During the president’s brief tenure in office, multiple concerns have been raised about the failure of the president and his staff to comply with the Presidential Records Act (“PRA”). Possible violations range from the use of private email systems to conduct White House business to the use of phone apps that prevent messages from being created and preserved in the first instance. This behavior appears to fit into a larger pattern of secrecy surrounding the White House and its activities.
The PRA was enacted to establish public ownership of presidential and vice presidential records, to impose record keeping requirements on the president and vice president, and to authorize the National Archives and Records Administration (“NARA”) to preserve and make publicly available presidential records. Toward that end, the PRA specifies that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]”[i] Stated differently, the records of a president belong to the people, not the president.
The PRA defines the term “Presidential record” broadly to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the president’s constitutional, statutory or ceremonial duties.[ii] The statute excludes from the definition of presidential records “personal records,” defined as those “of a purely private or nonpublic character” unrelated to the president’s constitutional, statutory, or ceremonial duties.[iii] In addition, the PRA directs the president to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]”[iv]
Amendments to the PRA, added in 2014, address the growing use of personal email accounts to conduct official business. Those subject to the PRA – the president, vice president, and their staff – may not create or send a presidential record using “a non-official electronic message account” unless they also copy their official government account or forward a copy to their official government account within 20 days.[v] Those who intentionally violate this provision are subject to disciplinary action.[vi] With respect to other forms of social media and methods of electronic communications, NARA guidance makes clear such communications, including those sent from a Twitter account, must be managed as “records.”[vii]
The PRA also dictates when and how presidential records may be destroyed during a president’s term of office. The president may dispose of his or her non-personal records only after making a determination that the records “no longer have administrative, historical, or evidentiary value.”[viii] Upon such a determination, an incumbent president may destroy his or her non-personal records, but only after obtaining the written views of the archivist and only after the archivist states in writing that he does not intend to take action.[ix] Further, after the archivist has stated in writing that he does not intend to take action with respect to the destruction of specified presidential records, the president must then notify the appropriate congressional committee 60 days before the proposed disposal date of his or her intention to dispose of the records.[x] This multi-step process reflects the care Congress took to ensure presidential records could be destroyed only after considered deliberation by multiple entities.
As has been widely reported, the president has deleted records the PRA requires him to preserve. President Trump’s preferred method of public communication is Twitter, and he has both a personal and an official Twitter account. But the contents of the tweets from both accounts, which set forth the president’s musings on a wide variety of topics from the performance of the intelligence community to his views on a judicial decision enjoining his travel ban, clearly pertain to his official position. Nevertheless, a number of President Trump’s tweets have been deleted, sometimes because of typos,[xi] but sometimes in an apparent attempt to avoid criticism over apparent conflicts of interest, such as a tweet concerning his meeting with generals at his Mar-a-Lago residence.[xii] Underlining these concerns is the boast of President Trump’s former campaign manager Corey Lewandowski to lobbying clients of his access to the president’s Twitter account.[xiii]
Further, at least four other senior White House officials reportedly maintained, and may still use, active email accounts on the Republican National Committee (“RNC”) email system. Unfortunately, for at least three of the accounts it may not be possible to verify whether their use excluded government business as the RNC already has deleted emails from them.[xiv] But their use raises concerns about whether White House staff is complying with the PRA. The use of personal cell phones and non-governmental email accounts by White House officials to send texts or emails relating to government business would violate the PRA, unless those messages were transferred to an official EOP recordkeeping system.[xv]
In a January 30, 2017 letter to White House Counsel Donald F. McGahn, Ranking Member Claire McCaskill and Sen. Tom Carper of the Senate Homeland Security and Governmental Affairs Committee raised concerns regarding White House staff’s compliance with the PRA. They requested a variety of information that would shed light on the use by White House staff of non-governmental email accounts to conduct official business. To date, the White House has not responded to this request.
In February, White House Press Secretary Sean Spicer directed random phone checks of White House staff and warned them that using certain texting apps that encrypt and automatically delete texts after they are sent violates the PRA.[xvi] This action followed multiple reports that members of the Trump administration were using “Confide,” an app that encrypts and deletes messages after they have been read.[xvii] EOP-issued cell phones do not allow apps to be loaded on them, meaning any use of encryption apps necessarily involves personal cell phones, heightening the risk that presidential records sent or received on those phones have not been preserved. Of course, any app that deletes messages would not allow such preservation, raising another concern under the PRA.
The Trump administration’s apparent disregard for statutory recordkeeping responsibilities is depriving the American public of the historical records to which it is entitled. The ethical lapses and missteps the administration already has made underline the need to preserve a full record of its activities.
[i] 44 U.S.C. § 2202.
[ii] 44 U.S.C. § 2201(2).
[iii] Id., § 2201(3).
[iv] 44 U.S.C. § 2203.
[v] 44 U.S.C. § 2209.
[vii] NARA Bulletin 2015-02, Guidance on Managing Electronic Messages, July 29, 2015; National Archives and Records Administration, White Paper on Best Practices for the Capture of Social Media Records, May 2013.
[viii] 44 U.S.C. § 2203(c).
[x] Id., § 2203(d).
[xi] See, e.g., Meg Wagner, Trump’s Deleted Tweets Could Violate Presidential Records Act, New York Daily News, Jan. 1, 2017. available at http://www.nydailynews.com/news/politics//trump-deleted-tweets-violate-presidential-records-act-article-1.2952416; Eli Watkins and Laura Jarrett, The Presidential Records Act and @realdonaldtrump, CNN, Feb. 18, 2017, available at http://www.cnn.com/2017/02/18/politics/presidential-records-act-donald-trump-twitter/.
[xii] Ben Kentish, Donald Trump Deletes Tweet About Meeting Generals at his Mar-a-Largo Florida Resort, The Independent, Feb. 22, 2017, available at http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-delete-tweet-generals-meeting-mar-a-lago-florida-keith-kellogg-h-r-mcmaster-a7590886.html.
[xiii] Tarini Parti, Corey Lewandowski’s Potential Clients Say He’s Bragging About Access to Trump’s Twitter Account, BuzzFeed, Feb. 15, 2017, available at https://www.buzzfeed.com/tariniparti/corey-lewandowskis-potential-clients-say-hes-bragging-about?utm_term=.ijEvykebo#.th7kwVKD9.
[xiv] Letter from Sen. Claire McCaskill and Sen. Tom Carper to White House Counsel Donald F. McGahn, Jan. 30, 2017, available at https://www.carper.senate.gov/public/_cache/files/a88eb66b-4ba0-4bb7-8fd5-a7613fe9598f/2017-01-30-letter-from-mccaskill-carper-to-wh-counsel-mcgahn-press-.pdf.
[xvi] Annie Karni and Alex Isenstadt, Sean Spicer Targets Own Staff in Leak Crackdown, Politico, Feb. 26, 2017 (available at http://www.politico.com/story/2017/02/sean-spicer-targets-own-staff-in-leak-crackdown-235413).
[xvii] See, e.g., Lily Hay Newman, Encryption Apps Help White House Staffers Leak – and Maybe Break the Law, Wired, Feb. 15, 2017 (available at https://www.wired.com/2017/02/white-house-encryption-confide-app/); Andrew Restuccia and Nancy Cook, Trump Inspires Encryption Boom in Leaky D.C., Politico, Feb. 27, 2017 (available at http://www.politico.com/story/2017/02/trump-encryption-cybersecurity-leaks-235417).