Saturday, February 18, 2017

Breaking the Presidential Records Act: History, Wrongdoing and Democracy

       President Trump's recent behaviour using modern social media and Twitter raises a distinct technological issue involving law and politics.  The deletion and editing of the @realDonaldTrump Twitter account poses questions about whether White House staff, and the President himself, are breaking the law, but also how this breach may be the leading edge of something more troubling.

     As a matter of historical significance, it seems a best practice that all records kept by and about American Presidents should be preserved.  However, the US has also created a statutory obligation, under the Presidential Records Act (1978) 44 USC Chap 22 (PRA), for the preservation of all Presidential and Vice-Presidential records. 

     The original intent behind the PRA was rooted less in the desire to preserve history and more in the fear that evidence of wrongdoing would be erased.  Legislation to protect records related to the President was initially passed  in 1974.  The statute on which the PRA was later based was first passed in the midst of fears about the destruction of records related to what became known as the 'Watergate' scandal. 'Watergate' directly implicated President Nixon in politically motivated criminal wrongdoing and ultimately led to his resignation.

     In the present day, it appears that President Trump may be in breach of these statutory obligations, to preserve Presidential records, when he deletes and edits his social media postings, as pointed out in this recent commentary, Tweet Typos and The Presidential Records Act.  Such records may be disposed of only after the President has sought the views of the National Archivist.  While there are several examples, most recently, President Trump posted a comment criticizing various media outlets.

     Here is President Trump's original tweet:

      The deleted tweet was replaced a few minutes later with a slightly different version of the same tweet, altered mainly by the addition of more media organizations, see here:

    Others have noted that it is likely not only the President, but also members of his staff, who are failing to abide by their legal obligations to preserve records, see comment here.  However, while some may be breaking this law, there is likely little that can be done.  In this respect, the PRA does not provide for any sanctions or penalty in the event of a breach.  At a minimum though, democratic officials in the USA should formally seek the views of the National Archivist as to whether the President and his staff are in compliance with the law.

   While the PRA preserves history, and protects against the destruction of evidence of wrongdoing, it also plays a larger role to maintain a common narrative about the historical record that is important to democratic values. Distorting history is a common enough phenomena in all cultures.*  Most troubling though are past examples where undemocratic regimes have often played fast and loose with the acknowledgement of events, see eg here.  Moreover, blatant disregard for facts and history were a key element in Orwell's cautionary tale, 1984, which warned about manipulation by an authoritarian state: "the past was erased, the erasure was forgotten, the lie became the truth".**

     In this context, the frequency and number of falsehoods being disseminated by the White House since the 2017 inauguration is astounding, see The complete list of all 80 false things Donald Trump has said in his first four weeks as President. Evidence that the President and his staff are now also ignoring their legal obligations under the PRA could challenge the historical record and has the potential to hide any evidence of further wrongdoing.  However, it may also forbode an even greater challenge to democratic traditions and freedoms, in which important public facts and events are replaced by fabrications for political purposes.

*  See eg, Margaret MacMillan, The Uses and Abuses of History (Toronto: Viking, 2008).
**George Orwell, Nineteen Eighty-Four (New York: Harcourt, Brace and Company, 1949) at 74 - 75.