I could not have imagined this time last year that Twitter would be the primary way that the President would communicate with the American people, but here we are. And he’s not the only one — we’ve seen Twitter wars resulting in lawsuits, and some folks are even now suing the President for blocking them on Twitter.
As I watch story after story play out through the tweets of @realDonaldTrump, it occurred to me that IF there was ever a time when lawyers compiled and sought to present evidence against the administration or some member of it, there may be one less hurdle to climb.
Are the tweets of @realDonaldTrump self-authenticating?
One of the biggest issues in introducing social media evidence is overcoming authentication and how to preserve, produce and introduce social media evidence at trial. And while it seems unlikely that there may be an authenticity problem given the President’s propensity to re-emphasize what he said and meant about each tweet he sends, let’s play it out anyway.
The court in Tienda v. State, 358 S.W. 3d 633 (Tex. Crim. App. 2012), outlined the most critical issue with authentication — whether there is sufficient evidence to demonstrate that the person the post (or tweet in this case) is being attributed to actually posted the material:
Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence.
And there are a number of different ways to authenticate social media and other electronic evidence consistent with Federal Rule of Evidence 901:
In some cases, the purported sender actually admitted to authorship . . . or was seen composing it. In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone. Sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication. . .
Let’s take that list and compare it to see if we could authenticate some of the more popular tweets coming from the account of @realDonaldTrump. Remember that the President does have an official Twitter account @POTUS, but the tweets that are likely to be evidence come from his personal Twitter account @realDonaldTrump.
Has the President admitted to authoring tweets? Check. (My favorite was when he said IT’S A TRAVEL BAN, contrary to what his lawyers were arguing in court.)
Has he been seen composing tweets at night in his bathrobe? Check. #covfefe
Have his tweets contained information only he would know? Like, I don’t know, a meeting with a foreign President? Check.
Does the language used in the tweets indicate circumstantially that he was the author of the communications? Check. #Sad #bigly
Even the President’s social media director, Dan Scavino, bolsters the authentication case. Scavino, who is responsible for sending out tweets during business hours, told Fox News this about the President’s Twitter account:
It is him speaking, his mind as President of the United States of America.
He’ll start speaking a tweet, which I know is a tweet, and then we’ll send it out.
In the video, Scavino goes even further to say that he is only responsible for tweets during the day, and at night he learns about them being posted by the President via notification. (Things that make you go hmmm . . .)
And @realDonaldTrump is a verified Twitter account. See the little blue checkmark next to the account name in the bio profile shot above? That blue checkmark, according to Twitter, lets people know that a “that an account of public interest is authentic.” So unlike in Tienda, where the issue was whether some one else created a fake account to post the material, here we have it verified that it belongs to the President.
So, authentication under Rule 901 likely isn’t a problem.
But there might be an even easier way: FRE 902 deals with (and is also conveniently titled) “Evidence that is Self-Authenticating.” If evidence falls within the rule, these items of evidence require “no extrinsic evidence of authenticity in order to be admitted.” There are several sections of FRE 902 that may be applicable to the Trump tweets, including Domestic Public Documents, or Official Publications. The biggest question in applying any of these sections is whether by using his personal account for the most potentially harmful of his tweets, has he created an “official” publication out of his personal account?
There is no seal or signature on his personal account, but Sean Spicer has told us that the President considers his tweets to be “official” statements of the presidency:
Reporter: Are President Trump’s tweets considered official White House statements?
Spicer: The President is the President of the United States, so they are considered official statements by the President of the United States.
I’m not sure the Federal Rules Committee ever considered whether a statement by the White House Press Secretary could create an official statement under FRE 902, so if it comes to it, it will be entertaining to say the least. And that is what 60 million people voted for.
I’ll leave a more in depth analysis of how the authentication of tweets from @realDonaldTrump plays out in court with Robert Mueller and the folks trying to get reattached to the account. Time for another cup of #covfefe.
HT to @scottmalouf for his assistance with this article.
Kelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at [email protected] or on Twitter: @kellytwigger.
