By Devan Cole, CNN
Recent controversies over the certification of the Equal Rights Amendment and improper record-keeping of Trump-era documents have pushed the nation’s chief archivist, whose typical pro forma responsibilities render him unknown to all but the most knowledgeable Washingtonians, into the middle of several high-profile political dramas.
David Ferriero, who’s set to retire in April, has been the head of the National Archives and Records Administration since 2009, where his duties typically entail overseeing the agency’s three dozen facilities around the US that hold more than 13 billion pages of documents. His role is also to formally add amendments to the US Constitution — which hasn’t been put to use during his tenure, as the Constitution hasn’t been amended since 1992.
Still, he’s become a key figure for many progressives who are leaning on Ferriero to take the drastic step of interpreting a dispute — and thus directly contradict legal guidance issued by the Justice Department and a federal judge’s opinion that the deadline for ratifying the ERA expired — about the status of the ERA and add it as the nation’s 28th Amendment. Ferriero has made no public indication that he is willing to do so.
Ferriero and his agency, which maintain the US’ vast trove of presidential records, have also become tangled up in former President Donald Trump’s dubious handling of records from his time in office. The top archivist stressed earlier this week that the Presidential Records Act is “critical to our democracy” after CNN and other outlets reported that Trump would routinely rip up documents and that he took several boxes to his Florida residence after leaving the White House.
The push for Ferriero to certify the ERA represents perhaps the biggest test he’s faced during his 12 years running NARA, and it forces the little known civil servant and Obama appointee into the center of a decades-long fight to enshrine equal rights for women in the Constitution.
US code places the power to actually amend the Constitution in the hands of the nation’s top archivist, with federal law stating in part that the “Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the states by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”
But the archivist “has delegated many of the ministerial duties associated with this function to the Director of the Federal Register,” according to the National Archives’ website, which says that when the Office of the Federal Register “verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.”
“This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed,” according to NARA.
Ferriero must now decide whether he’s going to either side with backers of the ERA, who have been asking him to publish the ERA as the 28th Amendment to the Constitution as part of his ministerial duties, arguing that it has satisfied all the necessary constitutional requirements and in fact took effect last month, or a trio of Republican senators and others who are raising concerns over the legitimacy of the ratification process.
“In light of the calls for you to disregard your duty and certify the ERA, we write to ask for your commitment that you, and the acting Archivist who will take over in April, will not certify or publish the ERA,” Sens. Rob Portman of Ohio, Ron Johnson of Wisconsin and Mitt Romney of Utah wrote to Ferriero, arguing that the ERA has “failed to achieve ratification by the states and is no longer pending before them.”
Opponents have argued that three states that ratified the ERA in recent years are invalid because they occurred years after a deadline set by Congress passed, and they’ve pointed to five states’ past rescissions of their ratifications as part of why the ERA is not ratified.
They’ve also pointed to Justice Department legal guidance, issued under the Trump administration in 2020, that said the deadline to ratify the ERA expired and that the archivist cannot certify it. They’ve also cited litigation surrounding the matter as another reason why the archivist cannot act on it.
In 2020, Virginia, Illinois and Nevada, the three latest states to ratify the ERA, sued Ferriero in an effort to force him to certify the amendment. A federal judge ruled in the case last March that the deadline for ratifying the ERA had expired.
“Plaintiffs’ ratifications came after both the original and extended deadlines that Congress attached to the ERA, so the Archivist is not bound to record them as valid,” Judge Rudolph Contreras wrote in his decision. The case is being appealed.
NARA declined CNN’s request for comment on Thursday, saying it won’t comment on the issue while the case is pending.
Democrats probe NARA over Trump records
As Ferriero grapples with how to handle the ERA issue, he is also weighing in on Trump’s handling of records from his time in office, emphasizing that the federal law governing how presidential records are preserved must be adhered to by all presidents.
“The Presidential Records Act mandates that all presidential records must be properly preserved by each administration so that a complete set of presidential records is transferred to the National Archives at the end of the administration,” Ferriero said in a statement this week. “NARA pursues the return of records whenever we learn that records have been improperly removed or have not been appropriately transferred to official accounts.”
Congressional Democrats have launched a probe into the matter, with House Oversight Committee Chairwoman Carolyn Maloney, a New York Democrat, asking Ferriero to provide information on 15 boxes from the White House that needed to be recovered by the NARA from Trump’s Florida resort last month, as well as “the actions taken by President Trump to destroy or attempt to destroy (presidential records), and any actions NARA has taken to recover or preserve these documents.”
Ferriero said in his statement that “the Presidential Records Act is critical to our democracy, in which the government is held accountable by the people,” adding: “Records matter.”
Ferriero announced in January that he would retire in mid-April after serving in the post under three US presidents.
He said in a statement that under his leadership, the agency has “become a leader in the government’s transition to a digital future, electronic records management, and the principles of Open Government,” adding that it’s served customers by “increasing public access and engagement through the online catalog and social media; streamlining how we serve veterans; expanding access to museums, exhibits, and public programs in person and virtually; and establishing civic literacy initiatives.”
Ferriero has found himself in national controversy before, having claimed “full responsibility” in 2020 for an altered photograph from the 2017 Women’s March that censored signs referencing women’s anatomy and Trump’s name.
The altered photograph sparked outrage among Trump critics and historians, prompting the agency to issue an apology and later replace it with an unaltered one.
A veteran of the Vietnam War, Ferriero previously served as director of the New York Public Libraries, and had also worked at the Massachusetts Institute of Technology and Duke University, according to his official biography.
CLARIFICATION: This story has been updated to provide additional context about the legal arguments surrounding the archivist’s role in certifying the Equal Rights Amendment.
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CNN’s Veronica Stracqualursi and Zachary Cohen contributed to this report.