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

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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Personanongrata, 11 Oct 2017 @ 12:51pm

    A Government of the Criminal for the Criminal by the Criminal

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

    How long can DoJ (HaHa) and US government run without tax revenue to fund their day to day operations?

    National strike - let the statist petty authoritarian tax feeding turds fund their tyranny with the proceeds of a bake sale.

    reply to this | link to this | view in chronology ]

    • icon
      Shane (profile), 11 Oct 2017 @ 1:11pm

      Re: A Government of the Criminal for the Criminal by the Criminal

      You're on the wrong website. These guys are statists to the core.

      Build the wall. End the Fed.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Oct 2017 @ 1:21pm

        Re: Re: A Government of the Criminal for the Criminal by the Criminal

        Wait, if we end the Fed, where do you expect them to get the money for the wall?

        reply to this | link to this | view in chronology ]

        • icon
          btr1701 (profile), 11 Oct 2017 @ 2:17pm

          Re: Re: Re: A Government of the Criminal for the Criminal by the Criminal

          > Wait, if we end the Fed, where do you expect them to get
          > the money for the wall?

          This country managed to function just fine for many years before the Federal Reserve was created.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Oct 2017 @ 12:51pm

    Why Repukes SHOULD be in charge

    "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."

    I wonder if they did the same against the Bamy admin. Looks like the new master is the same as the old master in the transparency department.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Oct 2017 @ 1:01pm

      Re: Why Repukes SHOULD be in charge

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Oct 2017 @ 1:26pm

        Re: Re: Why Repukes SHOULD be in charge

        And those historic Obama visitor records were just a bunch of names. Who the hell is John Smith? Why was he at the White House? Maybe just a tourist. Obama would never tell as I recall. A snow job is equal to Trump’s nothing log. Don’t kid yourself.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Oct 2017 @ 1:38pm

        Re: Re: Why Repukes SHOULD be in charge

        Okay, thanks for the link, I did say "I wonder if they did the same against the Bamy admin." I did flub the ? mark though.

        now....

        "the Obama administration and Citizens for Responsibility and Ethics in Washington (CREW) settled four ongoing cases regarding public access to White House visitor records."

        they still had to sue, which means Bamy admin is NOT off the hook for this claim... "Looks like the new master is the same as the old master in the transparency department."

        If Obama was serious about transparency then it never would have been filed in court in the first place. Otherwise its like saying that Health Insurance agencies care about their patients "after" they lost the court case or settled on paying their med bills.

        It is intellectually dishonest to say this...

        "The most significant development, however, is the commitment by the Obama administration to affirmatively post visitor records online on an ongoing basis, bringing a historic level of transparency to the White House."

        AFTER having gone to court over it!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Oct 2017 @ 1:53pm

          Re: Re: Re: Why Repukes SHOULD be in charge

          You're arguing against nothing.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Oct 2017 @ 2:08pm

            Re: Re: Re: Re: Why Repukes SHOULD be in charge

            I asked a question and got it answered. It is my prerogative to be suspect of things whether you agree/like or disagree/hate it.

            Do I have you permission to focus on the things I care about or do I need to focus on only the things YOU care about?

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Oct 2017 @ 4:19pm

    Not even God!!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Oct 2017 @ 5:32pm

    Acuse your oponents of what you intend to do..

    Don't worry they are coming for your guns and the camps for the undesirables are being set up by fema

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 12 Oct 2017 @ 11:27am

    Good luck

    CREW (Citizens for Responsibility and Ethics in Washington)

    They're looking for the two things virtual all politicians and bureaucrats lack. Particularly in that city.

    reply to this | link to this | view in chronology ]

  • identicon
    derfel cadarn, 15 Oct 2017 @ 5:25pm

    DOJ

    As long as I'm footing part of the tab for the BS that is government, I will question anything I like !

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.