United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al., Plaintiffs,
DONALD J. TRUMP et al., Defendants.
CHRISTOPHER R. COOPER United States District Judge.
case raises difficult questions concerning the ability of
private citizens to sue the President for violations of his
duty to preserve his official records for historical account.
Citing media reports that appeared soon after President Trump
took office, plaintiffs Citizens for Responsibility and
Ethics in Washington and the National Security Archives
allege that White House staffers have conducted official
business using instant messaging applications that
automatically delete messages after they are read. Plaintiffs
seek a declaratory judgment that the use of these apps
violates the Presidential Records Act of 1978, which
obligates the President to first classify and then take steps
to maintain “presidential records.” They also
request injunctive and mandamus relief requiring the
President to comply with the Act. Finally, Plaintiffs seek a
declaration that the White House has violated the Take Care
Clause of the Constitution by making policy through executive
order, rather than agency rulemaking, so as to avoid the
public disclosure of records under other statutes like the
Administrative Procedure Act and the Freedom of Information
Act. The government has moved to dismiss the suit.
of automatically-disappearing text messages to conduct White
House business would almost certainly run afoul of the
Presidential Records Act. But that merits question is not
before the Court. Rather, the threshold question presented by
the government's motion to dismiss is whether Plaintiffs
have identified a valid cause of action that would enable
their case to proceed to the merits. The Court concludes that
they have not.
Presidential Records Act reflects a careful legislative
balancing of two competing goals. See Armstrong v.
Bush (“Armstrong I”), 924 F.2d 282,
290 (D.C. Cir. 1991). On the one hand, Congress wanted to
ensure that presidential records are preserved so that the
public would have access to them after the President leaves
office. Id. On the other, Congress “sought
assiduously to minimize outside interference with the
day-to-day operations of the President and his closest
advisors and to ensure executive branch control over
presidential records during the President's term in
office.” Id. In striking this balance,
Congress chose not to create a private right of action to
enforce the Act. And because the President is not an agency,
see Franklin v. Massachusetts, 505 U.S. 788, 801
(1992), his compliance with the PRA cannot be challenged
under the Administrative Procedure Act.
extent judicial review of the President's decisions under
the Presidential Records Act is at all available, plaintiffs
must root their claims elsewhere. Here Plaintiffs invoke the
Court's mandamus jurisdiction. But they have failed to
state a valid mandamus claim because the actions they seek to
compel-like the issuance of guidelines prohibiting the use of
the challenged messaging apps-are too discretionary in nature
to satisfy the stringent requirements for mandamus relief.
And because Plaintiffs have failed to state a valid mandamus
claim, the counts of their complaint that are premised on
violations of the Presidential Records Act must be dismissed.
contention that the President has violated the
Constitution's Take Care Clause by making policy through
executive order meets a similar fate. Whether claims brought
directly under the Take Care Clause are even justiciable is
open to debate. But regardless of whether some form of relief
is available, Plaintiffs have not stated a claim to it here.
They challenge no particular executive order; they concede
that the President may issue executive orders generally; and
they offer no authority preventing the President from
choosing to address an issue through executive order rather
than the administrative process, even if that choice limits
the public's access to government records. As a result,
the Court must dismiss the Plaintiffs' Take Care Clause
claim as well.
The Presidential Records Act and the Federal Records
creation, management, and disposal of records by the federal
government is controlled by two key statutes: the
Presidential Records Act and the Federal Records Act.
Presidential Records Act (“PRA”) specifically
governs the maintenance and destruction of
“Presidential records.” See 44 U.S.C.
§ 2201 et seq.; see also Armstrong I,
924 F.2d at 285-86. It was enacted in 1978 following
controversy over the ownership of Richard Nixon's
presidential records. See Citizens for Responsibility
& Ethics in Washington v. Cheney
(“CREW”), 593 F.Supp.2d 194, 199 (D.D.C.
2009). Congress, in passing the PRA, “sought to
establish the public ownership of presidential records and
ensure the preservation of presidential records for public
access after the termination of a President's term in
office.” Armstrong I, 924 F.2d at 290.
records” are defined under the PRA as
“documentary materials, or any reasonably segregable
portion thereof, created or received by” the President
or the President's staff “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.” 44
U.S.C. § 2201(2). Such records do not include materials
“of a purely private or nonpublic character.”
Id. § 2201(2)(B)(ii), (3). Nor do
“presidential records” include the
“official records of an agency, ” as defined by
the Freedom of Information Act (“FOIA”).
Id. § 2201(2)(B)(i).
directs that the “President shall take all such steps
as may be necessary to assure that the activities,
deliberations, decisions, and policies that reflect the
performance of the President's . . . duties are
adequately documented and that such records are preserved and
maintained as Presidential records pursuant to” the
statute. Id. § 2203(a). During the
President's term, the President “may dispose of
those Presidential records of such President that no longer
have administrative, historical, informational, or
evidentiary value.” Id. § 2203(c). Prior
to doing so, the President must obtain the views of the
Archivist of the United States concerning the records the
President wishes to destroy. Id. § 2203(c)(1).
The Archivist may, and in some situations shall, notify
Congress of the intended destruction, and the President must
wait at least 60 days after such notification to destroy the
records. Id. § 2203(d), (e). But the PRA
“gives neither the Archivist nor the Congress the
authority to veto the President's decision to destroy the
records.” Armstrong I, 924 F.2d at 286.
creation, management, and disposal of agency
records, by contrast, is governed by the Federal Records Act
(“FRA”). See 44 U.S.C. §§ 2101
et seq.; see also Armstrong I, 924 F.2d at
284-85. The FRA defines “records” as “all
recorded information, regardless of form or characteristics,
made or received by a Federal agency . . . and preserved . .
. by that agency or its legitimate successor as evidence of
the organization, functions, policies, decisions, procedures,
operations, or other activities of the United States
Government.” 44 U.S.C. § 3301(a)(1)(A).
directs the head of every federal agency to “make and
preserve records containing adequate and proper documentation
of the organization, functions, policies, decisions,
procedures, and essential transactions of the agency.”
Id. § 3101. Each agency head must also
“establish and maintain an active, continuing program
for the economical and efficient management of the records of
the agency” and must “establish safeguards
against the removal or loss of records.” Id.
§§ 3102, 3105. Agency records may not be destroyed
except as outlined in the FRA. Id. § 3314.
Factual and Procedural Background
following relevant background is drawn from the allegations
set forth in the complaint, which the Court must accept as
true at this stage of the litigation. See Doe v.
Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012). Shortly
after President Trump's inauguration, the press reported
that members of his immediate staff were using messaging
applications known as Signal and Confide. Compl. ¶¶
50, 56. Signal allows users to send text, video, and picture
messages to others and includes a “disappearing
messaging function” whereby the user can set a time
limit by which the sent message will be deleted from both the
recipient's and sender's devices. Id.
¶¶ 51-52. Confide is a similar messaging
application that automatically deletes text messages when the
recipient “wands” over the message's words to
read them. Id. ¶¶ 56, 58. Following these
reports, several members of Congress wrote letters to the
White House seeking information about the use of applications
like Signal and Confide. Id. ¶ 63. In response,
the Administration neither confirmed nor denied that the apps
had been or were being used, simply noting that White House
policy was to comply with the Presidential Records Act. Mem.
P. & A. Opp'n Defs.' Mot. Dismiss (“CREW
Opp'n”) at 6-7.
light of the press reports and the Administration's
refusal to squarely deny them, Citizens for Responsibility
and Ethics in Washington and the National Security Archive
(collectively “CREW”) filed suit against
President Trump and the Executive Office of the President.
CREW alleged that the use of applications like Confide and
Signal prevented White House staff from adequately
determining whether a record is a presidential record and
that the automatic deletion of messages violated the
Presidential Records Act. Compl. ¶¶ 91-95. It
sought declaratory relief that the use of the applications
themselves, as well as the failure to issue guidelines
regulating their use, violated the Act. Id.
¶¶ 98, 102. Additionally, CREW sought injunctive
and mandamus relief requiring the President, his staff, and
the Executive Office to comply with their non-discretionary
duties under the Act. Id. ¶ 108. Finally, CREW
sought a declaratory judgment that the Defendants'
alleged practice of issuing executive orders to create policy
in a manner designed to remove records from the scope of the
Federal Records Act and FOIA is contrary to the Take Care
Clause of the Constitution. Id. ¶ 120. The
government subsequently moved to dismiss the case. The Court
held a hearing on the motion on January 17, 2018 and will now
government has moved for dismissal under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and under Rule 12(b)(6) for failure to state a
claim upon which relief may be granted. When analyzing a
motion to dismiss under either Rule 12(b)(1) or Rule
12(b)(6), “[t]he court assumes the truth of all
well-pleaded factual allegations in the complaint and
construes reasonable inferences from those allegations in the
plaintiff's favor, but is not required to accept the
plaintiff's legal conclusions as correct.”
Sissel v. U.S. Dep't of Health & Human
Servs., 760 F.3d 1, 4 (D.C. Cir. 2014) (Rule 12(b)(6));
see also Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1253 (D.C. Cir. 2005) (Rule 12(b)(1)).
respect to a motion to dismiss under Rule 12(b)(1), the
plaintiff bears the burden of establishing subject matter
jurisdiction. Harris v. Sebelius, 932 F.Supp.2d 150,
151 (D.D.C. 2013). The Court may look to materials outside