Would the Use of Burner Phones by Trump Violate the Presidential Records Act?

The House Select Committee is reportedly investigating a gap of seven hours and 37 minutes (11:17 a.m. to 6:54 p.m) in telephone calls on January 6th for President Donald Trump. That reported gap led to questions of whether Trump used “burner phones” to evade any record of calls. It is still too early to determine the cause or responsibility for this alleged gap. However, Trump magnified concerns when he claimed to have never even heard the term “burner phone,” let alone knew what it means. The far more serious question, however, is whether Trump or his aides or allies actively sought to conceal communications during that critical period. There have been claims that the use of such phones would violate the Presidential Records Act. I do not believe that it would be a technical violation of the PRA.

President Trump Trump told the Washington Post “I have no idea what a burner phone is, to the best of my knowledge I have never even heard the term.” That left many skeptical given the ubiquitous use of this term in society.

Moreover, John Bolton, Trump’s former national security adviser (and now critic) directly contradicted Trump and said that he personally discussed burner phones with the President.

I recently testified in the United States Senate on the danger posed by new forms of communication, including messaging systems designed to delete records of messages. Electronic records are part of the coverage of the Presidential Records Act.

The telephone logs are covered by the PRA as a record to be turned over to the National Archives. However, there is no accusation of destroying the telephone log itself. George H.W. Bush’s administration was accused of destroying telephone logs and records. The question is whether the use of burner phones violates the PRA. I am skeptical that it does. A president could use anyone’s phone during his travels or interactions. That does not violate the PRA.

Jason Baron, the former director of litigation at the National Archives, testified with me before the Senate committee. He is exceptionally knowledgable on the PRA and has an incredible legacy in fighting for the preservation of such records. He notably told the New York Times that the use of such phones might “violate the spirit” of the PRA. That is certainly true if a president employed burner phones to avoid the logging of calls. However, it would not, in my view, be a clear violation of specific provisions under the Act.

That does not mean that Congress does not have a legitimate interest in finding out if burner phones were used and, more importantly, finding out the timeline and subjects of calls made on that critical day.