Abusing the Record-Keeping System

How the Trump White House is Abusing the Record-Keeping System

By SAMANTHA VINOGRAD

Heavy public attention—as well as congressional scrutiny—is focused on President Donald Trump’s engagements with foreign leaders. It’s now public that, after 2½ years of having controversial conversations with his counterparts, Trump asked Ukrainian President Volodymyr Zelensky to investigate one of his political rivals: former Vice President Joe Biden. The now-declassified call readout and the complaint filed by a whistleblower who had concerns about the call have unlocked a Pandora’s box of potential abuses of power, including extraordinary steps by the president’s team to restrict access to readouts of his conversations or not to document them at all.

According to new reporting, Trump’s team—we don’t know whether it was at his direction or not—misused and abused the process for documenting and distributing readouts of several of his conversations, including his July 25 call with Zelensky and other calls with Saudi Crown Prince Mohammed bin Salman and Russian President Vladimir Putin. This is on top of earlier reports that Trump concealed the contents of meetings with Putin, including in 2017 when he reportedly took an interpreter’s notes and instructed the interpreter not to share a readout with other administration officials. That same reporting indicated there is no detailed record of five of Trump’s encounters with Putin over the past two years.

Presidents don’t get to pick and choose whether they accurately document their conversations for the record. The Presidential Records Act requires that they do so. Tampering with readouts or failing to file them at all breaks that law.

The process of reading out and documenting presidential conversations isn’t just a matter of upholding the Presidential Records Act, though. It’s critical to ensuring that relevant officials on the U.S. national security team have the information they need to effectively perform their responsibilities. When presidents don’t keep their team in the loop, national security suffers.

Here’s how it’s supposed to work: During presidential calls and video conferences, staff from the White House Situation Room take notes in real time. Those note-takers compare their notes with those taken by other officials authorized to listen to the call— often a director or senior director from the National Security Council who has responsibility for the country the president is speaking with—and together they work to compile an official readout. These memorandums, which should be drafted and reviewed soon after the call while its contents are fresh in everyone’s minds, are intended to be as close to verbatim as possible. That’s why there is more than one note-taker assigned to the call—so that note-takers can compare notes for accuracy.

The draft readout should then be sent to the national security adviser’s office for review. The national security adiviser historically has been either physically present or on the line for presidential calls so he or she may also have some edits to the draft readout. If former national security adviser John Bolton was not included in Trump’s calls, that would be a major break with past practice. According to the whistleblower complaint, several White House staff were on the president’s call with Zelensky, but we don’t yet know if Bolton was one of them.

Once the national security adviser approves the final readout for the record—often called a “MEMCON” or memorandum of conversation—he or she also approves a distribution list. This step is important: It ensures U.S. officials have the information they need to perform their responsibilities, while also making sure those without a need to know what happened don’t.

The distribution list should typically include certain key officials, including the director of national intelligence, CIA director and secretary of State. The list should also include other officials named on the call or who have follow ups from it. For example, Trump and Zelensky discussed military sales on their July 25 call, which means Secretary of Defense Mark Esper should have seen the readout so he could follow up with the Ukrainians regarding those sales.

Attorney General William Barr was specifically named to follow up during Trump’s call with Zelensky. Trump told the Ukrainian president that Barr and Trump’s personal lawyer Rudy Giuliani would call Zelensky. Yet the Department of Justice claims Barr didn’t hear about the call’s contents until weeks after, and that when he did get a readout he was surprised and angry that Trump grouped him with Giuliani. The reported failure to get Barr a readout is a major process foul. For one, he was named as a point of contact for Zelensky’s team. But also, White House officials should have had legal concerns after Trump asked Zelensky to do him a “favor” by looking into Biden. The national security adviser should have flagged these legal concerns to Barr, even if Barr hadn’t been assigned to call Zelensky.

According to the whistleblower complaint, while Barr did not get a readout, multiple White House officials had direct knowledge of the call and were deeply disturbed by it. Hearing about the call, White House lawyers—probably concerned with the president’s potential abuse of power—worked to “lock down” the official written readout of the call so that fewer people could see it.

How did White House officials work to “lock down” the call? They reportedly moved the readout to the “codeword” system—a system with highly restricted access only available to people with very specific and top level access to intelligence. The codeword system is supposed to be used only for readouts, memos and communications that are classified at a codeword level. It is separate from the “top secret” level system in which readouts are usually drafted and distributed, informally called the “high side” by White House staff.

The MEMCON of the Zelensky call, which didn’t deal with sensitive intelligence information, was classified as “secret,” according to the header at the top of the now declassified document. That level is well below codeword. And yet the readout was inappropriately sent to the codeword system. The White House is claiming its actions were motivated by a desire to limit leaks, but it’s also possible it wanted to hide information that could be damaging to the president.

The Trump White House has also reportedly abused the process for documenting in-person meetings with foreign leaders. In Trump’s infamous 2017 Oval Office meeting with Russian Foreign Minister Sergey Lavrov—in which he shared sensitive intelligence about an ongoing intelligence operation—someone should have been assigned to take notes and send a draft readout to the national security adviser—H.R. McMaster in this case—for review and distribution.

Then, the national security adviser should have approved and distributed a MEMCON to relevant officials, and the MEMCON should have been filed for the presidential record. This time, because Trump reportedly shared codeword-level intelligence with the Russians, the MEMCON should likely have been written and distributed on the codeword-level system. Recent reporting indicates that Trump also said during that meeting he “was unconcerned” about Russian election interference. Comments like that make distributing a MEMCON to appropriate personnel particularly important.

But, a readout of the meeting—we don’t know if it was a formal written readout or a verbal one—was reportedly limited to an "unusually" small group of people, which could indicate a failure to get the readout to those who needed it to do their jobs. The departments of Justice, Homeland Security and State and members of the intelligence community needed to know that the president had undercut their efforts to secure our elections so that they could regroup and figure out next steps, not to mention to try to convince him of how dangerous his comments were from a national security standpoint. Furthermore, if anyone failed to brief relevant officials on what transpired, that would mean that our own team didn’t know something that the Russians did. The Russians could use that to manipulate or bribe the president.

While much attention is being paid to written readouts of presidential calls and meetings, they are not the only way readouts are delivered. Because these formal readouts take time to finalize, the national security adviser or an authorized member of his or her team often gives verbal readouts to key officials. This way there isn’t a lag in passing on information about the president’s conversations that require immediate follow up and key officials are as up to speed as their foreign counterparts. Some State Department officials reportedly got a verbal readout of the president’s July 25 call with Zelensky. According to the whistleblower, State officials met with the Ukrainians the day after the call to “navigate the President’s demands,” eventually connecting Giuliani with the Ukrainians.

By restricting access to call readouts, not writing them at all, and apparently not even giving relevant Cabinet officials verbal readouts when they were discussed on a presidential call, the president’s team made some major process fouls. But, if this looks like a comedy of errors, it is likely a well-orchestrated one. Only senior White House officials—like the national security adviser, chief of staff or the president himself—have the authority to disturb the process in these damaging ways.