News broke yesterday that Jared Kushner, President Donald Trump’s son-in-law and senior policy advisor, has been using the private messaging application WhatsApp for official communications with foreign leaders. This is not the first such report; previous revelations had him using WhatsApp to communicate with Saudi Crown Prince Mohammed bin Salman. But this is the first confirmation that Kushner widely uses the application for official communications. His wife, Ivanka Trump, has also been revealed to use a private email account to conduct official business, as have multiple other senior White House officials. House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) has launched an investigation into these allegations, and numerous commentators have claimed that these actions violate the Presidential Records Act (PRA).
Here’s the problem, though. “Violate” is a difficult word to apply to the PRA. If some activity is prohibited by statute, but nobody can enforce compliance with the statute, can doing that activity really be called a “violation” of the statute? It may sound like an academic distinction, but this often happens when the Presidency is involved. A law professor may say, yes, of course there is a violation, but for all practical purposes, does that make a difference? If noncompliance with a law cannot be penalized, what good is the law? This is the case we face here, and it is a problem that Congress needs to fix if the PRA is going to work the way it is supposed to.
The reason is simple: The PRA regime is at its core an honor system. The law 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 the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presidential records pursuant to the requirements of this section and other provisions of law.
But the President has virtually unlimited discretion to decide what “steps … may be necessary,” and he has a roughly equal amount of discretion to “dispose of those Presidential records of such President that no longer have administrative, historical, informational, or evidentiary value.” In fact, the only thing he ostensibly has to do before destroying records is ask the advice of the official Archivist, the director of the National Archives and Records Administration (NARA, known simply as the National Archives), and the president is free to ignore that guidance.
The Archivist has a very limited ability to do anything to ensure the retention of presidential records during a President’s tenure. According to the law, in a disagreement with the President’s decision to destroy records, the Archivist has the authority to:
…request the advice of the Committee on Rules and Administration and the Committee on Governmental Affairs of the Senate and the Committee on House Oversight and the Committee on Government Operations of the House of Representatives with respect to any proposed disposal of Presidential records whenever the Archivist considers that–(1) these particular records may be of special interest to the Congress; or (2) consultation with the Congress regarding the disposal of these particular records is in the public interest.
Lack of Oversight Authority
That’s it. The Archivist can ask the advice of two Congressional committees. He can’t do anything with that advice, nor can Congress, short of passing a new law prohibiting the records destruction or exercising soft power to the same effect.
So what happens if a President ignores the advice of the Archivist? Nothing. What happens if the Archivist asks the advice of these Congressional committees, and they support him? Nothing. As Archivist David Ferriero himself noted:
Under the PRA, NARA does not have direct oversight authority over the White House records program, as it does over federal agencies under the FRA [Federal Records Act]. Because the Archivist reports to the President, NARA provides advice and assistance to the White House on records management practices upon request.
For that matter, what happens if the President just refuses to even ask the Archivist? Nothing. As a senior National Archives official once told me, “We can’t sue the White House.”
And the PRA contains no private right of action. The D.C. Circuit held in Armstrong v. Bush that the White House is not an agency, so the Administrative Procedure Act does not apply, and that the PRA itself precluded judicial review.
Ephemeral Messaging Apps
Just last week, the D.C. Circuit heard oral arguments in a case over the White House’s use of ephemeral messaging applications such as WhatsApp that allow users to let messages be destroyed within certain time periods. In that case, the appellants – the two nonprofit transparency advocacy organizations Citizens for Responsibility and Ethics in Washington and National Security Archive – attempted to argue that Armstrong was not as final as the government made it out to be, and that there were certain areas where the President’s discretion could be constrained. Time will tell how that argument works out.
But how did we get here? This wasn’t a simple oversight in the law. As the Circuit noted in Armstrong, Congress intentionally ceded territory to the executive branch as a political compromise. However, in light of current events, the stated rationale given by the court appears hopelessly naïve: “In declining to give outsiders the right to interfere with White House recordkeeping practices, Congress presumably relied on the fact that subsequent Presidents would honor their statutory obligations to keep a complete record of their administrations.”
In fact, over the last decade, Congress has attempted to fix this problem no less than eight times. In 2008, Congressman Henry Waxman (D-Calif.) first introduced H.R. 5811, the Electronic Message Preservation Act. This bill would, among other things, authorize the Archivist to promulgate regulations “establishing standards necessary for the economical and efficient management of Presidential records during the President’s term of office.” In other words, the Archivist could make rules that the White House would have to follow.
Chairman Cummings reintroduced this bill as H.R. 1582 on March 7 of this year, and it easily passed the House five days later.
So what’s different now? The simple answer is: Trump. As I’ve noted before, one thing everyone can agree on is that this President is a master at exposing the cracks in our political and legal landscape, whether he intends to or not. This is just one more example of that phenomenon.
Congress never could bring itself to impose restrictions on the President’s discretion to manage his own records, because Congress always assumed that a President would voluntarily comply with the law. Now it is faced with a President who will, on a good day, only comply with a law that contains express provisions that are undeniably enforceable.
The PRA is not such a law, but it should be. And if Congress is ever going to be sufficiently motivated to fix it, surely this will be the time.