United States Court of Appeals, District of Columbia Circuit
Citizens for Responsibility and Ethics in Washington and National Security Archive, Appellants
Donald J. Trump, The Honorable, President of the United States of America and Executive Office of the President of the United States, Appellees
March 15, 2019
from the United States District Court for the District of
Columbia (No. 1:17-cv-01228)
M. Clarke III argued the cause for appellants. With him on
the briefs was Anne L. Weismann.
B. Stern, Attorney, U.S. Department of Justice, argued the
cause for appellees. With him on the brief was Abby C.
Before: Tatel and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
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.
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.
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).
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").
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.
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
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).
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