An ethics watchdog group is challenging the use of encrypted messaging apps by senior White House officials. Citizens for Responsibility and Ethics in Washington (CREW) asserts that this practice violates the Presidential Records Act (PRA), a novel transparency law enacted by Congress in the wake of Watergate. The case is pending before the Court of Appeals for the D.C. Circuit, and oral arguments are set for March 15. CREW v. Trumptests the limits of judicial oversight and congressional control over the Chief Executive: Among the three co-equal branches of the United States government, which branch is more equal than the others?
The story of the PRA begins in the spring of 1973, when White House Counsel John Dean finally started talking. Fearing that their dirty tricks would soon be exposed, President Richard Nixon and H.R. Haldeman planned to “get rid of” Nixon’s infamous White House tapes. Nixon ended up preserving the tapes—out of paranoia and on the theory that the evidence wouldn’t be discoverable by prosecutors—but by July, the Senate Watergate Committee had learned of the tapes, and the President received a subpoena. Nixon fought hard to withhold the tapes, taking the case all the way to the Supreme Court, which ruled unanimously against him in 1974.The Court held that the President could not assert the executive privilege as a means of obstructing justice.
This embarrassing episode led to the passage of the Presidential Records Act of 1978, which requires a sitting President to preserve and make public all records that relate to the performance of her official duties. Under the PRA, Presidential Records become the property of the United States, rather than the officeholder; all records must be furnished to the White House Archivist and ultimately made subject to public disclosure under the Freedom of Information Act (FOIA); and the President may not discard or destroy records without the express agreement of the Archivist. However, the President enjoys wide discretion on how best to implement the PRA, and Congress declined to include an enforcement mechanism to ensure compliance. Instead, legislators assumed future Presidents’ good-faith cooperation with the statutory mandate.
Enter, Donald J. Trump. Soon after Trump took office in 2017, the Washington Post reported that top White House officials were communicating with each other via Confide, an encrypted messaging app that allows users to send self-destructing messages. After CREW filed its complaint in federal court in June 2017, Politicoreported that the President also tears up physical documents, leaving them for staffers to tape back together. Recently, the Postreported that Trump withheld his interpreter’s notes from a meeting with Vladimir Putin. Given these facts, why are the plaintiffs in the CREW case playing defense?
The PRA has been seldom litigated, but courts have decided that the law allows for only narrow judicial review of a President’s recordkeeping practices. In Armstrong v. Bush (Armstrong I), the D.C. Circuit found that review of a President’s preservation guidelines was unavailable under the Administrative Procedures Act (APA) because the President is not an executive agency. 924 F.2d 282 (D.C. Cir. 1991).But in Armstrong v. Executive Office of the President (Armstrong II), the D.C. Circuit held that courts may“review guidelines outlining what is, and what is not, a ‘presidential record’ under the terms of the PRA.”1 F.3d 1274, 1290 (D.C. Cir. 1993).
Based on those rulings, the D.C. District Court granted the government’s motion to dismiss the case of CREW v. Trump. The court reasoned that mandamus relief (i.e. a court order) is available only under extraordinary circumstances, and that a President’s recordkeeping duties under the PRA are too discretionary to be enforced by court order. In short, the court found that judges may review the classification of existing records, but a court may not direct the President to affirmatively createand preserve particular records under the PRA.
It remains to be seen whether the plaintiffs in CREW will have the opportunity to make new law on appeal. The Court of Appeals for the D.C. Circuit has never before been presented with an analogous set of facts. May the President blatantly violate the central mandate of the PRA—to preserve Presidential Records—with impunity? Is the President to remain totally outside the bounds of the law?
The Court could very legitimately hold otherwise. There is some precedent for court interference with executive branch recordkeeping practices. In CREW v. Cheney found that mandamus was an available remedy for a Vice President’s failure to classify certain documents as Presidential Records. 593 F. Supp. 2d 194 (D.D.C. 2009). And in American Historical Ass’n v. Peterson, the District Court invalidated an agreement between President George H.W. Bush and the Archivist that would have conferred complete control of Presidential Records on the President after he left office. 876 F. Supp. 1300 (D.D.C. 1995).
Further, while the President controls the manner in which the White House will retain and preserve records, the PRA expressly requires that those records be preserved. Even the language in Armstrong I implies a dichotomy between the statute’s mandate and its manner of administration:“Congress balanced these competing goals [of Presidential discretion and the need for public disclosure] by requiringthe President to maintain records documenting the policies, activities, and decisions of his administration, but leaving the implementationof such a requirement in the President’s hands” (emphasis added). By destroying records and allowing his advisors to destroy records, the President is defying the express will of Congress.
The legislative history likewise suggests that Congress intended the PRA to bind the President. Consider this excerpt from the House Report on the proposed bill: “The [PRA] would terminate the tradition of private ownership of Presidential papers and the reliance on volunteerism to determine the fate of their disposition. Instead, the preservation of the historical record of the future Presidencies would be assuredand public access to the materials would be consistent under standards fixed in law.”H.R. No. 95-1487, 95th Cong., 2d Sess. § 2 (1978) (emphasis added). Those standards of preservation are up to the President, but he may not decline to have any standards at all.
If the courts decline to enforce the PRA, how else might the public’s right of access to Presidential Records be assured? Congress could attempt to bring a lawsuit against the Chief Executive for violating the PRA, forcing the courts to develop the law on Congressional Article III standing. Otherwise, it will be up to the people to hold their President accountable. As Bob Dylan once sang, “To live outside the law, you must be honest.” The President, for better and for worse, lives somewhat outside the law. It is up to all of us to keep him honest.