Carper Questions Trump Administration’s Compliance with Federal Records, Transparency Laws

WASHINGTON—This week, U.S. Senators Tom Carper (D-Del.) and Claire McCaskill (D-Mo.) sent oversight letters to both White House Counsel Donald McGahn and U.S. National Archives and Records Administration (NARA) Archivist David Ferriero requesting information on the administration’s compliance with the Presidential Records Act and the Federal Records Act.  

The letters follow reports of President Trump deleting tweets, White House top staffers using applications on their phones that automatically delete messages, and the use of private email and personal social media accounts for official business. These and other actions occurring in the administration are in potential violation of the Presidential Records Act and the Federal Records Act.

“Considering then-candidate Trump’s considerable focus on the protection and preservation of federal records while on the campaign trail, I expect President Trump’s White House staff to enthusiastically comply with our federal transparency laws that are so vitally important,” Senator Carper said. “The American people, both now and in future generations to come, have a fundamental right—enshrined in the Presidential Records Act—to have access to the official business of this administration. We must ensure that administration officials are not acting in violation of federal record-keeping laws and leaving Americans in the dark.”

In the letter to White House Counsel Donald McGahn, the senators called for an in-person briefing on how White House officials will ensure full government accountability and transparency. In the letter to Archivist David Ferriero, the senators ask a number of questions to understand how NARA is addressing growing concerns over the Trump Administration’s commitment to federal record keeping requirements while noting that any effort by the Administration to prevent leaks of information to the press is not a recognized exception to federal recordkeeping requirements.

The text of both letters are copied below.

March 3, 2017

Donald F. McGahn
White House Counsel
Eisenhower Executive Office Building
1650 Pennsylvania Avenue, NW
Washington, DC 20501

Dear Mr. McGahn:

We write again to express our concern and request information regarding the Trump Administration’s compliance with the Presidential Records Act (PRA) of 1978.   Since January 20, 2017, the Trump White House has engaged in practices that raise serious questions about this Administration’s compliance with government transparency laws, including the PRA.  The American people deserve to have a transparent and accountable federal government.

The PRA governs the preservation and retention of official records of Presidents and Vice Presidents.  The National Archives and Records Administration (NARA), which was established by Congress to preserve and care for the records of the United States government, notes that the PRA changed the “legal ownership of the official records of the President from private to public.”  The statute created a definition of Presidential records and made clear that such records belong to the public, placing responsibility for the custody and management of incumbent Presidential records with the President.  The PRA defines the term “Presidential records” as:

documentary materials, or any reasonably segregable portion thereof, 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 the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

The PRA also has a disclosure requirement for official records created using non-official electronic messaging accounts.  The statute allows for disposal of presidential records only if they “no longer have administrative, historical, informational, or evidentiary value” and once the President has obtained the views of the Archivist of the United States on the proposed disposal. 

Public reports and a close review of the conduct of several senior White House officials raise serious concerns regarding the Trump Administration’s commitment to compliance with the PRA.  For example, the Washington Post recently reported that Steven Bannon, Chief Strategist and Senior Counselor to the President, may have exchanged regular text messages with Speaker of the House Rep. Paul Ryan.  It remains unclear if any such messages have been preserved, but text messages present particular preservation challenges because they are not typically stored on a government server. 

According to numerous public reports, members of President Trump’s White House staff are transmitting sensitive work-related information using a communications application that automatically deletes messages.  The Independent reported that White House staffers are using a “confidential messenger” app called “Confide” that deletes messages once they have been opened on a device, leaving no record of them or their content thereafter. The company’s website indicates that Confide allows users to send messages “without the risk of what you say being forwarded on or permanently stored.”   Confide messages cannot be printed or archived and the company provides “end-to-end encryption to ensure conversations remain confidential … Even we at Confide cannot decrypt or see any messages.” The app allows users to transmit text messages, photos, documents, and voice messages, and also provides two forms of screenshot protection, which prevents recipients of an image from taking a screenshot of it.  Use of private messenger applications such as Confide by White House personnel to conduct official business flies in the face of the PRA and the principles of government transparency.

White House officials’ use of social media platforms such as Twitter also gives rise to important questions regarding PRA compliance.  The PRA makes clear that its requirements also apply to presidential records created by White House personnel using non-official electronic messaging accounts. A review of the Twitter practices of several senior White House officials reveal troubling inconsistencies in the treatment of presidential records created using this digital media platform. For example, White House Chief of Staff Reince Priebus, who has maintained a personal Twitter account “@Reince” since February 2009, created an official Twitter account for use in his official capacity.  Mr. Priebus’s official government Twitter account, “@Reince45” was created in November 2016 and states explicitly that “Tweets may be archived: http://wh.gov/privacy.” Although Mr. Priebus had previously used his personal Twitter account to share information regarding government business, on February 8, 2017, he tweeted from his personal Twitter account stating, “Be sure to keep up with everything going on at the @WhiteHouse by following my official account, @Reince45.” 

Mr. Priebus’s deliberate segregation of his personal Twitter account from his official government Twitter feed stands in direct contrast to other senior White House officials who continue to use their personal Twitter feeds for official purposes.  For example, Kellyanne Conway, whose personal Twitter account “@KellyannePolls” identifies her as “Counselor to the President”, has repeatedly used this account to report and promote official White House business.  On February 7, 2017, Ms. Conway tweeted “Sheriffs join @POTUS in the Oval [Office], following roundtable discussion of listening to, not lecturing, law enforcement” and posted a picture of President Trump in the Oval Office with law enforcement officials.  Likewise, Omorosa Manigualt, Assistant to the President and Director of Communications for the Office of Public Liaison, routinely uses her personal twitter account “@OMAROSA” to tweet about official government business in real time. On February 9, 2017, Ms. Manigualt tweeted “Dinner with future leaders of this Nation-  @WestPoint_USMA Cadets @VP and @SenatorTimScott” along with a picture from the event with Vice President Pence.

The use of a personal Twitter account to conduct official business is not impermissible under the PRA, but several incidents raise questions regarding whether President Trump’s senior officials are complying with the law. After reports that Ms. Conway retweeted a white nationalist Twitter account, Ms. Conway stated: “I don’t know who had access to my account” and she subsequently deleted the tweet. It remains unclear why a senior White House official who routinely uses her personal Twitter account for official White House business would not sufficiently maintain the security of that account or delete tweets related to her work in the White House.  Ms. Manigualt also deleted a tweet referring to allegations that she physically intimidated a White House reporter as “fake news.”  Media reports indicate that in the deleted tweet Ms. Manigault accused the reporter of making up the story in an effort to increase her book sales.  Under the PRA, presidential records should not be destroyed without prior consultation with NARA and covered officials such as Ms. Conway and Ms. Manigault could be subject to disciplinary action for failure to preserve records created on non-official accounts.

The President’s own frequent use of Twitter and regular practice of deleting tweets raises similar PRA concerns.  For example, on January 21, 2017, President Trump reportedly deleted a tweet from his personal Twitter account “@realDonaldTrump” that misspelled the word “honored.”  The President initially tweeted, “I am honered to serve you, the great American People, as your 45th President of the United States!”  The tweet was then quickly deleted and replaced with an identical message that spelled the word “honored” correctly.  As The Daily News reports, President Trump has erased misspelled messages prior to assuming office, but that practice has continued since he came under the purview of the PRA.  Public reports have highlighted other instances where tweets related to government business came from the President’s personal Twitter account, but were subsequently deleted, including one tweet posted during a foreign military operation.

On January 30, 2017, we wrote to you regarding public reports of senior White House officials using private email accounts through the Republican National Committee.  Although the White House has not yet provided a response to that letter, the recent events detailed above demand further inquiry from Congress.  The PRA states clearly that if there is an intentional violation by a covered official–including any individual who advises or assists the President or Vice President– that official can be subject to disciplinary action.  The American people and their representatives in Congress have a right to know if White House officials are following the PRA and whether they will be held accountable if they violate the law.

In order to fully assess and understand the Administration’s records preservation policies, please provide our staffs with an in-person briefing regarding compliance with the Presidential Records Act not later than March 30, 2017.  In addition to the topics raised in our January 30, 2017 letter, White House staff should be prepared to discuss the steps the White House has taken, or plans to take, to determine whether President Trump, or any covered officials on President Trump’s White House staff, are using ANY non-government accounts, including personal devices and social media, to conduct official business.  We also ask for the following documents:

If your office determined or determines that President Trump, or any covered officials on President Trump’s White House staff, did use or are still using such accounts for official business, please provide a list of those individuals as well as a written response outlining how the White House intends to ensure those individuals’ compliance with the Presidential Records Act; and

With respect to President Trump’s two Twitter accounts (@realDonaldTrump and @POTUS), documents and information related to how the White House is ensuring the preservation of all tweets and other records created using these accounts, including those that may be, or have been, deleted.

Should you have any questions regarding this inquiry, please contact Donald Sherman with Ranking Member McCaskill’s staff at [redacted] or Roberto Berrios with Senator Carper’s staff at [redacted].  Thank you your prompt attention to this request.  We look forward to your response.

With best personal regards, we are

                                                                        Sincerely yours,                                                         

Claire McCaskill                                                         Tom Carper
Ranking Member                                                        U.S. Senator

cc: The Honorable Ron Johnson
Chairman

The Honorable David S. Ferriero
Archivist of the United States
U.S. National Archives and Records Administration

 

March 7, 2017 

The Honorable David S. Ferriero

Archivist of the United States

U.S. National Archives and Records Administration

700 Pennsylvania Ave, NW

Washington, DC 20408

 

Dear Archivist Ferriero:

We write today regarding concerns over compliance by President Donald Trump’s Administration with the Presidential Records Act and the Federal Records Act.

As you know, we previously raised concerns over several Trump Administration recordkeeping practices.  In February, we wrote to White House Counsel Donald McGahn regarding public reports that at least four senior officials in the Administration maintained active email accounts on a private email system while serving in the White House.  We also raised concerns last month with Department of Defense Secretary James Mattis over whether President Trump’s reported use of a personal, unsecured smartphone ensures that presidential records created through the use of this device are being properly preserved.  Most recently, we sent a second letter to White House Counsel Donald McGahn related to White House officials’ use of social media platforms, such as Twitter, that may not comply with federal recordkeeping requirements.

In addition to our prior concerns, two recent reports have since come to our attention, raising further concerns that federal recordkeeping requirements are being skirted in an effort to prevent press leaks.  Public reports indicate that White House staffers, including staffers from the National Security Council and the Office of the Press Secretary, are using a smartphone app known as Confide for work-related communications.  Confide uses “military-grade end-to-end encryption” to allow individuals to communicate digitally through messages that self-destruct. Public reports have also raised concerns about the efforts of the U.S. State Department to contain press leaks. According to a memorandum prepared by the State Department, officials have been directed to avoid discussing policy issues via email in order to prevent potential leaks.  Instead, the memo reportedly instructs State Department officials to make requests for policy information and guidance via telephone or in-person conversations.

Each of these reports, across multiple White House offices and federal agencies, raise serious concerns. Both the Presidential Records Act and the Federal Records Act require covered officials to preserve work-related communications.  White House staff and federal officials should not feel pressured to avoid communicating in the manner that best facilitates the fulfilment of their professional responsibilities.  The policy outlined in the State Department’s memo undermines the Department’s ability to work in the most effective and efficient manner possible to potentially avoid negative media coverage and congressional oversight.  While our goal is not to encourage inappropriate leaks of presidential or federal records, prevention of any such leaks is not a recognized exception to federal recordkeeping requirements, nor does it outweigh statutory recordkeeping requirements.

In 2014, Congress recognized the importance of the Archivist of the United States by recently granting the Archivist final determination as to what constitutes a Federal record.  The National Archives and Records Administration (NARA) plays an essential role in preserving our history as the nation’s federal record-keeper.  In order to better understand how NARA is addressing the growing concerns over the Trump Administration’s commitment to federal recordkeeping requirements, we ask that you please provide the following information by March 21, 2017:

Has any staff from the White House or offices within the Executive Office of the President consulted NARA since January 20, 2017 regarding compliance with the Presidential Records Act or the Federal Records Act? If so, has NARA provided any guidance to the White House or the Executive Office of the President? Please provide a copy of any written guidance.

Has NARA provided, or been asked to provide, guidance to any federal agency regarding methods to ensure that President Trump’s communications made through this personal smartphone are preserved? If so, please provide a copy of any written guidance and a list of any agencies that have requested such guidance.

NARA considers President Trump’s tweets as presidential records that need to be preserved for historic purposes. Has NARA made a determination of whether the Trump Administration must also preserve altered or deleted tweets? If so, please provide this determination. If not, please indicate when NARA anticipates making such a determination.

Is NARA aware of any federal agencies or offices within the Executive Office of the President using smartphone apps including, but not limited to, Confide for work-related communications? Has NARA provided any guidance to federal agencies or offices within the Executive Office of the President on the use of smartphone apps that do not preserve work-related communications? Please provide a copy of any written guidance.

Is NARA aware of any government official at federal agencies or offices within the Executive Office of the President who have been instructed to avoid using email as a method of work-related communication for fear of press leaks? Has NARA provided any guidance to any federal agencies or offices within the Executive Office of the President on whether, and under what circumstances, it is appropriate to instruct covered officials to avoid using email for work-related communications, or on how to preserve the content of telephonic or in-person work-related communications? Please provide a copy of any written guidance.

If you or members of your staff have any questions about this request, please feel free to ask your staff to contact Donald Sherman with Ranking Member McCaskill’s office at [redacted] or Roberto Berrios with Senator Carper’s office [redacted]. Thank you very much for your attention to this matter.

With best personal regards, we are

                                                Sincerely yours,

Claire McCaskill                                                         Tom Carper

Ranking Member                                                        United States Senator

cc:        The Honorable Ron Johnson

            Chairman

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