Violations of Presidential Records Preservation Requirements: Private Communications, Unsecured Messaging, and Systematic Failure to Archive Official Records
Tier 3Documented2017-01-20 to 2021-01-20
Factual Summary
Throughout the Trump administration, senior White House officials, including members of the president's family serving in official capacities, conducted government business using private communications channels in violation of the Presidential Records Act. The PRA, enacted in 1978 following the Watergate scandal, requires that all records created or received by the president and immediate staff in the course of official duties be preserved as public property. The pattern was documented through congressional investigations, official correspondence, and statements from the officials' own attorneys.
Jared Kushner, senior adviser to the president and Trump's son-in-law, used the WhatsApp messaging application to conduct official White House business, including communications with foreign leaders. Kushner's attorney, Abbe Lowell, confirmed to the House Oversight Committee in March 2019 that Kushner "has been using WhatsApp as part of his official duties in the White House." CNN reported that Kushner communicated with Saudi Crown Prince Mohammed bin Salman using WhatsApp. Lowell stated that Kushner preserved records by taking screenshots of his WhatsApp messages and forwarding them to his official White House email account, but the Oversight Committee noted that this practice did not meet the requirements of the PRA, which mandates that official communications be conducted through official channels, and that screenshot preservation was unreliable and unverifiable.
Ivanka Trump, who served as a senior White House adviser, used a personal email account to conduct official government business. The House Oversight Committee found that Ivanka Trump did not preserve all of her official emails as required by federal law and that she continued to receive official emails on her personal account without forwarding them to her official White House account within the 20-day window required by the Presidential Records Act.
The Oversight Committee's investigation also revealed that other senior officials used personal accounts for government business. K.T. McFarland, the former Deputy National Security Advisor, and Steve Bannon, the former White House Chief Strategist, conducted official business on personal email accounts, including communications relating to the transfer of sensitive U.S. nuclear technology to Saudi Arabia.
The use of private communications was particularly significant in the context of Trump's 2016 campaign, in which he repeatedly attacked Hillary Clinton for her use of a private email server as Secretary of State, leading crowds in chants of "Lock her up." The parallel between the conduct Trump condemned in Clinton and the conduct of his own senior staff was noted widely.
Beyond private messaging, the Trump White House was reported to have a broader pattern of inadequate records preservation. Reports indicated that Trump himself used an unsecured personal cellphone for calls and that he had a practice of tearing up official documents, requiring White House records staff to tape them back together for preservation. The National Archives and Records Administration later confirmed that it had received presidential records that had been torn up.
Citizens for Responsibility and Ethics in Washington (CREW) documented that the White House reversed its initial records policy regarding WhatsApp. The White House initially took the position that officials' WhatsApp messages did not need to be preserved, then reversed course after congressional scrutiny and confirmed that such messages were being saved.
Primary Sources
1. House Oversight Committee report and correspondence regarding Kushner and Ivanka Trump communications, March 2019
2. Abbe Lowell letter to the House Oversight Committee confirming Kushner's use of WhatsApp for official business
3. National Archives and Records Administration confirmation of receipt of torn presidential records
4. CREW documentation of White House reversal on WhatsApp records preservation policy
Corroborating Sources
1. PBS NewsHour: "Cummings: Jared Kushner and Ivanka Trump's private emails, texts raise security concerns," March 2019
2. Rolling Stone: "Jared Kushner, Ivanka Trump Used Private Messaging, Letter Reveals," March 2019
3. NPR: "Kushner Used Private Email For Official Business, House Panel Says," March 21, 2019
4. CBS News: "Jared Kushner, Ivanka Trump used private email accounts for official government business, Democrats say," March 2019
5. Fortune: "House Oversight Committee Investigating Jared Kushner's Use of WhatsApp for Foreign Communications," March 2019
Counterarguments and Context
Kushner's attorney stated that Kushner took steps to preserve records by screenshotting WhatsApp messages and forwarding them to his official account, and that he did not transmit classified information through WhatsApp. Defenders argued that the use of personal devices by government officials is common across administrations and that the important question is whether records were ultimately preserved rather than the initial channel of communication. They noted that Clinton's use of a private server involved classified information, which they argued was a more serious violation than the use of personal messaging apps. The White House maintained that it complied with records preservation requirements and pointed to its reversal on WhatsApp policy as evidence of good-faith compliance. Critics responded that the PRA requires official business to be conducted on official systems, that screenshot preservation is an inadequate substitute for proper archiving, that the use of WhatsApp with foreign leaders including the Saudi Crown Prince raised serious security concerns beyond records preservation, and that the hypocrisy of attacking Clinton for private email use while engaging in similar or analogous conduct was politically significant even if legally distinct. The House Oversight Committee concluded that the practices represented "significant violations of federal records laws."
Author's Note
This entry is classified as Tier 3 because the violations are documented through primary evidence, including the attorney's own confirmation of WhatsApp use, congressional investigation findings, and National Archives records. This entry is distinct from CRIM-005, which addresses the criminal case regarding classified documents removed from the White House after Trump left office. The focus here is on the systematic failure to preserve records during the administration, involving multiple senior officials and multiple communication channels, rather than the post-presidency retention of classified materials.