ARE PRESIDENTIAL COMMUNICATIONS BEING SAFEGUARDED PROPERLY?
COMPILATION AND COMMENTARY
BY LUCY WARNER
OCTOBER 14, 2017


THE APPARENT FAILURE IN AT LEAST SEVERAL KNOWN CASES, OF PRESIDENT DONALD TRUMP TO MAINTAIN RECORDS, AS THE PRA (PRESIDENTIAL RECORDS ACT) REQUIRES, IS BEING DEFENDED BY THE DOJ AS BEING WITHIN HIS PREROGATIVE AS PRESIDENT. THE WHITE HOUSE STAFF, AND PERHAPS TRUMP HIMSELF, ARE SAID TO BE USING A FORM OF SMARTPHONE APP THAT AUTOMATICALLY DELETES THE CONTENT OF EMAILS AND TWEETS AFTER THEY ARE READ. ALL SUCH MATERIAL IS SUPPOSED TO BE ARCHIVED FOR FUTURE USE TO SETTLE LEGAL QUESTIONS. I DON’T KNOW WHAT THE PENALTY FOR THAT WOULD BE, BUT IT IS ILLEGAL. THE FAITHFUL DOJ LAWYERS ARGUE THAT THE 1978 LAW CANNOT, DOES NOT BIND PRESIDENT TRUMP. OTHERS THINK THAT’S A FALSE ASSERTION. THE CASE WILL GO TO BE DECIDED SOON. I HAVE TO WONDER, THOUGH, DOES ANYTHING BIND PRESIDENT TRUMP? IF NOT, WE HAD BETTER FIND SOME LAWS AND PROCEDURES THAT WILL.

SOME PEOPLE WILL CONSIDER THIS SUBJECT OF EMAIL AND TWITTER – CLEARLY HIS FAVORITE FORM OF COMMUNICATION – AS BEING TRIVIAL, BUT TO ME, WE MUST HAVE SOME CONTROLS OVER THE PRESIDENT OR HE COULD BECOME A VERY AUTOCRATIC HEAD OF STATE. JUDGING BY HIS BEHAVIOR OVERALL, THAT IS CLEARLY HIS TENDENCY. FAILURE TO FULFILL THAT NATIONAL SECURITY MEASURE SHOULD RESULT IN SOME RETRIBUTION. IN THIS ONE CASE, THE NEED IS THE ABILITY TO PROVE WHAT HE AND HIS STAFF DID AND SAID DAY TO DAY FOR FUTURE REFERENCE.

THIS PRA LAW WAS WRITTEN AFTER WATERGATE AND THE PREPARATION WAS BEING MADE TO IMPEACH RICHARD NIXON; WHO HAD HIS SECRETARY TO ACCIDENTALLY ON PURPOSE ERASE MANY OF THE WHITE HOUSE OFFICE TAPES WHICH CONTAINED EVIDENCE OF HIS COMPLICITY IN THE “PLUMBERS” BREAK-IN AT THE DEMOCRATIC HEADQUARTERS IN THE WATERGATE BUILDING IN WASHINGTON, DC; AND IT SHOWS THE LESSONS WE LEARNED THEN.

IT IS NO COINCIDENCE THAT THE BEHAVIOR OF TRUMP IS SIMILAR TO THAT OF NIXON, FROM THE SECRECY AND PARANOIA TO THE “DIRTY TRICKS” SQUAD. HIS GOAL IS CONTROL AND POWER. IF HE IS LIKE MOST FAR RIGHT THINKERS, HE VERY LIKELY THINKS THAT “THE PEOPLE” HAVE NO RIGHTFUL PLACE IN AFFECTING THE WORKINGS OF GOVERNMENT, AT LEAST IF THEY AREN’T WEALTHY. AT ANY RATE, HE REBELS AGAINST ANY ORDER THAT IS PLACED UPON HIM, AND HAS ALREADY DONE ENOUGH IFFY AND UNETHICAL ACTS TO MAKE ME, FOR ONE, VERY NERVOUS AND MORE THAN A TAD ANGRY.


LISTEN TO THIS MSNBC VIDEO BLOG FOR THE LATEST INFORMATION ON THE TRUMP RECORD KEEPING PROBLEM.

http://www.msnbc.com/rachel-maddow/watch/doj-argues-trump-doesn-t-have-to-preserve-presidential-records-1072310851931
THE RACHEL MADDOW SHOW 10/12/17
DoJ argues Trump doesn't have to preserve presidential records
Rachel Maddow looks at the idiosyncrasies of Donald Trump's legal team, as well as an argument being made in court by the Justice Department that Trump is not bound by the Presidential Records Act to preserve materials from his time in the White House. Duration: 19:06



THE CASE, FILED BY TWO WATCHDOGS, CREW AND NATIONAL SECURITY ARCHIVE, IS DISCUSSED BELOW IN THE FCW ARTICLE. THE TRUMP LAWYERS ARE ALSO SAYING THAT THE FREEDOM OF INFORMATION ACT (FOIA) DOES NOT APPLY TO THE PRESIDENT. I REMEMBER NIXON CLAIMING THAT IF THE PRESIDENT DOES A CRIME, “IT ISN’T ILLEGAL.” I WONDER HOW MANY “CONSERVATIVE” CITIZENS THINK THAT SUCH A THING IS ACTUALLY TRUE. “A DEMOCRATIC STAFFER OF THE HOUSE OVERSIGHT AND GOVERNMENT REFORM COMMITTEE TOLD FCW THAT SUCH CLAIMS ARE INACCURATE IN ALL CASES; AND THAT THE ARCHIVIST CAN BE ORDERED TO PRODUCE THE DESIRED DOCUMENTATION AGAINST A PRESIDENT’S WILL. DONALD TRUMP HAS BEEN SYSTEMATICALLY CHECKING EVERY RESTRICTION THAT IS PLACED UPON HIM LIKE A PETTY CRIMINAL GOING ALONG IN A PARKING LOT TESTING THE LOCKS, PERHAPS TO STEAL, OR PERHAPS TO HIDE IN THE CAR WITH THE GOAL OF GRIEVOUSLY HARMING THE POOR WOMAN OR MAN WHO IS APPROACHING THE CAR CARRYING HIS CHRISTMAS GIFTS.

https://fcw.com/articles/2017/10/10/lawsuit-pra-trump-crew.aspx
Records Management
Can anyone check the president on records management?
By Adam Mazmanian Oct 10, 2017

Press reports that Trump administration staffers were using special messaging applications designed to destroy the contents of communications inspired a lawsuit by two open government groups.

The lawsuit, filed in June by Citizens for Responsibility and Ethics in Washington and the National Security Archive, wanted a federal court to rule that "knowing use" of such burn-after-reading apps and the failure of the administration to issue policy on such apps are violations of the Presidential Records Act.

The Justice Department, in a motion to dismiss the lawsuit, argues that the president has near-total authority over the disposition of presidential records under the law. The government is basing its arguments on a pair of cases from the early 1990s, known in the federal records bar as Armstrong I and Armstrong II, which cover the disposition of electronic records from the National Security Council, and the applicability of the Freedom of Information Act to presidential materials. The motion sets out what read like sweeping authorities for the president when it comes to materials under the Presidential Records Act.

"Courts cannot review the President’s compliance with the Presidential Records Act," the motion argues, and in any case, CREW and NSA lack standing because "private litigants may not bring suit to challenge the President’s compliance with the PRA."

The plaintiffs in the case disagree.

"We think it lacks merit," CREW attorney Anne Weismann told FCW in an email. "Essentially the government is arguing the President has unchecked authority to ignore the Presidential Records Act at will."

Federal records laws got a refresh in 2014, most notably to set a time limit for individuals covered by the Presidential and Federal Records Acts to transfer emails that constitute government records from private accounts to government accounts.

That bill was sponsored by Rep. Elijah Cummings (D-Md.), and went through the House Oversight and Government Reform Committee before passing into law. A Democratic staffer for the committee told FCW, "we would never concede that the president can dispose of any record he wishes."

Additionally, the staffer told FCW, "the 2014 law includes language that clearly allows for the possibility that a court may direct the archivist of the United States to release a presidential record against the wishes of a current or former president."

So who's right? Like a lot of things in federal records law, it hinges on minutiae.

Under the standards set up in Armstrong II, "The PRA does not bestow on the President the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review."

That suggests that it would be potentially problematic to take an instance of something generally considered a presidential record – say an email with a policy memorandum attached – and decide it no longer qualified. On the other hand, it might not be beyond the power of a president to declare that a new class of communications – say disappearing text messages – do not rise to the level of a presidential record.

Jason R. Baron, formerly chief litigator for the National Archives and Records Administration and now an attorney at Drinker Biddle, raised this very issue in an essay for Bloomberg Law. "If White House counsel reads [the statute] narrowly," Baron wrote, "to exclude apps like 'Confide' within its use of the term 'electronic messaging,' resulting in White House staff not being required to copy or transfer presidential records to an official electronic account before individual communications self-destruct, is that decision reviewable?"

This is just one of many records issues related to the Trump administration that are wending through the courts -- others include whether the president has the authority to delete tweets or block users on Twitter. If it turns out that groups like CREW have the standing to sue, it's likely that before long there will be new case law on a range of digital media records issue that would have been unimaginable a decade ago.


About the Author
Adam Mazmanian is executive editor of FCW.

Before joining the editing team, Mazmanian was an FCW staff writer covering Congress, government-wide technology policy, health IT and the Department of Veterans Affairs. Prior to joining FCW, Mr. Mazmanian was technology correspondent for National Journal and served in a variety of editorial roles at B2B news service SmartBrief. Mazmanian started his career as an arts reporter and critic, and has contributed reviews and articles to the Washington Post, the Washington City Paper, Newsday, Architect magazine, and other publications. He was an editorial assistant and staff writer at the now-defunct New York Press and arts editor at the About.com online network in the 1990s, and was a weekly contributor of music and film reviews to the Washington Times from 2007 to 2014.

https://fcw.com/Home.aspx
FCW: The Business of Federal Technology -- FCW


FOR SPECIFIC ISSUES AND EVENTS AS RECENT AS YESTERDAY OCTOBER 13, INCLUDING THE LAW UPON WHICH PRESIDENTIAL AUTHORITY OVER RECORD-KEEPING RESTS, CALLED “PRA” FUNCTIONS, GO TO --
HTTPS://WWW.CITIZENSFORETHICS.ORG/RETAINING-PRESIDENTIAL-RECORDS-LAW/
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

RETAINING PRESIDENTIAL RECORDS UNDER THE LAW

During the president’s brief tenure in office, multiple concerns have been raised about the failure of the president and his staff to comply with the Presidential Records Act (“PRA”). Possible violations range from the use of private email systems to conduct White House business to the use of phone apps that prevent messages from being created and preserved in the first instance. This behavior appears to fit into a larger pattern of secrecy surrounding the White House and its activities.

The PRA was enacted to establish public ownership of presidential and vice presidential records, to impose record keeping requirements on the president and vice president, and to authorize the National Archives and Records Administration (“NARA”) to preserve and make publicly available presidential records. Toward that end, the PRA specifies that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]”[i] Stated differently, the records of a president belong to the people, not the president.

The PRA defines the term “Presidential record” broadly to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the president’s constitutional, statutory or ceremonial duties.[ii] The statute excludes from the definition of presidential records “personal records,” defined as those “of a purely private or nonpublic character” unrelated to the president’s constitutional, statutory, or ceremonial duties.[iii] In addition, the PRA directs the president to “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[.]”[iv]

Amendments to the PRA, added in 2014, address the growing use of personal email accounts to conduct official business. Those subject to the PRA – the president, vice president, and their staff – may not create or send a presidential record using “a non-official electronic message account” unless they also copy their official government account or forward a copy to their official government account within 20 days.[v] Those who intentionally violate this provision are subject to disciplinary action.[vi] With respect to other forms of social media and methods of electronic communications, NARA guidance makes clear such communications, including those sent from a Twitter account, must be managed as “records.”[vii]

The PRA also dictates when and how presidential records may be destroyed during a president’s term of office. The president may dispose of his or her non-personal records only after making a determination that the records “no longer have administrative, historical, or evidentiary value.”[viii] Upon such a determination, an incumbent president may destroy his or her non-personal records, but only after obtaining the written views of the archivist and only after the archivist states in writing that he does not intend to take action.[ix] Further, after the archivist has stated in writing that he does not intend to take action with respect to the destruction of specified presidential records, the president must then notify the appropriate congressional committee 60 days before the proposed disposal date of his or her intention to dispose of the records.[x] This multi-step process reflects the care Congress took to ensure presidential records could be destroyed only after considered deliberation by multiple entities.

As has been widely reported, the president has deleted records the PRA requires him to preserve. President Trump’s preferred method of public communication is Twitter, and he has both a personal and an official Twitter account. But the contents of the tweets from both accounts, which set forth the president’s musings on a wide variety of topics from the performance of the intelligence community to his views on a judicial decision enjoining his travel ban, clearly pertain to his official position. Nevertheless, a number of President Trump’s tweets have been deleted, sometimes because of typos,[xi] but sometimes in an apparent attempt to avoid criticism over apparent conflicts of interest, such as a tweet concerning his meeting with generals at his Mar-a-Lago residence.[xii] Underlining these concerns is the boast of President Trump’s former campaign manager Corey Lewandowski to lobbying clients of his access to the president’s Twitter account.[xiii]

Further, at least four other senior White House officials reportedly maintained, and may still use, active email accounts on the Republican National Committee (“RNC”) email system. Unfortunately, for at least three of the accounts it may not be possible to verify whether their use excluded government business as the RNC already has deleted emails from them.[xiv] But their use raises concerns about whether White House staff is complying with the PRA. The use of personal cell phones and non-governmental email accounts by White House officials to send texts or emails relating to government business would violate the PRA, unless those messages were transferred to an official EOP recordkeeping system.[xv]

In a January 30, 2017 letter to White House Counsel Donald F. McGahn, Ranking Member Claire McCaskill and Sen. Tom Carper of the Senate Homeland Security and Governmental Affairs Committee raised concerns regarding White House staff’s compliance with the PRA. They requested a variety of information that would shed light on the use by White House staff of non-governmental email accounts to conduct official business. To date, the White House has not responded to this request.

In February, White House Press Secretary Sean Spicer directed random phone checks of White House staff and warned them that using certain texting apps that encrypt and automatically delete texts after they are sent violates the PRA.[xvi] This action followed multiple reports that members of the Trump administration were using “Confide,” an app that encrypts and deletes messages after they have been read.[xvii] EOP-issued cell phones do not allow apps to be loaded on them, meaning any use of encryption apps necessarily involves personal cell phones, heightening the risk that presidential records sent or received on those phones have not been preserved. Of course, any app that deletes messages would not allow such preservation, raising another concern under the PRA.

The Trump administration’s apparent disregard for statutory recordkeeping responsibilities is depriving the American public of the historical records to which it is entitled. The ethical lapses and missteps the administration already has made underline the need to preserve a full record of its activities.

[i] 44 U.S.C. § 2202.

[ii] 44 U.S.C. § 2201(2).

[iii] Id., § 2201(3).

[iv] 44 U.S.C. § 2203.

[v] 44 U.S.C. § 2209.

[vi] Id.

[vii] NARA Bulletin 2015-02, Guidance on Managing Electronic Messages, July 29, 2015; National Archives and Records Administration, White Paper on Best Practices for the Capture of Social Media Records, May 2013.

[viii] 44 U.S.C. § 2203(c).

[ix] Id.

[x] Id., § 2203(d).

[xi] See, e.g., Meg Wagner, Trump’s Deleted Tweets Could Violate Presidential Records Act, New York Daily News, Jan. 1, 2017. available at http://www.nydailynews.com/news/politics//trump-deleted-tweets-violate-presidential-records-act-article-1.2952416; Eli Watkins and Laura Jarrett, The Presidential Records Act and @realdonaldtrump, CNN, Feb. 18, 2017, available at http://www.cnn.com/2017/02/18/politics/presidential-records-act-donald-trump-twitter/.

[xii] Ben Kentish, Donald Trump Deletes Tweet About Meeting Generals at his Mar-a-Largo Florida Resort, The Independent, Feb. 22, 2017, available at http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-delete-tweet-generals-meeting-mar-a-lago-florida-keith-kellogg-h-r-mcmaster-a7590886.html.

[xiii] Tarini Parti, Corey Lewandowski’s Potential Clients Say He’s Bragging About Access to Trump’s Twitter Account, BuzzFeed, Feb. 15, 2017, available at https://www.buzzfeed.com/tariniparti/corey-lewandowskis-potential-clients-say-hes-bragging-about?utm_term=.ijEvykebo#.th7kwVKD9.

[xiv] Letter from Sen. Claire McCaskill and Sen. Tom Carper to White House Counsel Donald F. McGahn, Jan. 30, 2017, available at https://www.carper.senate.gov/public/_cache/files/a88eb66b-4ba0-4bb7-8fd5-a7613fe9598f/2017-01-30-letter-from-mccaskill-carper-to-wh-counsel-mcgahn-press-.pdf.

[xv] Id.

[xvi] Annie Karni and Alex Isenstadt, Sean Spicer Targets Own Staff in Leak Crackdown, Politico, Feb. 26, 2017 (available at http://www.politico.com/story/2017/02/sean-spicer-targets-own-staff-in-leak-crackdown-235413).

[xvii] See, e.g., Lily Hay Newman, Encryption Apps Help White House Staffers Leak – and Maybe Break the Law, Wired, Feb. 15, 2017 (available at https://www.wired.com/2017/02/white-house-encryption-confide-app/); Andrew Restuccia and Nancy Cook, Trump Inspires Encryption Boom in Leaky D.C., Politico, Feb. 27, 2017 (available at http://www.politico.com/story/2017/02/trump-encryption-cybersecurity-leaks-235417).


THE PRA ACT ITSELF --

https://en.wikipedia.org/wiki/Presidential_Records_Act
Presidential Records Act
From Wikipedia, the free encyclopedia

The Presidential Records Act (PRA) of 1978, 44 U.S.C. §§ 2201–2207, is an Act of Congress of the United States governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential records. The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents must manage their records.
Specifically, the Presidential Records Act:
Defines and states public ownership of the records.

Places the responsibility for the custody and management of incumbent Presidential records with the President.
Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once he has obtained the views of the Archivist of the United States on the proposed disposal.

Requires that the President and his staff take all practical steps to file personal records separately from Presidential records.
Establishes a process for restriction and public access to these records. Specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years. The PRA also establishes procedures for Congress, courts, and subsequent administrations to obtain special access to records that remain closed to the public, following a 30‑day notice period to the former and current Presidents.

Requires that Vice-Presidential records are to be treated in the same way as Presidential records.
Executive Order 12667 - Issued by President Reagan in January 1989, this executive order established the procedures for NARA and former and incumbent Presidents to implement the PRA.

Executive Order 13233 - This executive order, issued by President George W. Bush on November 1, 2001, supersedes the previous executive order. The Bush executive order also includes the documents of former Vice Presidents.

Executive Order 13489 - Issued by President Barack Obama on January 21, 2009, restored the implementation of the PRA of 1978 as practiced under President Reagan's Executive Order 12667 and revoked President Bush's Executive Order 13233.



FOIA AND THE NSA

FOIA Basics

What is the FOIA?

Enacted in 1966, The Freedom of Information Act (FOIA) is a federal law that establishes the public's right to obtain information from federal government agencies. The FOIA is codified at 5 U.S.C. Section 552. "Any person" can file a FOIA request, including U.S. citizens, foreign nationals, organizations, associations, and universities. In 1974, after the Watergate scandal, the Act was amended to force greater agency compliance. It was also amended in 1996 to allow for greater access to electronic information.

Who can I send a FOIA request to?

The FOIA applies to Executive Branch departments, agencies, and offices; federal regulatory agencies; and federal corporations. Congress, the federal courts, and parts of the Executive Office of the President that function solely to advise and assist the President, are NOT subject to the FOIA. Records obtainable under the FOIA include all "agency records" - such as print documents, photographs, videos, maps, e-mail and electronic records - that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency's possession and control. Agencies are required by FOIA to maintain information about how to make a FOIA request, including a handbook, reference guide, indexes, and descriptions of information locator systems. The best place to get this information is on the agencies' websites. Doing research to determine the right office to send the FOIA request to within the right component of the right agency will make your FOIA efforts more productive.

What are the FOIA exemptions?

Exemption (b)(1) - National Security Information
Exemption (b)(2) - Internal Personnel Rules and Practices
- "High" (b)(2) - Substantial internal matters, disclosure would risk circumvention of a legal requirement
- "Low" (b)(2) - Internal matters that are essentially trivial in nature.
Exemption (b)(3) - Information exempt under other laws
Exemption (b)(4) - Confidential Business Information
Exemption (b)(5) - Inter or intra agency communication that is subject to deliberative process, litigation, and other privileges
Exemption (b)(6) - Personal Privacy
Exemption (b)(7) - Law Enforcement Records that implicate one of 6 enumerated concerns
Exemption (b)(8) - Financial Institutions
Exemption (b)(9) - Geological Information