Donald Trump made bold use of Twitter during his campaign and, so far, there are few signs this will change now that he is president. But in recent days some are asking if one of Trump’s old Twitter habits—deleting certain tweets—may violate the law.
The controversy turns on how record-keeping rules should apply in the age of Trump and social media, and who is responsible for the president’s tweets. Here’s a Q&A that explains the fuss:
What did Trump do on Twitter that may be “illegal”?
On his inauguration day, Trump or one of his staff tweeted that the president was “honered” to serve. Later that day, the tweet containing the spelling mistake disappeared, though not before people made a copy. Here’s a screenshot of the tweet (the original is no longer visible on Twitter):
A follow-up tweet with the correct spelling of honored also disappeared a short time later. News outlets took note of the deletions, and many published headlines suggesting what Trump did was “illegal” or “may have broken the law” by failing to comply with the Presidential Records Act.
So what does the law actually say?
The Presidential Records Act of 1978 says official White House records are public, and requires the president, vice president, and their staffs to keep those records while in office, and turn them over to the National Archives after they leave. There are clear exceptions for “personal” records such as private journals.
A 2014 update to the law makes clear “records” also cover email and all sorts of other electronic communications. It also gives the Archivist of the United States the final say in deciding what constitutes a federal record.
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Did Trump violate the law when he deleted the tweet?
It’s hard to say. In response to the controversy, a National Archives spokesperson said tweets clearly do count as presidential records—but that the agency is still discussing whether altered or deleted tweets do as well.
A clear answer is also difficult since the law hasn’t really been tested in court. A controversy arose over missing emails from the George W. Bush presidency and led some to suggest it was a violation of the Presidential Records Act— but nothing really came out of it.
Does it really matter?
Good question. The point of the law is to preserve a record of the presidency and, when it comes to Twitter, the National Archives won’t have a difficult time finding and saving tweets. The agency has already created a way to preserve a wide variety of social media records—”from tweets to snaps,” a reference to Snapchat—from the Obama presidency.
As for Trump’s deleted tweet on Inauguration Day, is it that important to preserve a copy of every draft and typo the White House produces in the next four years? And if Trump deletes something of more consequence (like his earlier retweets of white supremacists) in the future, organizations like ProPublica are already preserving a record of all his tweets.
On the other hand, the Twitter episode also raises larger questions of whether President Trump (who frequently accused Hillary Clinton of breaking the law by using a private server) is putting in place a system, required by law, to manage and preserve all his other records. That will likely become clear in coming months.