Former President Barack Obama was the first commander-in-chief to ever send a tweet, but President Donald Trump is pioneering an approach to mass communication that may put Twitter at the center of his strategy, raising legal and security questions.
In his first week on the job, Trump has used an unsecured Android phone to post tweets from his personal Twitter account, and to delete them. His staff initially used a personal email to arrange his government Twitter account, which was updated to a government email on Thursday.
Experts said these activities, while perfectly legal, create avoidable risks.
Using an unsecured phone, or personal email registration, makes the president more susceptible to hacking.
Some Members of Congress are now urging Trump to switch to a secure device, after the New York Times reported the president is tweeting from “his old, unsecured Android phone.” The Secret Service has told past Presidents that they should only use a secure phone.
Even beyond cybersecurity, the ad-hoc approach suggests the Trump White House has not fully adjusted to the complexities of life in the federal government.
When Trump deleted a tweet, he likely violated the President Records Act, a 1978 law that requires all presidential writings be preserved. Congress recently amended it to include electronic records.
“If he uses his Twitter account for official presidential business, it should be subject to the Presidential Records Act,” Caroline Mala Corbin, a constitutional law professor at the University Miami, said.
Congress passed the law “after the Watergate scandal and President Nixon’s attempt to hide his records,” she said, to establish that all presidential records “must be preserved.”
The Obama administration followed a policy of treating all tweets by the President, or his staff, as subject to the act’s preservation rules.
The choice matters, because material governed by the President Records Act, whether public or private, is preserved and formally transferred to the National Archives for posterity.
Destroying such records is prohibited, based on the idea that it is impossible to know which records may be important in the future; and that legally, government records are the property of the public — not the individuals who hold a given office.
“We the people own these records,” Corbin said.
While Trump has likely violated the Act by deleting tweets, the issue is only a matter of paperwork, not a crime.
“The Act does not create a mechanism for someone to go into court,” says Scott Nelson, an attorney who handles government litigation, “and enforce it against the President.”
The top federal court in Washington, the D.C. Circuit Court of Appeals, ruled in 1991 that judges cannot review the President’s decision to follow or ignore the Records Act.
Finding in favor of President George H.W. Bush, the court found Congress drafted the law in a way that made it “one of the rare statutes” that simply prevents judges from enforcing it.
Constitutional law professor Michael Gerhardt stressed that any archival problems associated with deleting tweets are fixed by the medium itself.
“Whatever harm arises from this is not particularly significant, because it's all happening in public,” Gerhardt said.
“The concern behind the Presidential Records Act has to do with communications made by the president that are not archived,” said Gerhardt, who served as counsel to Democratic Sen. Pat Leahy when he chaired the Judiciary Committee.
Other experts cast the topic as an issue for history books, not legal compliance.
Some tweets “may seem utterly trivial,” notes Nelson, an attorney who has represented a president and members of Congress. “But from a historical standpoint, that the president on a particular day was so exercised about a particular subject,” he said, “that is a matter of historical interest.”
Eugene Volokh, a constitutional law professor at the University of California Los Angeles who has been blogging since 2002, suggested the interest in Trump’s tweets will only grow as he forges new ways to address the nation. “FDR was known to have pioneered these fireside chats,” Volokh says, “and Trump is now doing fireside tweets.”