Could the President’s Twitter fingers pose a legal challenge?
On Friday, President Donald Trump’s Twitter account posted one tweet, deleted it and issued another tweet with similar language.
For posterity’s sake, the first tweet read: “The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) is not my enemy, it is the enemy of the American people. SICK!”
It was quickly replaced with: “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”
Deleting a tweet is commonplace — Twitter does not allow users to edit their messages after they post. The question is whether Trump is violating the Presidential Records Act of 1978, which requires all the president’s records be preserved for eventual release to the public on a delayed basis long after the commander in chief leaves office.
The National Archives and Records Administration is tasked with managing the records. Reached by CNN on Friday, NARA spokesman John Valceanu said the PRA should be followed but directed all questions about the current president to the White House.
Reached for comment, Kelly Love, a White House spokeswoman, said Saturday, “We have systems in place to capture all tweets and preserve them as presidential records; even if they have been deleted.”
She did not immediately provide further details, including whether those “systems” would apply to Trump’s personal account as stringently as they do the @POTUS account. The PRA specifically does not distinguish between personal and work efforts, and the last provision of the law prohibits personal communications unless there is government redundancy.
Guidance from NARA on the act said presidential records “can be in any media, including textual, audiovisual and electronic.” This would almost certainly include tweets from the President’s personal account as it does to the official @potus account handed down to Trump from former President Barack Obama.
Trump often deletes tweets from his personal account over spelling mistakes and then quickly tweets corrected versions. There are caveats in the law for personal records, like a private diary, but the act “requires the president and his staff to take all practical steps to file personal records separately from presidential records.”
The responsibility for complying with the law lies with the President. Whether the President has violated the spirit of the law is a trickier question.
“The PRA gives ownership of all presidential records to the United States (we the people), and all of those records must be transferred to the Archivist of the United States after the president leaves office,” Shontavia Johnson, a law professor at Drake University Law School, wrote in an email to CNN. “The only presidential records that can be disposed of are those that ‘no longer have administrative, historical, informational, or evidentiary value.’ To completely dispose of presidential records, including tweets, the president has to go through certain complex steps with the Archivist, who has years of training maintaining such information.”
Kathleen Clark, an ethics expert and professor at Washington University Law, echoed some of Johnson’s thoughts but added, “On the other hand, a government official — even the President — has the right to speak in his personal capacity about his work.”