Are Trump's Inflammatory Tweets a Matter of Presidential Record?

We’ve entered unprecedented territory when the late-night tweets of our Bloviator-in-Chief undermine his administration and violate our Constitution.
Written by

Almost every day, Trump tweets something awful. Just last night he tweeted “NYC terrorist was happy as he asked to hang ISIS flag in his hospital room. He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!”

He usually tweets so from his personal account, rarely deciding to use the official POTUS Twitter account he (regrettably) inherited from President Obama. If you go to that official account, you’ll see that it says that tweets are archived and points you to the White House privacy policy, a section of which deals with the data retention requirements under the Presidential Records Act. Basically, under the PRA, the administration has to retain information—including tweets—until the end of the current administration (which can’t come soon enough). But what of those tweets that come from the Donald J. Trump Twitter account, where Trump does most of his tweeting, and does most of his damage—and sometimes even deletes things, like his initial support for Luther Strange rather than Roy Moore in the Alabama Senate race? Are those presidential records?

First, a little bit about how the PRA works—or at least how it worked before Trump. The PRA requires presidents to keep records, just like anyone else in the government. However, unlike other people in the government, you can’t make a Freedom of Information Act (FOIA) request for those records. Instead, those records are available for release 5 years after that president leaves office for non-classified material, and 12 years after for classified material.

The PRA law defines “presidential records” pretty broadly. The president is required to keep “documentary materials”—books, papers, memos, audio recordings, maps, and “digital correspondence,” which arguably includes Twitter. But—and here’s the kicker: only if those materials relate to the “political activities” of the president or his staff, and only if those activities “relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.” In other words, the president isn’t required to save that note he wrote to the staff saying he likes his coffee with cream or the post-it on his desk reminding him where his black shoes are. It also excludes records about to the president’s own election (past or upcoming) and other elections if they don’t relate to the president’s official duties.

So, what does this mean for Trump’s personal Twitter account? Are his bloviations over there related to the carrying out of his official duties as president?

It’s clear that Trump thinks so. He uses Twitter to make official proclamations about policy all the time. It’s how he announced the ban on transgender troops, for example. Courts treat his tweets like official pronouncements too: the 9th Circuit Court of Appeals cited his tweets when they overturned his travel ban. Even Sean Spicer, back when he was press secretary, said Trump’s tweets were official pronouncements from the president.

The National Archives and Records Administration, which is the entity that is responsible for receiving, storing, and ultimately giving access to presidential records, says that Trump’s tweets are indeed presidential records, but that doesn’t really address the problem: whether Trump can delete those tweets. The answer to that is … maybe?

In theory, there’s no reason that Trump can’t delete the things, like the infamous “covfefe” tweet, that have nothing to do with his presidency. (That one probably had more to do with him falling asleep mid-rant.) He might even be able to swing deleting things like the Luther Strange-Roy Moore tweets, since those arguably relate only to an election where Trump is endorsing, and he’s not required to keep those records. But what about when he has deleted things like saying that he’s going to meet with a bunch of generals at Mar-a-Lago?

There’s actually a lawsuit over that one. Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA) have sued to force Trump to adopt policies and procedures to archive all tweets from Trump’s personal account.

The problem with that approach is that the PRA is pretty toothless. The president has the power to decide how he is going to store and maintain the data and what data he’ll keep. And if he decides that he can delete any tweets he wants, or even delete his account entirely, the National Archives really can’t do a thing about it. Instead, we’re going to have to rely upon places like ProPublica, which is keeping a running list of all Trump’s deleted tweets.

This is no way to run a government or keep a historical record of that government’s actions, but it’s where we are now. 

 

Lisa Needham is an attorney who has worked in the areas of First Amendment, education, and labor law. She is the deputy editor of Lawyerist, where she writes about access to justice and diversity in the law, and a contributor to Rewire, where she writes about LGBTQ and reproductive-health legal issues. She is ride or die for Dionne Warwick, Doris Day, and the Oxford comma. Follow her: @snipy
More by:
Lisa Needham