A secret Obama-era executive action may have authorized former President Donald Trump to keep presidential records at Mar-a-Lago. My organization, America First Legal, filed a Freedom of Information Act request last week to find out.
In October 2014, Russian hackers breached the Executive Office of the President’s (EOP) network. Months later, President Barack Obama created, via executive action, the Presidential Information Technology Committee (PITC), purportedly to protect EOP information by moving systems onto Department of Defense (DOD) servers.
The PITC executive order and documents obtained from litigation reveal how President Obama asserted an aggressive position on presidential control over information. Under PITC, if the president accessed data, it was presumptively his. America First Legal has argued this aggressive position is constitutional.
Given no public evidence that the PITC order was rescinded, Obama’s position has legal consequences for former President Trump and his various indictments concerning records originating from the government. First, PITC creates a presumption that the president controls virtually all of the data he receives. The PITC memo established the president’s “exclusive control” over information resources and systems provided to him. The memo created the presumption that information contained on information systems and resources was “EOP information.” Because the memo relied upon the Federal Records Act’s definition of “information system” as resources organized for the “use” and “disposition” of “information,” the memo purports to give the president exclusive control over the information he receives.
That’s why America First Legal is investigating PITC — to determine whether DOD actually retains copies of data accessed by the president.
Presidential vs. Federal Records
What Obama established has big implications for the use of the federal witness tampering statute against Trump. The witness tampering statute’s language places liability on whoever “corruptly” “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.” But if PITC still existed for President Trump, then all of the records Trump received were presidential records and not federal records, and thus arguably the witness tampering statutes do not apply to records in Trump’s possession.
How Obama transformed records control gets even more surprising. Evidence produced in litigation against the Obama administration reveals how in the lead-up to Obama creating PITC, his White House, in creating another before-now secret agreement, relied on the DOD to host White House data, yet deemed this information, despite being in a federal agency’s possession, presidential records. According to a declaration from a DOD official, “[I]n late 2010, the Army Materiel Command (AMC) entered into an agreement with the Executive Office of the President (EOP) to provide certain information and technology support to EOP.”
Under the agreement, the White House directed that “AMC must ‘refrain from deleting or modifying any EOP data without express, written direction from EOP.” The government stated, “At no time was EOP data integrated into any other Army records or files, as the data remained partitioned off exclusively for EOP use.” The 2010 Obama White House agreement specifically applies the Presidential Records Act to all EOP data on DOD servers.
A Second Legal Consequence
These new facts have a second major legal consequence. Under a Supreme Court doctrine known as Brady, these secrets about how the Obama White House — and purportedly Trump’s White House — stored and accessed its data, to the extent relevant to the facts underlying Trump’s various indictments, must be disclosed to Trump. If records at Mar-a-Lago originated from the PITC system, then Trump not only was authorized to have them but lacked the intent required to allegedly commit criminal removal of those records.
The bottom line is that the Department of Justice had a legal obligation to determine which, if any, records subject to its investigation originated from the PITC system and then disclose those facts to the Trump defense team. That clearly did not happen.
Other Questions
This saga of a White House that relies on the DOD to preserve its data raises a host of further questions about government transparency. What did the National Archives have to say about PITC and Obama’s 2010 agreement with the Army? Why was the Archives so quick to make referrals to the Justice Department about Trump’s records yet never questioned Obama controlling record systems hosted by a government agency — the DOD? Why did Congress allow Obama to do this for virtually the entirety of his administration but it now blames Trump for his alleged schemes concerning federal records?
America First Legal is hopeful that uncovering Obama’s secret records policies may help improve how the government works. And it just might reveal major problems in the government’s position concerning how Trump treated the records in his possession.
Daniel Epstein is an assistant professor of law at St. Thomas University in Miami, Florida, and an attorney for America First Legal Foundation.
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