Public Records in the Age of Trump

twitterBy Jeff Bess

It is  more than cliché to observe that the advent and evolution of the internet has deeply transformed modern society in many ways, both micro and macro. Indeed, not a clearer example exists than the role social media played in the 2016 presidential election. With over twenty million followers on Twitter and nearly 35,000 tweets, Donald Trump leaned into this direct line to the masses to set a new high water mark for social media ubiquity in pursuit of the White House.

Though derided by many as misguided or un-presidential, it is undeniable that Trump’s avid use of Twitter has been and continues to be effective. Indeed his prolific social media presence was a key source of the estimated $2 billion in earned media that greatly contributed to his success. And now that he is president, do his characteristic early morning, sometimes scattershot flurries of 140-character missives count as official government records? In other words, are they subject to federal document retention laws?

“Bigly,” as Trump would say. Two federal laws – the Presidential Records Act and the Freedom of Information Act – govern retention and release of federal records. The Presidential Records Act requires the president to scrupulously maintain administration records and prohibits nearly all deletion. The Freedom of Information Act gives citizens the right to obtain most government records through a formal request process. Both laws are intended to ensure government transparency and accountability to the public, and have long been understood to cover all common forms of non-digital media.

Both also mandate preservation of electronic records. The Presidential Records Act expressly defines “documentary material” to include “digital” media and “electronic recordings.” The 1996 Electronic Freedom of Information Act amended the Freedom of Information Act to explicitly encompass electronic records. Though not a direct facsimile of traditional “records” – for example, a digital version of a typed document or recorded speech are – tweets, snaps, and other social media artifacts nevertheless “document” the administration’s record. A Trump presidency complicates these matters in at least two interesting and legally significant ways.

First, unlike former President Obama, President Trump has expressed a preference to use his personal @realDonaldTrump Twitter handle over the official @POTUS account. The general consensus is that these are still presidential records because President Trump uses the account to discuss everything from his trade policy, to cabinet appointments, to “the wall.”  But, to the extent President Trump’s tweets are government records, Trump is arguably using a personal account in much the same manner that he and his supporters criticized former secretaries of state Hillary Clinton and Colin Powell for during the contentious campaign. At that time, President Trump and his followers asserted this practice was at best reckless and at worst criminal. Trump also cannot guarantee the security of Twitter servers, which could expose archives and the account itself to data loss or theft.

Second, President Trump has a habit of deleting his tweets to fix spelling errors or scrub a message entirely. President Trump may very well be illegally destroying federal records by doing so. The Presidential Records Act defines the president’s records as public property, and mandates that they be available to the public by Freedom of Information Act requests beginning five years after the end of the administration. Again, it was not even two months ago that Hillary Clinton was under FBI investigation for similarly deleting emails, while then-candidate Trump was leading chants of “lock her up.”

For its part, the Obama administration took a proactive approach to preserving the 44th president’s extensive first-of-its-kind online presence. In October the administration, which maintained social media accounts on numerous platforms including Twitter, Facebook, Instagram, and YouTube, outlined an ambitious and comprehensive plan to retain content in cooperation with the National Archives and Records Administration. Outgoing administration officials’ online identities were migrated to archival accounts on January 20 – Obama’s @POTUS tweets, for instance, can now be found at @POTUS44 – for future public access. The Obama-era whitehouse.gov is now found at obamawhitehouse.gov. In addition, the National Archives and Records Administration is soliciting public input and participation to implement creative tools for searching and making use of the Obama archives.

This article does not claim to make a conclusive judgment about the legality of either President Trump’s or Clinton’s digital record-keeping practices, but the parallel is obvious and the irony is irresistible. Whatever the merits, it will be fascinating to see whether President Trump institutionalizes a means of caching his tweets, or abandons @realDonaldTrump; and whether political opponents will bring legal challenges to either.

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