Can a federal court decide whether the White House is breaking presidential record-keeping laws, such as by using encrypted apps that automatically erase messages once they’re read or issuing executive orders to avoid creating a paper trail accessible to the public?
Government attorneys told a federal judge Wednesday in Washington that the answer is a sweeping “no,” in a case that could help determine whether open-government laws are keeping pace with frontiers in communications technology.
Seeking to dismiss a lawsuit from watchdog groups against the Trump administration, Justice Department attorney Steven A. Myers cited the Presidential Records Act of 1978. The law was passed in the wake of Richard M. Nixon’s Watergate scandal in part to preserve vital evidence for criminal investigations.
In two appeals court decisions from 1993 — the last time similar questions were tested — judges had no trouble ruling that the records law encompassed the exploding use of email.
But judges found that permitting private parties to sue under the law would upset “Congress’s carefully crafted balance” that allows presidents to control the “creation, management, and disposal” of their records while in office, Myers said. “Courts cannot review the president’s compliance with the Presidential Records Act,” he said.
On Wednesday, U.S. District Judge Christopher R. “Casey” Cooper, a 2014 Obama appointee, promised a ruling “in due course” on whether to go forward on a deeper inquiry into the Trump White House’s compliance with record-keeping obligations.
Cooper seemed hesitant to give up the courts’ authority to at least look into such matters. He posed hypotheticals, including the implications if, for example, an official White House memo were unearthed explicitly directing aides to use message-deleting apps or strategies to avoid creating records subject to public disclosure.
But Cooper also asked whether it was up to Congress to revisit the law, saying at one point, “Isn’t records management and destruction completely discretionary under the statute?”
George M. Clarke III, an attorney for one of the watchdog groups urging Cooper to let the suit go forward, said allowing technologies or methods that eliminate record trails would “destroy the history of this presidency.” He told the judge that former Trump White House strategist Stephen K. Bannon “said his goal is to prevent a paper trail.”
Anne L. Weismann, attorney for Citizens for Responsibility and Ethics in Washington, agreed: “If this court were to find no judicial review here, then I think the president and White House would be granted license to ignore all Presidential Records Act obligations.”
CREW and Clarke’s group, the nonprofit National Security Archive, which collects declassified U.S. documents, sued in June, alleging the White House has failed to stop practices that undermine record-keeping required by law.
The suit does not challenge the White House’s discretion to manage or preserve records. The groups are arguing that the message-erasing apps prevent records from being created in the first place, foreclosing any archiving decisions on what are official documents vs. personal ones.
The groups invoked Nixon’s claim upon resigning in disgrace that he would take “his” presidential papers with him, prompting the creation of the law, and argued that government lawyers are now claiming “absolute, unchecked power to ignore the [law] at will.”
Clarke’s group noted that the scope of the law has been defined by litigation, such as when it sued at the end of the Reagan administration to preserve email backup tapes that provided evidence in the Iran-contra scandal — that produced the appeals court rulings in the 1990s — or when it and CREW in 2009 won the restoration of 22 million emails from George W. Bush’s presidency. More recently, conservative watchdog groups pursued Hillary Clinton’s use of a personal email system as President Obama’s secretary of state, dogging her 2016 Democratic presidential bid.
Several news organizations, including The Washington Post, reported early last year that some Trump aides used apps such as Signal and Confide to communicate with one another about presidential business.
Such apps create concerns like those relating to the president’s deletion of tweets about official business, which the National Archives said must be captured and preserved.
Myers said the White House issued guidance in February to save work-related messages sent or received via social media. The guidance, he said in court, in effect, banned use of apps like Confide and Signal that do not allow messages to be preserved through screen images or forwarded to an official account. “The upshot” of the guidance, Myers said, “would be that you can’t use these apps.”
Clarke and Weismann argued that the guidance was ineffective and unenforceable and that a federal appeals court has found courts can review White House record-keeping guidelines even if decisions about specific records are not reviewable.