DOJ Says No One Has Any Right To Question The Adminstration's Handling Of Records, Not Even The Courts

Legal Issues

from the inches-to-miles dept

Frequent FOIA requesters CREW (Citizens for Responsibility and Ethics in Washington) and NSA (National Security Archive) are trying to obtain a court ruling forcing the Trump administration to stop standing in the way of transparency and accountability.

Their complaint [PDF], filed earlier this year, accuses the Trump administration of not just serious impropriety, but of actually taking proactive steps to ensure there’s no documentation of its questionable deeds.

From early on in this Administration, White House staff have used and, on information and belief, continue to use certain email messaging applications that destroy the contents of messages as soon as they are read, without regard to whether the messages are presidential records. Presidential statements made on Twitter sent from the President’s personal Twitter account, which are subject to federal record-keeping obligations, have been destroyed. The President also has implied that he is secretly tape-recording some or all conversations with Administration officials, and it is unclear if these tapes are being preserved. And there is at least one news report that, when the ongoing congressional and FBI investigations were disclosed, White House aides purged their phones of potentially compromising information. These practices violate the Presidential Records Act.

On top of that, the lawsuit alleges the White House is going even darker by consolidating power and forcing federal agencies to route as much as possible through administration staff to ensure as many records as possible could be considered exempt from FOIA requests.

The DOJ has filed its motion to dismiss [PDF]. And it’s incredibly dismissive, as Eriq Gardner reports:

In a court filing Friday, not only do attorneys at the Justice Department say that courts can’t review this, but they also argue that when it comes to laws pertaining to government record-keeping, judicial review would be inappropriate even if Trump deleted secret recordings with administration officials or even if his staff purged phone records because they expected to be subpoenaed in connection with various investigations.

Over the course of 36 pages, the DOJ tells the court the plaintiffs are wrong, the court is wrong… pretty the only entity entirely in the right is the President and his staff, who efforts cannot be questioned under the Presidential Records Act.

Courts cannot review the President’s compliance with the Presidential Records Act (“PRA”). As the D.C. Circuit has squarely held, “permitting judicial review of the President’s compliance with the PRA would upset the intricate statutory scheme Congress carefully drafted to keep in equipoise important competing political and constitutional concerns.” Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) (“Armstrong I”). Indeed, “Congress . . . sought assiduously to minimize outside interference with the day-to-day operations of the President and his closest advisors and to ensure executive branch control over presidential records during the President’s term in office,” and so “it is difficult to conclude that Congress intended to allow courts, at the behest of private citizens, to rule on the adequacy of the President’s records management practices or overrule his records creation, management, and disposal decisions.”

The DOJ’s arguments are pretty blunt, considering they’re spread over 30 pages. The DOJ flatly states the plaintiffs have no standing as they can allege no harm but possibly-thwarted FOIA requests at some point in the future. Even if the court somehow finds a way to grant standing, the DOJ states this won’t help the plaintiffs’ case at all.

Even if Plaintiffs had standing, the vast majority of their claims are precluded by the PRA. As noted above, the D.C. Circuit held in Armstrong I that private litigants may not bring suit to challenge the President’s compliance with the PRA. While the D.C. Circuit subsequently held that courts hearing FOIA cases may review the President’s PRA guidelines to ensure that he does not improperly treat agency records subject to FOIA as though they were instead presidential records subject to the PRA, see Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (“Armstrong II”), D.C. Circuit law does not permit judicial review of whether the President is properly managing and preserving those records that are in fact subject to the PRA.

The DOJ likely has a point. Congress did give the President’s office lots of leeway on how to handle records retention. It’s the sort of thing that seems like a good idea when you’re the party in power but not so much when things change hands. For everyone else on the outside, it’s just another way the government insulates itself from accountability.

Filed Under: doj, presidential records, presidential records act, transparency