As the country grapples with the hyperpartisan struggle over the impeachment and acquittal of Donald J. Trump, it’s worth reflecting on an arcane bit of legal history that could have wide-ranging implications that continue to echo long after these current questions are decided: the Presidential Records Act of 1978 (PRA).
The law, passed as part of the Watergate Reforms in the aftermath of Richard Nixon’s assault on our country’s institutions, sought to ensure that hard-copy — and now digital — records generated by the President, Vice President and their respective staffs are preserved for the historical record. It is an interesting study in how aging laws are struggling to keep up with the rapid expansion of technology, and, given the current political climate in which questions of presidential records management are concerned — especially with regard to social media — a deeper look is a worthwhile effort.
From the average taxpayer’s perspective, the law is largely common sense. The President and his teams work for the taxpayers — ergo any documents or records they create during their official work belong to them. So the Presidential Records Act defines exactly what a “record” for the purposes of the statute is, who is responsible for them, and what is ultimately done with them.
What is the Presidential Records Act?
Most people have never heard of the PRA, and for good reason: it only applies to a tiny subset of the overall government: the Executive Office of the President (EOP)— and, even then, only certain subsections or “components” of the EOP such as the White House, Vice President’s Office, the Office of Management and Budget and the National Security Council for example.
For those of us who worked there, it wasn’t uncommon for technologists and lawyers to keep a cheat-sheet nearby that had a list of the components subject to the legal obligations of the PRA to reference on a daily basis.
Every other agency or office of the Executive Branch that is not covered by the PRA is governed by another law for a similar purpose: the Federal Records Act (FRA). The FRA covers a lot of the same things, but, for obvious reasons, is a lot less dramatic and gives a lot more latitude to individual agencies regarding disclosure and archiving.
The PRA was crafted as a direct response to Nixon’s infamous tape recordings from the Oval Office. And, as such, it conjures old scars of those discussions and litigation: What happens when a president documents a conversation or a directive with potentially incriminating or historically relevant information — and then tries to conceal or even destroy those records? The PRA makes it illegal to do so because those records are owned by and ultimately accountable to the American people (44 U.S.C. §§ 2201).
First, who is responsible for these records? The PRA says the President is:
“…the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records…” (44 U.S.C. §§ 2203)
Then, what exactly constitutes a “record” for this purpose?
“documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President (EOP) whose function is to advise and 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...” (44 U.S.C. §§ 2201)
So, literally any documentary material passing to or from the President (and the Vice-President) and, by extension, their staff that has anything to do with the performance of the official duties of the office is considered a presidential record. That is a tremendous amount of paperwork and records!
Everything from an official bill signed during a Signing Ceremony all the way through a note scribbled on a Post-It or napkin while working after-hours in the Residence. It’s all-encompassing. For example:
The determination is simple: Is it documentary material of importance, and was it created during the official discharge of the office of the President? If so, it’s an official presidential record — and it must be preserved by the President on behalf of the American people.
Next, what happens with these records? They are organized and cataloged for historical purposes and set on a disclosure schedule according to their various categories of sensitivity. Much of the history we’ve read about since Nixon came from “documentary materials” that were preserved thanks to the Presidential Records Act. Through the lens of time and history, records created in the moments surrounding the lofty decisions that a president makes can be fascinating artifacts of history within themselves. And many of them together could be woven into a colorful tapestry of presidential history in the right hands.
There are also some very important stipulations that come with it:
- The records must be kept by a sitting president, but they can be given over to the Archivist of the United States, whose official duty it is to oversee the National Archives. This often happens well into a presidential term when boxes and reams of records (or terabytes of digital records) need to be removed from operational rotation because they’re unlikely to be needed, but still preserved and awaiting official review and disposition.
- Those records given over to the Archivist may not be disclosed during a sitting president’s current term without presidential approval (as they are technically in custody of them until their term ends)
- Only at the end of a president’s term in office does the Archivist become responsible for custody of the records and control access to them and ultimate disclosure of them.
- Once the Archivist takes custody of documents after a President leaves office, various timers begin that require public disclosure and access to the records in a timely manner (44 U.S.C. §§ 2203).
Note that there are a few exceptions to these rules. Personal records are exempted entirely — those records that have no relation to the official duty of the office. Records that are classified, confidential, or privileged under various exemptions and other legal frameworks can also be excluded. But by and large, the vast majority of these records are covered by the PRA and due to be released back to the American people — their owners — in a timely manner.
Technology Challenges Presented by the PRA
Right away, the PRA presents some interesting technology challenges unique to the highest office in the land. For example, in most cases system architects can rely on storage clean-up and reclamation on databases and file systems with regular certainty. Most organizations have policies that only allow for limited total sizes on company mailboxes for employees, or yearly audits of file systems are performed that keep storage sizes — and costs — manageable. Most databases journal transactions to temporary files and then purge them when processing is completed…etc. Disk space and cloud storage in the year 2020 is a relative commodity item, but historically disk space was costly, precious and not a resource to be squandered with unnecessary files.
For so many of us working in technology careers, keeping storage under control is an important fundamental system architecture principle. How many system admins have written automated scripts that delete log files so that a disk doesn’t fill up and crash a database server? It’s all too common in our line of work.
But that’s not usually an option in the cases of the PRA. With the PRA, one of the sharpest adjustments I had to make as a digital staffer working at the White House was to adopt a posture to a preserve-all-by-default policy. In terms of messaging systems, databases, file storage, all of it — if a person or a system can create a potential presidential record, then that record must be preserved until the Archivist can rule on it.
I can’t tell you how many advanced discussions I’ve been involved in with other system engineers or lawyers discussing the finer points of transactional records versus pre-decisional drafts versus deliberative process records, version control, snapshots and backups, and how to treat these storage questions within systems architecture. The rule, however, at the end of the day was simple: When in doubt, archive it so that it can be examined later.
Every letter sent to President Obama, every tweet sent from official White House accounts, every digital message sent to the Correspondence Office via Whitehouse.gov, every bulk e-mail sent to citizen listserves, every petition signature signed, every blog post written, every one of those ubiquitous green hard-copy notebooks staffers dutifully carried to meetings they covered for their boss — all of it was preserved and archived so that future generations could have a in-depth glimpse at how the Obama Administration conducted itself on a day to day basis. All thanks to the Presidential Records Act.
Ethical and Custody Concerns Presented by the PRA
The Presidential Records Act also raises interesting ethical concerns and custody discussions around how to adapt old laws to new technologies.
For example, both the @BarackObama and @realDonaldTrump Twitter accounts existed before either man was officially sworn in as president. @BarackObama was one of the most popular and impactful accounts used by a presidential campaign — ever — for its time. And @realDonaldTrump was how private citizen Trump expressed his thoughts online long before he announced he was running for higher office. But are how are they viewed under the PRA? That’s a more complicated question.
Let’s take @BarackObama first: It was primarily a public figure account for the early days and then became the official campaign handle from the announcement at Springfield up through the end of President Obama’s second term. It wasn’t used in an official capacity as a White House account — only ever administered by either the person of Barack Obama or the campaign. Official administration operations were primarily sent through @WhiteHouse for many years — usually with the now-quaint “-bo” appended to a tweet that signified it was sent from the man himself. And later, once the White House Counsel legal team was happy the PRA had been satisfied, the @POTUS account was activated on May 18, 2015 in an official capacity to represent the person of the President himself versus the office of the White House:
Given the standard discussed above, the PRA shouldn’t apply to @BarackObama because it was never used in conjunction with the official duties of the office.
But @realDonaldTrump on the other hand is arguably even more visible and impactful than either @WhiteHouse or @POTUS since 2017. When Donald Trump wants to disseminate a message on Twitter, he takes to @realDonaldTrump instead of the other accounts as his disposal (at the time of this writing @WhiteHouse had ~20M followers versus @realDonaldTrump’s 72M).
In this case, I’d argue that the PRA absolutely applies since it is the de facto account of the person of the President of the United States, operating in his official capacity, whenever a tweet is sent from that account while he is in office. Even if he did tweet personal opinions or something silly like a grocery list to the First Lady, this account is so public and so visible and so co-mingled with his official duties as President, it is hard to justify that most of these records aren’t subject to the PRA.
Interestingly, Twitter created a novel way to handle the custodial hand-off between official PRA accounts during a presidential transition — something that had never been done before.
On January 20, 2017 Twitter rotated the handles for all the official accounts and activated brand new ones in their place in order to preserve the old ones and give the new team to get a fresh start.
For example: @WhiteHouse for President Obama became @ObamaWhiteHouse and @POTUS became @POTUS44. Twitter has provided the world with an additional, instantly-available PRA archive of all the official #44 accounts in perpetuity — directly on its platform. Presumably, @WhiteHouse under Trump will become @TrumpWhiteHouse and @POTUS will increment to @POTUS45 following this same standards and for future generations to examine. But what about @realDonaldTrump? That remains to be seen.
But it’s interesting in and of itself — that every record coming across @realDonaldTrump is a presidential record during his time in office — and presumably, every tweet he sends in most cases is publicly available. But what happens when those records are deleted? I’d argue that’s generally a violation of the PRA — after all, the PRA was written as part of the Watergate reforms in direct response to the fear in Congress that Richard Nixon would destroy the audio tapes he had made of his incriminating recordings in the Oval Office.
Just like any email sent by a staffer, any note written, any letter printed in a White House office for official business, a tweet from the President of the United States, even if it contains a typo or is ephemeral, is important to the historical record and should be archived. Luckily, it’s easy enough to systematically archive every tweet issued from accounts such as that and store them safely in digital archives that can be turned over to the Archivist for proper cataloging. And while a typo may be embarrassing, it’s important that they not be deleted merely for embarrassment’s sake.
But even more interesting than the question of deletion is the fact that not everything on Twitter is public, right? What about direct messages (DMs)? Wouldn’t it be fascinating to see the DMs from @realDonaldTrump? I think there’s a strong case to be made that every DM sent or received from that account while Donald Trump is in office should ultimately be delivered to the American people.
Twitter is fun, but what about emails?
Beyond Twitter, the PRA raises additional ethical, operational and security concerns. Cases in point: Where is the line drawn around using personal email accounts for official government business? Sound familiar? We will save the Twilight Zone of a certain email server operating out of the basement of a candidate’s home for another day. This is a much simpler exercise: What about White House staff and the First Family?
Well, again, the law is very straightforward. For most unclassified email sent around the EOP, it’s all processed by various arrays of back-office enterprise email servers. And for most of our time under Barack Obama, everyone lugged around those clunky Blackberries which helped ensure the PRA obligations were met.
Blackberries and enterprise email servers are an easy to wrangle in this situation for PRA purposes— archiving technology simply makes a copy of each message anyone sends on the system and tucks it safely away in another database that none of the users can ever access or tamper with. Simply put: In order to do your job, you used the official device and the PRA archive was just handled automatically by the system.
But sometimes extenuating circumstances happen. Maybe it’s late on a Saturday night and news breaks or something unexpected happens and a staffer is out with friends and needs to do some urgent work — but they left their Blackberry at home because who wants to be tethered to the damn thing 100% of the time — even if you work at the White House? Well, still simple enough: If — under extreme and rare circumstances — you just use your personal email to get the job done until you can get back to your official device. Virtually all of the unclassified work most folks at EOP do, while sensitive and necessary to protect with basic encryption and authentication methods, isn’t classified or of national security importance should it be intercepted or leaked. So in those cases, our guidance was that it was usually that it was “acceptable” — though frowned upon — to use your personal email for an emergency. But even then, we were required to ensure the record was kept by forwarding a full copy of the thread or CC’ing our official accounts on whatever email traffic was generated on our personal account — thus ensuring that a proper PRA record was logged and kept even if we didn’t use official White House hardware to send it.
This became less of a problem in the last few years of the Obama Administration when some cool technology came along that would let us install fully partitioned apps on our personal devices that would securely connect to EOP unclassified messaging systems and allow us to use email from our official accounts while not substantially risking leaking that data or leaving copies in places they didn’t belong. But the new apps also gave us incentive to not use personal email accounts because they were right there on our personal devices that we were much more likely to have with us most of the time. It was a huge game changer that allowed most of us to go back to carrying just one phone.
But, as with most things regarding technology security and record keeping, it all comes down to the intent and purpose of the user. There have been many reports — even after the kerfuffle that personal email created all throughout the 2016 campaign cycle — that members of the First Family who are also acting in official capacities as White House staff and advisers to the president have insisted at times on using their personal or commercial email accounts to conduct official business. And beyond those occurrences being acceptable but rare, they were a matter of operational approach that persisted for quite some time.
By many accounts, these weren’t official EOP accounts running on secured apps on personal devices, but personal or commercial accounts that never traversed the EOP unclassified email systems. This is cause for grave concern where adherence to the PRA is concerned. It is entirely possible that the bulk of these emails will never be properly captured — as required by law —for preservation as presidential records for future examination. We can only hope that the officials on the receiving end of those emails have properly archived them (or that the staffers do a thorough and complete transfer of all these emails before the separate from government service) such that we will one day see the whole picture of those conversations.
Further, it’s not just being a concern that the PRA has been violated and records may be lost to the sands of time, this is also a grave national security issue. There is no guarantee those personal devices and accounts being used by the family of a sitting president of the United States have been secured to the proper standards required by an officer of the government of their standing and level of access.
As soon as a foreign intelligence service became aware (or made a reasonable guess) that the First Family was using personal devices and email accounts for official business, those accounts became high-value targets for cyber attack and social engineering attempts.
We can only hope that those accounts haven’t been breached by our enemies — and if they have, that the users were diligent enough to not discuss anything of importance in those communications.
As you can see, co-mingling of personal versus official accounts is a very slippery slope that brushes up against not only presidential record keeping issues, but also matters of national security in some cases. It’s best to err on the side of caution and let the policy and statute guardrails that a lot of very smart people have worked on for decades protect you from yourself.
Political Challenges and High Profile Examples
The PRA is also front-and-center of some of the most explosive political bombshells we as a country have ever seen. Exhibit A for this was the Watergate tapes — and the reason the PRA statute exists in the first place. But we also have other examples of where the PRA has been a key consideration within the politics and lawsuits around major issues in our national discourse:
- President Bush 43 notoriously “lost” millions of emails containing sensitive information around the lead-up to the invasion of Iraq and many of those emails have never been found or disclosed.
- Bush 43 also very unwisely allowed the co-mingling Republican National Committee systems and accounts alongside EOP accounts and many other emails that were never produced around investigations into the dismissal of several US attorneys.
- While John Podesta’s personal emails weren’t explicitly subject to the PRA as he wasn’t serving in an official capacity at the time, his personal accounts being hacked due to his high profile and visibility after leaving the Obama White House and serving as Chairman for the Hillary Clinton Campaign arguably changed the course of history.
- It has been reported that in July of 2017, while President Trump was meeting with Vladimir Putin for over three hours at the G-20, he confiscated the notes taken by the interpreter. Those notes are de facto presidential records, and wouldn’t it be fascinating to know what was discussed?
I could go on for pages with other examples and interesting edge-cases presented by the PRA. We haven’t even touched on text messages and WhatsApp, nor the peculiar cases surrounding email supporting the First Family in the Residence. But hopefully you get my point: The PRA is vitally important as a retrospective tool for history to peek inside the inner workings of any particular White House.
- The PRA presents unique legal, technological, and political challenges that we’ve only begun to explore in this rapidly expanding technology climate
- These records belong to the American people — to whom our elected officials are ultimately accountable
- There is likely much more left undecided that the courts may take up in the coming years as we unwind the Trump administration’s own historical record
- Preserving presidential records gives us a fascinating glimpse into the decision making environment of some of the most historical presidential decisions our executives make
- No amount of regulation or training can overcome a bad actor intent on disregarding proper record-keeping or security
At the end of the day, it doesn’t matter who the president is or what political party they claim; It is of vital national interest that government officials use government-approved devices and technology accounts to conduct their official business. Otherwise, it is very difficult to properly protect both our national security but also the historical record for the ages.
It comes down to the character and intent of the users. As I’ve expounded upon in other pieces, public servants who have a deep respect for the taxpayers they work for and the protective laws and systems in place across our government to ensure our safety and security are much more likely to take the time to learn to do this right and abide by these rules in a way that respects both the security and record keeping aspects of these discussions.
In 2018 it was reported that Donald Trump had a peculiar habit of ripping up documents after he was done with them in meetings. And instead of trying to curb that behavior, the staff simply picked up the pieces and relegated putting them back together to the career records management specialists getting paid quite a lot to act as glorified jigsaw-puzzle assemblers. It just goes to show you that — especially with presidential records — sometimes the buck doesn’t stop at the Resolute Desk.
It’s certainly possible to architect the proper tools, policies, and operating procedures that maintain both security and records management compliance with a reasonable degree of ease-of-use given the right planning, implementation and training. But a lot of that doesn’t seem to be happening in these more high profile cases recently. There is a lot of disregard for both security and proper record keeping.
In these instances, who will enforce the rules? And how can we strengthen our systems and institutions going forward to meet both the challenge of the flawed humans and finicky technology in the highest office in the land? Hopefully, this piece helps you understand the problem better so that we can work on new solutions together.
There is no law nor any technology system that can be crafted that is good enough to overcome a bad actor with time, resources, and motivation on their hands. So if we, as a country and society, want our presidential records in tip-top shape in order to examine them through the long lens of history, we’ll be better served by giving the privilege of governing to those folks better suited and more likely to respect those same values when they’re in office — and working for us.
EDIT 2/6/20 regarding the State of the Union and Speaker Pelosi:
Twitter seems pretty outraged thanks to a notion that seemingly originated here:
As you’ve learned from reading this piece and applying your own critical thinking, this is incorrect. First, that’s a copy of the record — not the actual record itself. Second, it’s in custody of the Speaker of the House — not the President — and therefore not subject to the PRA (there’s a whole other set of rules for the Congress which aren’t germane to this piece). Finally, the record we should be concerned about is either the formal copy handled by the White House Staff Secretary who likely transmitted it ahead of time to the Congress (or “ deposited with any clerk” as it pertains to 18 U.S. Code § 2071) or the physical hard-copy that Trump spoke from. Those are the two that matter.
Hopefully now that you have a deeper understanding of the PRA, you can apply these skills the next time concerns of records management arise. Records management really is everyone’s concern and it’s going to take all of us working together to ensure the complete historical record is preserved.
This piece is part of a periodic Throwback Thursday series where I reflect upon specific moments or themes during my own time with the Obama Administration and carry those lessons forward to the conversation in American civic life and government today. I welcome your thoughts and feedback on how we as citizens approach making government function better for all.
And if you’d like to hear more, I offer a lecture that explores this and other topics encountered during my time at the White House: Beyond the Tweets: Joining Technology with Public Engagement in the Digital-First Obama Presidency.
Disclaimers: I am not a lawyer nor am I a public official any longer. Most of the scope of this piece is grounded in my own firsthand experience in government and my operational understanding of the Presidential Records Act. My job was to oversee teams who built amazing systems and products, which were focused on up-time, security and data integrity — we had other brilliant teams I could lean on who assisted us with the particulars of records management and legal guidance around the more difficult questions in this space.
This piece also doesn’t address the murky areas around things such as the intersection of these accounts and the Hatch Act that prohibits political / campaign speech from official government accounts, nor records that fall under Executive Privilege exemptions, nor anything relating to the entirely separate set of systems and frameworks governing confidential and classified communications. For those questions, you’ll have to explore in other places or consult legal advice in those specific areas…or wait for a follow-up post.