Citizens for Responsibility & Ethics in Wash. & Nat'l SEC. Archive v. Trump
Opinion
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,"
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."
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."
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."
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/messaging-app-has-bipartisan-support-amid-hacking-concerns-14852 15028);
see also
Tellabs, Inc. v. Makor Issues & Rights, Ltd.
,
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 *605 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 employees," the official added, "have been trained on their responsibilities under the PRA," id. at 1, and the Office of the Counsel to the President "provides written guidance to inform employees of PRA requirements," id. at 2.
Though it was not public at the time, in February 2017, as press attention to the messaging practice spread and before this lawsuit commenced, White House Counsel circulated an internal memo describing the staff's PRA obligations ("February 2017 Memo"). See generally Memorandum for All Personnel Regarding Presidential Records Act Obligations (Feb. 22, 2017), https://go.usa.gov/xEckn (National Archives). Subsequently released pursuant to the Freedom of Information Act, the Memo prohibits the use of "instant messaging systems ... or other internet-based means of electronic communication to conduct official business," and directs White House personnel to "conduct all work-related communications on [their] official ... email account[s]" and to "preserve electronic communications that are presidential records." Id. at 2-3. On the same day the Memo issued, White House Counsel sent a "Compliance Reminder Email" advising staff that the "[u]se of ... messaging apps (such as Snapchat, Confide, Slack or others) ... is not permitted" for any "work-related communications." See Email from White House Counsel at 2 (Feb. 22, 2017), https://www.archives.gov/files/foia/Passantino %20Email %201 %20of %202_redacted.pdf (National Archives).
The House Oversight Committee was not the only group troubled by the White House's use of message-deleting apps. Alleging that "White House staff who use such apps cannot be in compliance with the PRA," Appellants' Br. 29, CREW sued, seeking a writ of mandamus compelling the president and the Executive Office (collectively, the "White House") to comply with their ostensibly "non-discretionary duties" under the statute: to categorize records as presidential or personal; to follow certain procedures, including notifying the Archivist, before disposing of records; and to implement record management guidelines.
See generally
Swan v. Clinton
,
The district court, focusing only on the duty to implement record management guidelines, concluded that nothing in the PRA "obligates the President to perform any duty with the requisite level of specificity that mandamus requires."
Citizens for Responsibility & Ethics in Washington v. Trump
,
CREW moved to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), pointing out that the district court had not addressed whether the use of message-deleting apps violated the other two duties identified in the complaint (records categorization and pre-disposal notification). The court denied the *606 motion. Finding that CREW had failed to develop those arguments in the complaint and opposition to the motion to dismiss, the court concluded that "CREW forfeited its arguments that either of the two duties it now points to ... are ministerial duties supporting a mandamus claim." Citizens for Responsibility & Ethics in Washington v. Trump , No. 17-1228, slip op. at 2 (D.D.C. June 25, 2018). And even if not forfeited, the district court explained, those arguments were "unavailing" as "[n]owhere does the [PRA] specifically prohibit the use of any particular means of communication." Id. at 3.
CREW appeals both decisions. "We review the threshold requirements for mandamus jurisdiction de novo."
American Hospital Ass'n v. Burwell
,
II.
"[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations."
Allied Chemical Corp. v. Daiflon, Inc
.,
In order to satisfy the first requirement at this stage of the litigation, i.e. motion to dismiss, CREW must plausibly allege that the White House is, in effect, defying the law.
See
In re Aiken County
,
We begin with the February 2017 Memo, which White House Counsel prepared and distributed for the very purpose of "remind[ing] all personnel of their obligation to preserve and maintain presidential records, as required by the Presidential Records Act." February 2017 Memo, at 1. The Memo summarizes the statute, "outlines what materials constitute 'presidential records,' " distinguishes between "presidential" and "[p]urely personal" records, id. at 2, and describes "what steps [personnel] must take to ensure [presidential records'] preservation," id. at 1. The Memo prohibits the use of unofficial "internet-based means of electronic communications" and "instant messaging systems," and it requires personnel to "preserve *607 electronic communications that are presidential records" and to use official email accounts for "all work-related communications." Id. at 2-3. And finally, the Memo forbids White House personnel from "dispos[ing] of presidential records," warning that "[a]ny employee who intentionally fails to take these actions may be subject to administrative or even criminal penalties." Id. at 3. In short, the Memo does just what the PRA requires.
CREW insists that we may not consider the February 2017 Memo at this motion-to-dismiss stage of the litigation.
See
Hurd v. District of Columbia
,
CREW argues that even if the February 2017 Memo may be considered, it fails to satisfy the three PRA obligations at issue in this case. We address each in turn, assuming for the sake of discussion that CREW has preserved its claims and that each of the three PRA obligations at issue creates a non-discretionary "duty to act."
American Hospital
,
CREW's first argument focuses on the statutory duty to "categorize[ ]" records.
CREW's second argument-that the use of message-deleting apps violates the President's duty to follow certain notification procedures before disposing of records,
see
Third, CREW claims that the President has failed to "implement ... records management controls."
Citing recent articles alleging that White House personnel have continued using message-deleting apps even after issuance of the February 2017 Memo, CREW alleges that the Memo has proved ineffective in bringing the White House into compliance with the PRA. It may well be, as CREW puts it, that questions about "what is actually happening in the White House," Appellants' Reply Br. 11, remain unanswered. But these types of "open questions" regarding the precise scope and effect of the facially PRA-compliant February 2017 Memo "are the antithesis of the 'clear and indisputable' right needed for mandamus relief."
In re Al-Nashiri
,
The February 2017 Memo unquestionably speaks to the White House's efforts to satisfy the President's PRA obligations, and in its brief here the White House confirms what the Compliance Reminder Email makes explicit: that the Memo "covers the kinds of messaging applications at issue." Appellees' Br. 17;
see also
In re Khadr
,
This brings us to the second and related obstacle to mandamus relief: even if, as CREW alleges, the February 2017 Memo is imperfectly enforced, we would lack jurisdiction to order the White House to take corrective action. That proposition flows not just from the nature of mandamus-the violation must be "clear and indisputable,"
American Hospital
,
In
Armstrong I
, the plaintiffs, fearing that then-President George H.W. Bush was mishandling presidential and federal records from the tail end of the Reagan Administration, alleged that Bush's "inten[tion] to delete material from the White House computer systems" ran afoul of the PRA and other statutes.
Two years later, the case returned to our court, this time focusing (in part) on guidelines issued by the White House to distinguish between presidential and federal records. The plaintiffs alleged that the guidelines violated FOIA and the Federal Records Act because they classified federal records, generally subject to immediate public release,
see
CREW and the White House have very different views about the implications of
Armstrong I
and
II
for this case. CREW interprets
Armstrong II
as authorizing courts to review "the Executive's ability to exempt an entire class of records (those created on message-deleting applications) from the PRA's reach." Appellants' Reply Br. 23. By contrast, the White House argues that the
Armstrong
decisions prohibit courts from reviewing any "claims that the President failed to comply with requirements of the [PRA]." Appellees' Br. 8. But we need not resolve that debate because even CREW agrees that when it comes to compliance with the PRA, courts have no jurisdiction to review the President's "day-to-day operations." Appellants' Reply Br. 23. As
Armstrong I
makes clear-and
Armstrong II
nowhere casts in doubt-when enacting the PRA, "Congress ... sought assiduously to minimize outside interference with the day-to-day operations of the President."
Armstrong I
,
Together, then, the February 2017 Memo and
Armstrong I
establish that CREW has no "clear and indisputable right to [mandamus] relief,"
American Hospital
,
*610
This resolution also disposes of CREW's claims for declaratory relief. For the same reasons that we decline to "resort to mandamus" to micromanage the President's day-to-day compliance with the PRA, we shall "not entertain [a claim] for declaratory relief."
Cartier v. Secretary of State
,
III.
For the foregoing reasons, we affirm.
So ordered.
Reference
- Full Case Name
- 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
- Cited By
- 14 cases
- Status
- Published