Our country tis of thee,

Sweet land of liberty,

Of thee I tweet

On the first day of his presidency, the newly-inaugurated Donald Trump tweeted out from his personal account @realDonaldTrump (using a reportedly unprotected Android phone): “I am honered to serve you, the great American People, as your 45th President of the United States!” Almost as soon as it was posted, the tweet was quickly deleted and replaced with the same tweet, but without the misspelled word “honered.” (You can see the original tweet, preserved for posterity by some speedy screenshotters, here). While the social media savant is no stranger to the delete and repeat tweet, this was the first time Trump deleted and replaced a Twitter message while also serving as president. (Trump subsequently deleted the second tweet containing the spelling correction and there is no indication on his feed that either tweet ever existed).

Passed after the Watergate scandal, the Presidential Records Act of 1978 requires the preservation of all presidential records.  Destroying records subject to the PRA is prohibited since it is difficult to know what might be important in the future and because government records belong to the public, rather than the individuals who hold office. While the Act is silent on the protocol for tweets or Instagrams, the previous POTUS treated his tweets as official presidential correspondence and had them set up to automatically archive in an effort to preserve the originals.

President Obama only used the @POTUS handle (which now belongs to President Trump) to send tweets and his personal account was run by his nonprofit organization until he left office. Conversely, Trump has continued to use his personal account, @realDonaldTrump, in addition to the @POTUS handle. President Trump has also retweeted tweets from his @realDonaldTrump handle using the @POTUS handle, adding his personal tweets to the President’s official Twitter feed.

Can or should Trump’s personal account be subject to the archiving requirements of the PRA? It seems that any tweets sent in an official, presidential capacity––as his deleted tweet arguably was––should be kept and preserved. But given the intermingling between personal and official accounts, and the president’s insistence on continuing to use both handles, who will be tasked with determining what is presidential and what is not? It may be a question for the National Archives rather than a judge. A 1991 decision from the D.C. Circuit held that judges cannot review a president’s decision to adhere to the PRA or not.

And for those concerned about the use of unprotected email servers by government officials: it appears that President Trump eventually added secure White House addresses to his @POTUS account (in lieu of the private Gmail account he had been using) several days after his inauguration.

– Claire Piepenburg

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