Donald Trump Can Destroy Records Without Judicial Review, Justice Department Tells Court

Trump Covfefe - Screengrab - H 2017

It's a question that pops up pretty much every time that Donald Trump deletes a tweet: Is he violating the Presidential Records Act?

In a court filing Friday, not only do attorneys at the Justice Department say that courts can't review this, but they also argue that when it comes to laws pertaining to government record-keeping, judicial review would be inappropriate even if Trump deleted secret recordings with administration officials or even if his staff purged phone records because they expected to be subpoenaed in connection with various investigations.

The arguments come in response to a lawsuit from the Citizens for Responsibility and Ethics in Washington, D.C.

In a complaint filed in June (read here in full), the watchdog group cited the Presidential Records Act and challenged the way Trump and staffers "seek to evade transparency and government accountability" by the alleged use of certain communications practices and by a consolidation of power that allegedly results in records being shielded from other disclosure laws like the Freedom of Information Act. In particular, CREW nodded to news reports that White House staffers were using Signal to send encrypted, disappearing messages as well as resorting to the secret chat app Confide to duck any record preservation. Also mentioning Trump's famous tweet implying a taped conversation with former FBI Director James Comey and the president's repeated deletion of social media messages, the plaintiff is asking for injunctive relief compelling Trump and his staff to comply with duties under the Presidential Records Act.

"Courts cannot review the President’s compliance with the Presidential Records Act," states Trump's motion to dismiss.

Justice Department attorneys handling the case refer to a 1991 decision out of the D.C. Circuit Court of Appeals — Armstrong v. Bush — for the proposition that "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,” and so “it is difficult to conclude that Congress intended to allow courts, at the behest of private citizens, to rule on the adequacy of the President’s records management practices or overrule his records creation, management, and disposal decisions.”

The motion (see here) primarily attacks the standing for plaintiffs (including the National Security Archive) to bring this case over Trump's compliance with the Presidential Records Act, a law that directs the country's leader to take steps necessary to ensure that executive branch decision making is adequately documented and maintained. According to a law review article by Carl Bretscher, the Presidential Records Act was passed in 1978 "to prevent a repeat of Watergate's legal drama surrounding ownership of presidential records."

The Justice Department says that the absence of any real or imminent injury — and CREW's failure to plead they intend to submit FOIA requests — dooms the litigation. But the Justice Department goes further.

"Even if Plaintiffs had standing, the vast majority of their claims are precluded by the PRA," states the memorandum in support of dismissal. "As noted above, the D.C. Circuit held in Armstrong that private litigants may not bring suit to challenge the President’s compliance with the PRA. While the D.C. Circuit subsequently held that courts hearing FOIA cases may review the President’s PRA guidelines to ensure that he does not improperly treat agency records subject to FOIA as though they were instead presidential records subject to the PRA, … D.C. Circuit law does not permit judicial review of whether the President is properly managing and preserving those records that are in fact subject to the PRA."

Trump is most concerned with allegations directed at the use of disappearing messages and the consolidation of power to evade disclosure, but does tackle the other stuff in a footnote. This appears to be the first time that the Trump Administration has addressed whether deleting tweets is a violation of law.

According to the brief , "Plaintiffs’ thirty-eight-page complaint also includes a number of other allegations that do not support any particular claim for relief, including that '[p]residential statements made on Twitter sent from the President’s personal Twitter account ... have been destroyed,' that the President might be deleting tape recordings of conversations with administration officials, and that White House aides might 'purge' their phones of 'potentially compromising information' in response to FBI and congressional investigations, Even if Plaintiffs had included claims for relief that are based on these allegations, review would be unavailable for all the reasons set out with respect to the claims for relief that they have actually pleaded."