Donald Trump is under investigation for a lot of things, but right now, most of the country’s attention is not on his instigation of a violent attack on the Capitol, his attempts to undermine our democratic processes, or even his long history of creative tax accounting. The current Trump scandal is about the boxes of secret documents that he took home with him and left in a storage room at his fancy private club.

This was pretty shocking — apparently, Trump’s cache of documents contained items pertaining to the country’s most secret programs, and his club is widely known for its sloppy approach to security. There’s been a lot of speculation about why Trump took the documents — is he trying to cover something up? Was he going to sell them? Was he trying to, as one person on the internet put it, “impress South Florida’s Most Divorced Plastic Surgeons at the Wet Meat Buffet?”

We may never know. But there’s another possibility — maybe Donald Trump is just a dedicated student of history. Maybe he is simply a devotee of a simpler time, a not-so-distant era when there was no such thing as classified information and when it would have been legal for him to fill his basement with as many documents as his heart desired.

Probably not. But you can be a student of history! Join me as we explore the surprisingly short history of governmental secrecy in the United States, including the laws the former president seems to have violated!

For a country so obsessed with governmental secrecy, we’ve only really had policies about secret information for about a century.

There were a few early attempts to keep government secrets — spying, of course, was prosecuted in most of America’s wars, and, in 1869, the Army told soldiers that they were not allowed to openly share details about the design of forts. But there was no real sense that the government, in peacetime, should worry about keeping information out of the hands of the public, nor was there much effort to control the flow of that information.

This all changed in the early part of the 20th century. By 1911, the U.S. was pretty much constantly embroiled in conflict. Though America wasn’t fighting any declared wars at the time, its military had been active all over the world, especially in Asia and Latin America, and the country was beginning to behave more and more like a standard colonial power.

Congressman Reuben Moon of Pennsylvania realized that most other countries had passed laws about government secrecy by this point. He also understood that “most modern wars have been settled quickly by reason of the preparation of the belligerents… In this contest of preparations, the question of knowledge on the part of the enemy is of vital importance.” Moon had heard of some incidents in which Americans had given away or sold sensitive information about colonial operations, but there was no law under which they could be prosecuted.

Moon proposed the Defense Secrets Act of 1911, which made it illegal for government officials to obtain information “to which he is not lawfully entitled” or receive any information “without proper authority.” Much of the text of this law made it into the World War I-era Espionage Act of 1917, which upgraded the penalties for malfeasance from one year in jail and a $1000 fine to a possible death penalty.

The Espionage Act is still on the books — it’s one of the laws under which the Justice Department could charge Trump — although it has been heavily amended over the years. It used to be more comprehensive. During World War I, the law contained provisions that made it illegal to “obstruct recruiting.” Prosecutors enforced the law aggressively, throwing many left-wing figures, including Socialist Party leader Eugene Debs, in jail for speaking out against the war.

After the war, Congress took the “sedition” clauses out of the law, and the Espionage Act was mostly used to police government secrets. In recent decades, it has been at the core of a number of high-profile cases in which an activist tried to publish material the government preferred to keep under wraps. Daniel Ellsberg stood trial for passing the “Pentagon Papers” to journalists during the Vietnam War, and Edward Snowden remains in hiding in Russia because he was charged with violating the Espionage Act in 2013.

Part of the Trump controversy deals with the fact that much of the information that was in vulnerable locations at Mar-a-Lago was marked secret or classified. These concepts are pretty recent — it wasn’t until the buildup to World War II that our modern system of classifying information took shape. In 1940, Franklin Roosevelt signed an executive order creating a system for categorizing sensitive documents — they would be marked as “secret”, confidential”, or “restricted.”

The biggest secret of the war — how to build atomic weapons — drove the development of our modern system of government secrecy, and the Cold War made the systems of secrecy permanent. The most famous cases of Cold War espionage revolved around nuclear technology, and, for half a century, the U.S. government considered itself to be in a perpetual existential struggle against an implacable foe.

In the Cold War, measures that had previously existed only for wartime now seemed necessary all the time. In the late 1940s and early 1950s, laws like the Atomic Energy Act and a number of executive orders created a system in which a lot of the things the government did were, as a matter of routine, declared off-limits to the public, and there were penalties for government employees who mishandled the information. It was particularly telling when Harry Truman, in 1951, issued an executive order allowing any department of the government — not just the military — to classify information. Now the Department of Agriculture, for example, could declare something Top Secret if it was deemed important to national security.

The rules around the classification of secret documents continued to evolve as new presidents issued new executive orders, but the basic outlines of the practice remained the same after Truman — a huge amount of the information produced by the government was considered secret, and the public could not have access to it. When the Cold War ended, many of the structures created to combat the Soviets continued on — the system of classification was one of them.

Trump’s case pertains, at least partially, to presidential records, which his defenders have intimated should simply be considered his personal property. This would be true if it were the 1960s. While it is the case that some presidents took all their documents with them when they went back to civilian life, this practice became illegal after Richard Nixon — a president with whom Trump seems to have a lot of similarities! — resigned.

Nixon notoriously destroyed records and withheld information from Congress, especially the secret recordings he made of his conversations. When he resigned, members of Congress worried that Nixon would take his documents with him and perhaps destroy them. In response, they passed a new law: the Presidential Recordings and Materials Preservation Act, which empowered the National Archives to take possession of Nixon’s documents.

In 1978, Congress passed a more general law, the Presidential Records Act, which took effect in 1981. Under the law, presidential documents belong to the people of the United States, not the president. It instructs presidents to retain records for the archives throughout their presidency— something Trump, with his weird habit of tearing up papers and even throwing them in the toilet, never tried to do — and make arrangements with archivists for the care and storage of their documents after their presidency. Every president since Reagan has complied with the law.

Today’s system of government secrecy is incredibly complex. A 2017 report found that various parts of the government had published almost 3,000 guides to the handling of classified information. A lot of information seems to be classified as a matter of course, or even to protect political figures from blowback. Some experts have estimated that between half and 90% of classified information does not really need to be classified — that is, it would cause no real harm to national security if it was made public.

This doesn’t absolve Trump, of course. Even though many of his defenders portray him as a childlike figure who couldn’t possibly have understood the rules, if anybody ought to know better, it’s the president. There were several laws governing these documents and he broke them. Hilariously, he even signed the FISA Amendments Act of 2017, which increased the penalties for “unauthorized removal and retention of classified documents or material.”

Hopefully, we’ll find out in the coming weeks what, exactly, Trump did with the documents he took. Was he selling nuclear secrets to the Saudis or just waving around his letters from Kim Jong Un to impress his golf buddies?

Perhaps Donald Trump yearns for the pre-World War II days when there was no such thing as a classified document. Or perhaps he’s just a narcissist who doesn’t understand why there’s a distinction between a president’s interests and the public’s.

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