Trump Flouting Presidential Records Law, Nonprofits Claim

WASHINGTON (CN) – Two government watchdog groups sued President Donald Trump on Thursday, claiming the Twitter-loving leader of the free world and his staff skirt accountability rules when it comes to preserving presidential communications.

In a federal lawsuit filed in Washington, the nonprofit Citizens for Responsibility and Ethics in Washington and the National Security Archive, an investigative research institute and library, contend Trump and his entire administration blatantly disregard the Presidential Records Act.

“The evidence to date suggests that President Trump and others within the White House are either ignoring or outright flouting these responsibilities. From early on in this administration, White House staff have used and … continue to use certain email messaging applications that destroy the contents of messages as soon as they are read, without regard to whether the messages are presidential records,” the complaint says.

“Presidential statements made on Twitter sent from the President’s personal Twitter account, which are subject to federal record-keeping obligations, have been destroyed,” it continues. ” The president also has implied that he is secretly tape-recording some or all conversations with Administration officials, and it is unclear if these tapes are being preserved.”

The organizations say their filing is particularly timely given the president’s firing of FBI Director James Comey in May.

But they say Trump’s flouting of the law goes all the way back to his inauguration.

Enacted in 1978, four years after former President Richard Nixon resigned amid the Watergate Scandal, the Presidential Records Act established ownership of presidential and vice presidential records. It imposed record-keeping requirements on the president and vice president and authorizes the National Archives and Records Administration, to preserve and make presidential records publicly available.

The plaintiffs contend that since Trump took office, “decisions normally made or implemented by executive branch agencies evade disclosure under laws like the Freedom of Information Act, the Federal Records Act and public review and comment under the Administrative Procedures Act.”

Instead, the complaint says, “records that the public otherwise would have the right, under the law, to access because they would be agency records subject to disclosure under FOIA are improperly cloaked as presidential records subject to the president’s exclusive control and beyond the reach of the public.”

All of this, the plaintiffs argue, could put the very legitimacy of Trump’s oath to uphold the U.S. Constitution into question.

“The actions … have prevented federal agencies from complying with their statutory responsibilities [and] violate the constitutional requirement that the president take care that the law be faithfully executed,” the complaint says.

Electronic and  instant messages, texts, voicemails and other communication records must be preserved. By law, presidential records aren’t subject to a FOIA while a president is in office. They become available five years after that term.

Some classified materials cannot be requested for 12 years after a president’s term.

“Using certain communications technology that prevents the preservation of a record almost from when it is created deprives and will continue to deprive the plaintiffs of eventual access to the documentary history of this presidency,” the complaint said.

Referencing a Jan. 24 report in The Wall Street Journal, the plaintiffs pointed to the White House staff’s use of Signal, an encrypted peer-to-peer messaging application. The plaintiffs also said staffers reportedly use Open Whisper Systems, another private software organization unaffiliated with the U.S. government.

The plaintiffs say neither Signal nor Open Whisper are contracted to “segregate, control, preserve or maintain documentary materials related to the President’s conduct of constitutional, statutory, official or ceremonial business.”

A Feb. 13 Washington Post report indicated some of Trump’s staffers “have resorted to a secret chat app – Confide – that erases messages as soon as they’re read,” the complaint stated.

This potentially flagrant violation is coupled with the President’s official and “unofficial” use of Twitter. Switching from his own personal account to his presidential one, he can and does delete tweets, making full preservation nearly impossible.

“Despite the President’s day-one tweet promising to return power to the people, he has deprived the public of the opportunity to exercise any power by cloaking presidential actions in a veil of secrecy. At the outset of the Trump Administration, the EOP issued gag orders prohibiting or limiting federal agencies such as the Environmental Protection Agency, the Department of Health and Human Services, the Department of the Interior, including the National Parks Service, and the Department of Agriculture from speaking to the public and the press,” the plaintiff’s said.

Transparency also went curbside when the president asked congressional staffers to help draft his first Muslim travel ban executive order but only under the cloak of a nondisclosure agreement. Transparency also died when Trump discontinued the publication of White House visitor logs.

Most troublesome, perhaps, is the hypocrisy national security concerns and data leaks.

The President told an Associated Press reporter in January, “if you have something really important, write it out and have it delivered by courier, the old-fashioned way. Because I’ll tell you what: No computer is safe.”

“Despite this statement, the President, his staff… heavily use electronic messaging tools and platforms to conduct presidential and federal business,” the complaint said.

The plaintiffs are represented by George Clarke and Mireille Oldak of Baker and McKenzie in Washington.

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