UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, Plaintiff,

v. Civil Action No. 22-2292 (CKK)

PETER K. NAVARRO, Defendant.

MEMORANDUM OPINION AND ORDER (February 20, 2024)

This matter concerns Defendant’s compliance with this Court’s judgment as it relates to

the production of Presidential records in Defendant’s control. On March 9, 2023, the Court granted

Plaintiff’s motion for summary judgment, and ordered Defendant to, among other things, meet and

confer with Plaintiff and propose “search terms and methodology . . . to unequivocally identify

Presidential records in Defendant’s possession.” Order & Judgment, ECF No. 15. On April 12,

2023, the Court adopted the parties’ joint proposal, see ECF No. 24, and ordered Defendant to

“complete all searches for Presidential records” no later than May 8, 2023, see Minute Order (Apr.

12, 2023). The Court further ordered the parties to file a joint status report by May 15, 2023,

proposing a deadline “by which Defendant will produce the remaining Presidential records in his

possession.” Id. Despite these court orders, Defendant refused to conduct all subsequent searches

as required. See ECF No. 27 at 2. On May 19, 2023, the Court issued another order to enforce its

earlier judgment, directing Defendant to “search for and identify all Presidential records generated

across any and all of his personal accounts on which he transacted official business,” using certain

search parameters “at a minimum.” Order, ECF No. 28, at 2. Defendant was also ordered to

provide all Presidential records to Plaintiff based on those search results no later than May 25,

1 2023. Id.

Then, on May 31, 2023, Plaintiff moved to enforce the Court’s judgment, Mot. to Enforce

(“Motion” or “Mot.”), ECF No. 30, claiming Defendant is still noncompliant with the Court’s

judgment. On August 31, 2023, the Court granted in part Plaintiff’s Motion, and ordered

Defendant to explain his compliance with the Court’s judgment in this case. Order, ECF No. 32,

at 2. However, the Motion was held in abeyance to the extent Plaintiff “requests an order directing

Defendant to show cause why he should not be held in contempt of the Court’s judgment.” Id.

Defendant suggested and the Court adopted Defendant’s proposal to review Defendant’s upcoming

submissions, including Defendant’s sealed notice “listing all search terms used, the metadata fields

searched, and the email accounts searched” and a “random sample of fifty emails across each

account searched that were not identified as responsive in his last review.” Id. at 1–2. On October

16, 2023, Defendant filed a sealed notice detailing his compliance with the Court’s judgment. See

ECF No. 33 (sealed). The Court also received a random sample of records that Defendant

previously had not identified as responsive. These records have been maintained under seal.

Order, ECF No. 32, at 2. The Court has carefully reviewed the random sample of emails (and the

corresponding attachments) provided by Defendant to ascertain whether Defendant has in fact

retained Presidential records, as Plaintiff contends. With its review complete, the Court turns to

the resolution of Plaintiff’s [30] Motion to Enforce.

Under the Presidential Records Act (“PRA”), a Presidential record is a record generated or

received by a covered employee in the course of assisting with the discharge of the President’s

official duties. See

(2). The term “Presidential record” was intentionally drafted

broadly. See Am. Hist. Ass’n v. Peterson,

(D.D.C. 1995) (CRR)

(explaining the legislative history clarifies that the scope is “very broad since a great number of

2 what might ordinarily be construed as one’s private activities are, because of the nature of the

presidency, considered to be of public nature, i.e., they effect the discharge of [the President’s]

official or ceremonial duties.”).

Patently, the term does not include “personal records,” which is defined as “all

documentary materials, or any reasonably segregable portion thereof, of a purely private or

nonpublic character which do not relate to or have an effect upon the carrying out of the

constitutional, statutory, or other official or ceremonial duties of the President.”

(3). Of relevance here, the PRA includes three categories of materials that constitute

“personal records”:

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of transacting Government business; (B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and (C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

§ 2201(3)(A)–(C). Given these definitions, the classification between a Presidential record and

a personal record can hinge on what the covered employee prepared the material for, and what he

did with the material. See Jud. Watch, Inc. v. Nat’l Archives & Records Admin.,

, 301 n.9 (D.D.C. 2012) (ABJ).

It is undisputed that Defendant was a covered employee under the PRA. Statement of

Materials Facts (“SMF”), ECF No. 7-2, ¶ 6. Defendant was employed in the Executive Office of

the President from January 20, 2017 until January 20, 2021. Id. ¶ 1. Between January 20, 2017

until April 29, 2017, Defendant served as the Deputy Assistant to the President, Director of Trade

3 and Industrial Policy, and the inaugural head of the White House National Trade Council. Id. ¶ 2.

For the remainder of his employment in the White House Office, Defendant served as Assistant to

the President and Director of the Office of Trade and Manufacturing Policy. Id. ¶ 3. Defendant

was also appointed to coordinate the government’s use of the Defense Production Act,

et seq., to respond to the COVID-19 pandemic.

. Therefore, as the Court has already

concluded in its prior judgment, see ECF No. 15 at 3, the United States is the rightful owner of the

Presidential records created or received by Defendant in the course of assisting with the discharge

of the President’s official duties, see

(2), 2202.

The Court now turns to the random sampling of records provided by Defendant that were

previously identified as nonresponsive. In October 2023, Defendant provided for the Court’s

review fifty (50) emails, with some corresponding attachments. Upon consideration of the

definitions provided by the PRA, as well as Defendant’s role in the White House Office during the

applicable period, the Court concludes that at least twenty-two (22) (i.e., 44%) of the fifty emails

are not Presidential records. Conversely, the Court concludes that at least twelve (12) of those

emails (i.e., 24%) are Presidential records.

For the remaining materials, which comprises of sixteen (16) emails (and some

attachments), a conclusion cannot be reached at this stage. The Court cannot determine whether

these materials are Presidential records or personal records, as their classification depends on why

Defendant prepared them and/or what he did with them. See, e.g., Jud. Watch, Inc.,

n.9. For instance, four (4) of these records appear to be journal entries in which

Defendant writes about various aspects of his life. But the mere fact that the material is a journal

entry does not mean it is a personal record, particularly as the journal entries include work-related

topics. See

(3)(A) (personal records include “diaries, journals, or personal notes

4 . . . which are not prepared or utilized for . . . transacting Government business[.]”) (emphasis

added). Similarly, many of these records relate to the 2020 Presidential Election and were either

generated or received in late-November 2020 to early-January 2021. Once again, although these

records relate to a Federal election, it does not mean that they automatically become a “personal

record.” See

§ 2201(3)(C). To obtain such status, the materials must “have no relation to or

direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties

of the President.” Id. (emphasis added).

Overall, the Court calculates that at least 24% of the materials provided in the random

sampling are Presidential records as that term is defined under the PRA. But, since sixteen of these

records (i.e., 32%) cannot be classified as either a Presidential record or a personal record at this

time, the error rate in this case ranges from 24% to 56%. In the FOIA context, an error rate of

25%, particularly when coupled with “intransigen[ce]” by the producing party, is “unacceptably

high” and suggests that many documents have been improperly withheld. Meeropol v. Meese,

(D.C. Cir. 1986); see, e.g., Clemente v. F.B.I.,

(D.D.C.

2012) (BJR) (an error rate of 26.5% required complete reprocessing); cf. Citiz. for Resp. & Ethics

in Washin. v. U.S. Dep’t of Just.,

(D.D.C. 2014) (an error rate of 1% is not

sufficient to prompt further disclosures); Shapiro v. Dep’t of Just., No. 12-cv-313,

, at *41 (D.D.C. July 2, 2020) (BAH) (a “potential” error rate of 16%, when coupled with

the agency’s “diligent processing,” is insufficient to justify complete reprocessing).

In sum, based on the Court’s review of Defendant’s random sampling, it is clear that

Defendant continues to possess Presidential records that have not been produced to their rightful

owner, the United States. It is likewise clear that Defendant’s error rate is not minimal or

negligible, and is likely “unacceptably high.” Given Plaintiff’s difficulty in obtaining its

5 Presidential records, additional supervision of Defendant’s compliance with this Court’s judgment

is warranted. To accomplish this goal, the Court shall refer this matter to a magistrate judge to

ensure that Defendant provides all Presidential records to Plaintiff, including but not limited to the

twelve records already identified by this Court.

Accordingly, Plaintiff’s [30] Motion to Enforce is GRANTED. Defendant is ordered to

SHOW CAUSE why he should not be held in contempt of the Court’s judgment, on or before

March 21, 2024. Upon receipt of Defendant’s response to the Court’s Show Cause Order, the

Court shall refer this matter to a magistrate judge for supervision, with the aim of bringing this

litigation to its final resolution. The magistrate judge shall also review the sixteen records in

Defendant’s random sampling to determine whether those records are Presidential records or

personal records. Meanwhile, the Court directs Defendant to reprocess the remaining records in

his possession on or before March 20, 2024, which appears to be approximately 600 records, see

ECF No. 31 at 3, in accordance with this Memorandum Opinion and Order to determine whether

additional records are identified as responsive and can be produced to Plaintiff prior to this matter

being assigned to a magistrate judge. Defendant’s production to Plaintiff shall include the twelve

records (the emails and any corresponding attachments) identified by this Court to be Presidential

records: DCD Review 2; DCD Review 6; DCD Review 137; DCD Review 251; DCD Review 389;

DCD Review 434; DCD Review 438; DCD Review 452; DCD Review 483; DCD Review 480;

DCD Review 519; and DCD Review 526.

SO ORDERED.

Date: February 20, 2024 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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