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Citizens For Responsibility v. Trump

United States Court of Appeals, District of Columbia Circuit

May 28, 2019

Citizens for Responsibility and Ethics in Washington and National Security Archive, Appellants
v.
Donald J. Trump, The Honorable, President of the United States of America and Executive Office of the President of the United States, Appellees

          Argued March 15, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01228)

          George M. Clarke III argued the cause for appellants. With him on the briefs was Anne L. Weismann.

          Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Abby C. Wright, Attorney.

          Before: Tatel and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          TATEL, CIRCUIT JUDGE

         Shortly after President Trump took office, the press reported that White House personnel were communicating over messaging apps that, unlike standard text messaging platforms that preserve conversations, automatically delete messages once read. Alleging that the use of such apps violates the Presidential Records Act (PRA), which requires the preservation of official presidential records, Citizens for Responsibility and Ethics in Washington and the National Security Archive (collectively, "CREW") sued, seeking a writ of mandamus prohibiting the use of such apps and requiring the White House to issue guidelines to ensure compliance with the PRA. The district court denied the writ, and we affirm. As explained below, CREW has failed to establish the most fundamental element of mandamus: a clear and indisputable right to relief.

         I.

         Enacted in the wake of Watergate and the ensuing struggle over Congress's authority to access former-President Nixon's records, the Presidential Records Act "establish[es] the public ownership of records created by . . . presidents and their staffs in the course of discharging their official duties." H.R. Rep. No. 95-1487, 95th Cong. at 2 (1978). Although the PRA makes clear that the United States "retain[s] complete ownership, possession, and control of Presidential records," 44 U.S.C. § 2202, it also provides that the President, during his term in office, shall assume "exclusive[] responsib[ility] for custody, control, and access to such Presidential records," id. § 2203(f). The PRA sets out three basic requirements for the handling of presidential records during a president's tenure.

         First, the Act requires that records "shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately." Id. § 2203(b). The PRA defines "[p]residential records" broadly to include all "documentary materials" "created or received by the President," his staff, and his advisors "in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." Id. § 2201(2).

         Second, the statute regulates the disposal of presidential records. "[T]he President may dispose of . . . records . . . that no longer have administrative, historical, informational, or evidentiary value," but only after "obtain[ing] the views, in writing, of the Archivist." Id. § 2203(c). The Archivist may seek Congress's advice on the proposed disposal if he believes that doing so "is in the public interest." Id. § 2203(e). Disposal decisions matter because presidential records-if not previously discarded, that is-become available for public release several years after a president leaves office. See id. § 2204(b)(2) (providing that "[a]ny such record which does not contain [statutorily exempted] information" shall be publicly available pursuant to the relevant Freedom of Information Act (FOIA) provisions "5 years after the date on which the Archivist obtains custody of such record").

         Third, the PRA directs the President, "[t]hrough the implementation of records management controls and other necessary actions," to "take all such steps as may be necessary to assure that [presidential] activities . . . are adequately documented and that such records are preserved and maintained as Presidential records." Id. § 2203(a).

         Richard Nixon could only have dreamed of the technology at issue in this case: message-deleting apps that guarantee confidentiality by encrypting messages and then erasing them forever once read by the recipient. Such apps, according to an article appearing in the Wall Street Journal just four days after President Trump's inauguration, were being used by White House staff "to communicate with each other about presidential or federal business." Complaint for Declaratory, Injunctive, and Mandamus Relief ¶ 50 (citing Mara Gay, Messaging App Has Bipartisan Support Amid Hacking Concerns, Wall Street Journal (Jan. 24, 2017), https://www.wsj.com/articles/messag ing-app-has-bipartisan-support-amid-hacking-concerns-14852 15028); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) ("accept[ing] all factual allegations in the complaint as true" at the motion-to-dismiss stage).

         This and other similar accounts piqued the interest of several members of the Oversight and Government Reform Committee of the U.S. House of Representatives, who sent a letter to White House Counsel expressing their concern that the use of message-deleting apps "could result in the creation of presidential or federal records that would be unlikely or impossible to preserve." Letter from Jason Chaffetz, Chairman & Elijah E. Cummings, House Oversight Committee to Donald McGahn, Counsel to the President 2 (Mar. 8, 2017). They asked Counsel to "[i]dentify policies and procedures currently in place to ensure all communications related to the creation or transmission of presidential records . . . are . . . preserved as presidential records." Id. at 3. In response, a White House official assured the members that the President was "committed to preserving records of activities" relating to his "constitutional, statutory or other official or ceremonial duties." Letter from Marc T. Short, Assistant to the President to Jason Chaffetz & Elijah E. Cummings, House Oversight Committee 1 (Apr. 11, 2017) ("Short Letter"). "All White House ...


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