CREW moved for a restraining order against the White House, President Trump, and Jared Kushner. They can’t be allowed to destroy government records on their way out.
Washington— As President Trump’s term draws to a close, we face an increasing risk that historically valuable records of his presidency will be permanently lost in violation of records laws, according to a new lawsuit filed by the National Security Archive, the Society for Historians of American Foreign Relations, the American Historical Association, and Citizens for Responsibility and Ethics in Washington. By adopting a policy that allows White House personnel to capture and preserve only portions of electronic messages they send or receive on unofficial messaging accounts, the White House is permitting the loss and destruction of Presidential record material.
This is part of a larger pattern of the President and the White House ignoring, if not flouting, their obligation to create and preserve records memorializing official actions and decisions. With the President facing potential legal and financial exposure once he leaves office, there is a growing risk that he will destroy records of his presidency before leaving. The lawsuit seeks relief that would prevent the President from destroying records during his remaining time in office.
“The Presidential Records Act exists for a simple reason: to prevent presidents and their staff from destroying historically valuable records. By deleting or preserving only parts of these records, the White House is destroying essential historical records,” said CREW Executive Director Noah Bookbinder. “The American people deserve not only to know how their government is making important decisions, but to understand what was going on behind closed doors and what we could do better in the future.”
The groups are challenging an official White House policy that allows White House personnel to preserve as official Presidential records “screenshots” of records sent on non-official messaging platforms.But as guidance from the National Archives and Records Administration makes clear, screenshots that do not capture a message’s metadata are not “complete copies” as the Presidential Records Act requires. Senior White House Advisor Jared Kushner, in particular, has admitted using non-official messaging accounts like WhatsApp to conduct official White House business, relying on screenshots alone to satisfy his recordkeeping obligations. As a result, the public faces the loss of important Presidential records unless this policy is rescinded and the White House takes steps to capture all record material before the President’s term ends.
“The American Historical Association’s Congressional charter tasks us with the responsibility to promote historical studies and monitor the collection and preservation of historical materials. This includes advocating for the integrity of presidential records, which reveal the functioning of every aspect of the executive branch—from policy consideration to policy implementation. Research rooted in these materials provides an unparalleled look inside an administration’s activities that would, if absent, leave the world wholly reliant upon the memoirs and memories of those whose deeds we professionally investigate and evaluate,” said American Historical Association Executive Director James Grossman.
“Presidential records are always at risk because the law that’s supposed to protect them is so weak,” said National Security Archive Director Tom Blanton. “The Archive, historians, and CREW are suing to put some backbone in the law, and prevent any bonfire of records in the Rose Garden.”
“For the purpose of creating a ‘usable past’ for generations of future citizens, the Society for Historians of American Foreign Relations is gravely concerned with preserving the integrity of the Trump administration’s records. In light of the administration’s previous violations of the Presidential Records Act, it consequently judges it essential to take legal action to prevent any efforts to destroy records or otherwise fail to retain them in their entirety. It welcomes the opportunity to join with like minded organizations in pursuing this goal,” said SHAFR’s Historical Documentation Committee Chairman Richard Immerman.
The PRA requires the president and his staff to document, preserve and maintain records of “the activities, deliberations, decisions, and policies that reflect the performance of the president’s constitutional, statutory, or other official or ceremonial duties.” In 2017, the White House Counsel issued two memos reminding all White House personnel of their obligation to preserve and maintain official government records. But despite that warning, the White House also adopted the screenshotting policy that conflicts directly with its preservation obligations.
This is not the first time CREW, National Security Archive and Society for Historians of American Foreign Relations have taken action against the Trump administration for failing to adhere to its recordkeeping obligations. In June 2017, the trio filed a lawsuit challenging the use by White House officials of encrypted apps to communicate about official business that erase messages as they are read. More recently, in May 2019, the three groups filed a lawsuit alleging that President Trump violated the Presidential Records Act by failing to create records of his key meetings and communications with foreign leaders, including Vladmir Putin and Kim Jong-Un.