President Donald Trump has harnessed the power of social media, particularly via Twitter using his @realDonaldTrump account, in a way not contemplated by traditional political and policy strategies. For the first time in history, a president not only has the means to communicate to the public directly, unfiltered, and in real time, but also has a clear preference in doing so. Much has been written about Trump’s proclivity for tweeting, including his ability to drive a news cycle in 140 characters, his tone and manner, the phone he tweets from, and even what time he starts tweeting in the morning.

Lost in these observations are some important, albeit seemingly mundane, legal considerations. For example, at 11:57 am on January 21, 2017, the day after his Inauguration, President Trump tweeted, “I am honered [sic] to serve you, the great American People, as your 45th President of the United States!”.

Trump_tweet

Shortly thereafter, and presumably because of the spelling error, that tweet was deleted and a new message was re-posted without the error onto the @POTUS account.

When the deleted tweet was first reported, I, like many others, thought it was of no moment. In my mind, it was nothing more than the correction of a minor spelling mistake, a simple human error, and something President Trump had done occasionally in the past while a candidate and during the presidential transition period. As some reporters have pointed out, however, President Trump may have violated the Presidential Records Act of 1978, 44 U.S.C. 22 §§ 2201-2209 (“PRA”) when he deleted that tweet. According to Politwoops, a project of Propublica that archives the deleted tweets of public officials, the President has deleted six tweets since being sworn-in. Arguably, each deletion is a violation of the PRA. The tweets of Donald Trump belong to him, but the tweets of President Donald Trump belong to us, the American people, and the PRA requires that he preserve them, spelling mistakes and all.

At Cause of Action Institute, we work to expose instances of when and where the government fails to comply with the laws to which it is bound and fight to ensure that the government adheres to that which is required of it. Over the coming days and weeks, we will be addressing various legal implications of the use of social media platforms by President Trump, Vice President Pence, and their respective staffs, including:

  • A discussion on how the tweets and other social media communications of President Trump, Vice President Pence, and their staff are subject to the PRA.
  • The legal status of “official” versus “unofficial” or “personal” accounts of President Trump, Vice President Pence, and their staff.
  • Best practices and considerations for social media use by the White House.
  • Considerations regarding the separation of public social media resources and campaign social media resources.
  • And other legal issues as they arise.

Any questions, commentary, or criticisms? Please e-mail me at kara.mckenna@causeofaction.org.

Kara McKenna is a Senior Law Clerk at Cause of Action Institute. 

Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before federal courts and agencies.