Maybe there are recordings from the Trump White House; maybe there aren’t. On the one hand, President Trump seemed to threaten the former FBI director in a tweet Friday morning, writing, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” Later on Friday, Press Secretary Sean Spicer repeatedly refused to comment on the tweet and whether or not tapes exist.
But if they do exist, those tapes could be subject to a subpoena demanding that the White House turn them over. That could either resolve the question and expose the inner workings of the White House, or it could spark a constitutional crisis.
Former presidents famously did record goings-on in the White House, especially John Kennedy, Lyndon Johnson, and, disastrously, Richard Nixon. It’s believed that no president since Nixon has taped in the White House, in order to avoid the problems Nixon faced—though, of course, it’s possible some did so secretly.
The first important fact about recordings is that if they did exist, post-Nixon, an administration would be required to preserve them as a public record, in accordance with the 1978 Presidential Records Act. The recordings would theoretically become subject to Freedom of Information requests five years after a president left office, though that can be staved off to as much as 12 years. The entire recordings wouldn’t necessarily become available, because there are carve-outs for personal information about the president’s life, as well as “political” activities. If recordings did exist, it would be a crime to destroy them.