April 15, 2020
On Monday, President Trump’s regularly scheduled pandemic press conference took a bizarre and potentially unlawful turn. He used the press conference to show a captive audience of reporters in the room—as well as a television audience that spanned the globe—a video touting his role in what was characterized as a successful federal response to the coronavirus pandemic. The video may have violated a legal prohibition against using appropriated funds for the dissemination of unauthorized publicity or propaganda.
The video, which had the feel of a campaign ad, prompted stunned reactions on social media and among news outlets. It opened by falsely characterizing media outlets as having downplayed the pandemic “WHILE PRESIDENT TRUMP TOOK DECISIVE ACTION.” The capital letters in this statement appeared in the video. It also featured selected clips of President Trump and set them to dramatic music. Overlaid above various images was a timeline that omitted most of the month of February—the period when critics say President Trump failed to take needed action, choosing instead to visit his golf course and hold political rallies. The video closed with clips of state governors praising President Trump for his personal role in the pandemic response.
At one point, the video took an audio clip out of context to make it sound as though New York Times reporter Maggie Haberman had offered unqualified praise of his travel ban. Though Haberman was heard defending President Trump against accusations of xenophobia and racism in connection with his travel ban, the clip ended too soon. It crucially omitted her next statement: “The problem is, [the travel ban] was one of the last things that he did for several weeks.” Haberman also said, “He did not do anything after that in terms of alerting the public, or telling people to be safe, or telling people to take precautions. And it basically squandered several weeks within the US.”
The White House’s creation of this propaganda-style video may well violate federal appropriations law. The “Consolidated Appropriations Act, 2020” (Public Law 116-93) expressly prohibits the use of any federal appropriations—including those that pay White House salaries and expenses—for publicity or propaganda not authorized by Congress. Section 718 of the law reads: “No part of any appropriation contained in this or any other Act shall be used directly or indirectly, including by private contractor, for publicity or propaganda purposes within the United States not heretofore authorized by Congress.” This section applies generally to the entire government, including the White House Office.
Because appropriations law does not explicitly define “publicity or propaganda,” the Government Accountability Office (GAO) has provided guidance through a series of opinions. GAO is a legislative branch agency that, among other things, has responsibility for investigating potential violations of appropriations law by the executive branch. GAO has defined unauthorized “publicity or propaganda” as any activity that fits into one of the following three categories: (1) covert communications, (2) self-aggrandizement, and (3) purely partisan activities. Trump’s video implicates the second category, self-aggrandizement.
Self-aggrandizement occurs when federal appropriations are expended—whether through the payment of salaries, the use of federal resources, or other expenditures—to tout an individual or an agency. The prohibition against self-aggrandizement can be violated when the government creates materials emphasizing the importance of a particular individual, rather than publicly disseminating “information reasonably necessary to the proper administration of the laws for which an agency is responsible.”
GAO has also held that using appropriated funds to create unauthorized publicity or propaganda not only violates the prohibition contained in the annual appropriations law but also violates the federal Antideficiency Act. That law prohibits the use of federal funds for purposes other than the purposes for which Congress appropriated them. Violations of the Antideficiency Act trigger a requirement to report the misuse of federal appropriations to Congress and, in severe cases, could lead to disciplinary action for the staff members involved or more severe penalties. In one case, GAO specifically explained that the creation of videos that violated the publicity or propaganda prohibition also violated the Antideficiency Act.
In a fairly recent decision, GAO found that former Environmental Protection Agency (EPA) Administrator Scott Pruitt had not violated the self-aggrandizement ban by appearing in an outside group’s video. Justifying this determination, GAO explained: “In our view, these remarks do not constitute self-aggrandizement because, although the then-Administrator presented information about EPA’s role and encouraged public participation in the rulemaking process, he did not attempt to persuade the public of his own importance or of EPA’s importance as a government agency.”
This exoneration of Administrator Pruitt highlights the problem with President Trump’s video: Its purpose was to persuade the public that he had ably led a successful response to the pandemic. The video, which took a retrospective look at his role, was devoid of information related to the government’s ongoing efforts to slow the spreading pandemic. It touted him as a leader who took “decisive” action, contrasting the asserted speed of his response to what it characterized as a lagging media reaction to the crisis. An audio clip in the video also defended him personally against charges of xenophobia and racism, and it featured other politicians showering him with praise.
Immediately before airing the video, President Trump blasted a highly critical article that appeared in the New York Times on April 11, 2020. He then offered this concise introduction of the video: “But most importantly, we’re going to get back onto the reason we’re here, which is the success we’re having. Okay?” After showing the video, he emphasized: “And remember this — because the [New York] Times story was a fake . . . remember this: Everything we did, I was criticized because I was too early. If I waited longer, . . . if I went three months earlier, I would have been criticized — you know, criticized for being way too early.” Significantly, the April 11, 2020, New York Times story President Trump referenced was titled: “He Could Have Seen What Was Coming: Behind Trump’s Failure on the Virus.”
The White House video was clearly an attempt to respond to the criticism of President Trump in the New York Times article. In fact, President Trump seemed to acknowledge as much. Referencing the work of his staff in creating the video, he said: “All they did was took [sic] some clips, and they just ran them for you. And the reason they did is to keep you honest. Now, I don’t think that’s going to work. It’s not going to have any impact. But just think of it: You heard the clips, you heard what I said. They said I acted late on closing down the country.” In this context, it would seem hard to argue that President Trump’s video was anything other than a textbook case of self-aggrandizement.
The self-aggrandizement didn’t go unnoticed. MSNBC’s Ari Melber stopped airing the press conference as video played, and summed up the obvious complaint: “We are going to avoid airing any more of this White House briefing until it returns to what it was supposed to be, which was the coronavirus taskforce providing medical information. What we just saw, I want to be very clear with viewers, was a video the White House put out, which suggests they are spending their precious time right now making videos that defend the president’s record and tenure rather than provide the much needed emergency medical information that was promised at these daily briefings.” CNN’s John King, who also stopped airing the press conference during the video, had a similar reaction: “To play a propaganda video at taxpayer expense in the White House briefing room is a new — you can insert your favorite word here in this administration.”
It’s also relevant that President Trump is currently running for reelection. By showing the video during an official press conference, he seemed to be trying to get worldwide coverage of something akin to a free campaign ad on multiple broad-reaching media platforms. One commentator accused him of “using the briefing room to air a campaign-style clip.” Others similarly referred to the video as a “campaign-style video clip,” a “campaign-style video” and a “campaign ad-like video.” A reporter sitting in the briefing room even confronted President Trump on this point shortly after watching the video: “Can I just ask you about the video? Because I’ve never seen a video like that played in this room. It looks a bit like a campaign ad. Who — who produced that video for you?”
When pressed by reporters in the room, President Trump admitted that this stunning video had been created by White House staff, including Assistant to the President Dan Scavino. The funds Congress appropriated for White House salaries and resources were not intended to be used for the creation and presentation of a propaganda video touting the accomplishments of a President who is currently running for reelection. Members of Congress should demand answers from the White House, and they should request an immediate GAO opinion regarding the lawfulness of this expenditure.