives. Apparently, ripping papers had been Trump’s “unofficial filing system.” Federal employee Solomon Lartey told Politico that it was like working “a large jigsaw puzzle” while using Scotch tape. 

Here’s the problem I have with this unequal treatment of work-related papers under the law. At the end of the day, each of these branches of government, the Supreme Court, Congress and the Executive, are not only supposed to be equal — so they should abide by the same rules regarding document preservation — but they also are each employed by the American people. We, as taxpayers, pay their salaries; we pay for the paper they use and the computers they type on. They are supposed to be working for us. In the private sector, employees’ email accounts, as well as their contacts list, and any emails they have sent or received, are the property of their employer if they are sent on a company server or use a company email address. In fact, employers often can monitor employee email accounts if they so desire. Employers also retain control over documents and other work products.

A quick review suggests that only Congress and the Supreme Court have such extensive immunity from the most basic regulations that govern the rest of us — as well as the executive branch — in the workplace. This is not co-equal; this is unequal. There should be no special claims of privacy or privilege for those in government, beyond national security protections. If anything, we need our government to be more transparent, not less so.

Public servant means just that: These individuals serve the public. We, the voters and taxpayers and citizens, are their employers. We should have a right to see all of the work we have paid for. 

Greta Van Susteren is a lawyer and chief national political analyst for Gray Television. She previously hosted legal affairs and news programs on Fox News, MSNBC and CNN. Follow her on Twitter @greta.