The COVFEFE Act: Presidential Records in the Age of Social Media

One of the reason for the founding of the Concerned Archivists Alliance in the first place was because we feared that Donald Trump and his administration could and might do irreparable damage to the official public record, and might escape accountability for any illegal actions they might take.  Part of our concern lay with the worry that much of what Trump says and does during his term would be considered “unofficial” and thereby not subject to federal records laws.

Just this last week, the 9th Circuit Court of Appeals issued an interesting decision in Hawaii, et.al. Vs. Trump, et.al, in which the court struck down the proposed “travel ban” for Muslims entering the United States from several selected countries. An important but little-heralded part of the decision used Trump’s own tweets (tweeted as @realDonaldTrump) as evidence in the case.

Trump had said repeatedly that the measure was not, in fact, a “ban” that discriminated because of religion but constituted what he called “extreme vetting” and an appropriate national security measure. These statements were belied by Trump’s tweets that did, in fact, call the measure a “ban”. On June 3rd, he tweeted “We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!” The court noted that Trump’s order fails to “provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States”, and in a telling footnote, said that

…the President recently confirmed his assessment that it is the “countries” that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s “travel ban.” See Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM), https://twitter.com/realDonaldTrump/status/871899511525961728 (“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”) (emphasis in original). [PDF, p. 40]

The court also noted Press Secretary Sean Spicer’s June 6th, 2017 response to a question about the status of Trump’s tweets, that “The President is the President of the United States, so they’re considered official statements by the President of the United States.” With these citations, the court has essentially ruled that Trump’s tweets are items subject to legal examination and are part of the public record.  Therefore, what can be best described as Trump’s stream of consciousness expressed digitally, his tweets, take on a new legal and political weight. No longer should these be considered the thoughts of a private citizen, but the official word of the White House. They can no longer be ignored or eschewed, but considered instruments of expressing policy.

So are Trump’s @RealDonaldTrump tweets, through which he conducts much government business, now considered part of the public record and subject to preservation and management by the National Archives and Records Administration? Well, social media as yet is not explicitly covered under the Presidential Records Act as documentary materials, but Congressman Mike Quigley (D-IL) on June 12th introduced the COVFEFE Act (Communications Over Various Feeds Electronically for Engagement), puckishly named for Trump’s now famous Twitter typo, which would amend the PRA to explicitly include “social media”. Quigley points out that “President Trump’s frequent, unfiltered use of his personal Twitter account as a means of official communication is unprecedented. If the President is going to take to social media to make sudden public policy proclamations, we must ensure that these statements are documented and preserved for future reference. Tweets are powerful, and the President must be held accountable for every post.” Quigley also said that “while his personal account has become the de facto account for government business, it is unclear as to whether or not it would be archived in the same manner as the official @POTUS account under the Presidential Records Act [and another] concern relates to President Trump’s frequent deletion of tweets. Including social media in the Presidential Records Act ensures that deleted tweets are documented for archival purposes, and makes deleting tweets a violation of the Presidential Records Act, subject to disciplinary action. (Emphasis added)  In April, National Archivist David S. Ferriero advised the White House to save all of Trump’s tweets, but the COVFEFE Act would mandate this as explicitly part of the law.

This story demonstrates the importance, and the sometimes-complex aspects, of holding any President or any public official accountable to records laws and to the continuity and accuracy of the public record. As archivists and information professionals, we owe to the future to help ensure, whether through advocacy or direct action, that our history is preserved and the actions of those who defend or violate our rights are fully documented.

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