ORAL ARGUMENT REQUESTED No. 18-5150 in the UNITED STATES

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 1 of 269

ORAL ARGUMENT REQUESTED

No. 18-5150

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Citizens for Responsibility and Ethics in Washington and National Security Archive,

Plaintiffs-Appellants, v.

Donald J. Trump, the Honorable President of the United States of America, and Executive Office of the President,

Defendants-Appellees.

On Appeal from the United States District Court for the District of Columbia

CORRECTED JOINT APPENDIX

GEORGE M. CLARKE III ANNE L. WEISMANN

BAKER & MCKENZIE LLP CITIZENS FOR RESPONSIBILITY 815 Connecticut Avenue, N.W. AND ETHICS IN WASHINGTON Washington, D.C. 20006 1101 K Street, N.W., Suite 201 (202) 835-6184 Washington, D.C. 20005 [email protected] (202) 408-5565 [email protected]

Attorneys for Plaintiffs-Appellants

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TABLE OF CONTENTS*

Item Page

District Court Docket Sheet ...... JA001 Complaint, dated June 22, 2017 ...... JA007 Defendants’ Motion to Dismiss, dated October 6, 2017 ...... JA045 Defendants’ Memorandum in Support to Motion to Dismiss, dated October 6, 2017 ...... JA047 Plaintiffs’ Memorandum in Opposition to Motion to Dismiss, dated November 3, 2017 ...... JA092 Memorandum Opinion Granting Motion to Dismiss, dated March 20, 2018 ...... JA238 Order Granting Motion to Dismiss, dated March 20, 2018 ...... JA259 Order Denying Plaintiffs’ Motion to Amend or Alter Judgment, dated June 25, 2018 ...... JA260 The White House, Memorandum for All Personnel, Presidential Records Act Obligations, dated February 22, 2017 ...... JA264

*On January 22, 2019, Appellants filed an original Joint Appendix with this Court. In the process of preparing the Joint Appendix, Appellants inadvertently omitted the attachments to "Plaintiffs' Memorandum in Opposition to Motion to Dismiss, dated November 3, 2017," consisting of three declarations and attached exhibits. This Corrected Joint Appendix includes those omitted pages with page numbers of JA142 through JA237.

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APPEAL,CLOSED,TYPE−E U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−01228−CRC

CITIZENS FOR RESPONSIBILITY AND ETHICS IN Date Filed: 06/22/2017 WASHINGTON et al v. TRUMP et al Date Terminated: 03/20/2018 Assigned to: Judge Christopher R. Cooper Jury Demand: None Case in other court: USCA, 18−05150 Nature of Suit: 890 Other Statutory Cause: 44:2107 Presidential Recordings and Materials Act Actions Jurisdiction: U.S. Government Defendant Plaintiff CITIZENS FOR RESPONSIBILITY represented by Angela C. Vigil AND ETHICS IN WASHINGTON BAKER & ;MCKENZIE, LLP 1111 Bricikell Avenue Suite 1700 Miami, FL 33131 (305) 789−8904 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anne L. Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 455 Massachusetts Avenue, NW 6th Floor Washington, DC 20001 (202) 408−5565 Fax: (202) 588−5020 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katie Michelle Bailo Marcusse BAKER & MCKENZIE LLP 100 New Bridge Street London EX4V 6JA UK 44 20 7919 1508 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mireille R. Oldak BAKER & MCKENZIE, LLP 815 Connecticut Avenue NW

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Washington, DC 20006 (202) 835−6176 Fax: (202) 416−7176 Email: [email protected] ATTORNEY TO BE NOTICED

George M. Clarke , III BAKER & MCKENZIE, LLP 815 Connecticut Avenue NW Washington, DC 20006 (202) 835−6184 Fax: (202) 452−7074 Email: [email protected] ATTORNEY TO BE NOTICED

Plaintiff NATIONAL SECURITY ARCHIVE represented by Angela C. Vigil (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mireille R. Oldak (See above for address) ATTORNEY TO BE NOTICED

George M. Clarke , III (See above for address) ATTORNEY TO BE NOTICED

V. Defendant DONALD J. TRUMP represented by Steven A. Myers The Honorable, President of the United UNITED STATES DEPARTMENT OF States of America JUSTICE Civil Division, Federal Programs Branch 20 Masachusetts Avenue, NW Washington, DC 20530 (202) 305−8648 Fax: (202) 616−8460 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant JA002 2 Case 1:17-cv-01228-CRC Document 31 Filed 07/02/18 Page 3 of 33 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 5 of 269

EXECUTIVE OFFICE OF THE represented by Steven A. Myers PRESIDENT OF THE UNITED (See above for address) STATES LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Page Docket Text 06/22/2017 1 COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF against All Plaintiffs ( Filing fee $ 400 receipt number 0090−5001574) filed by NATIONAL SECURITY ARCHIVE, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to the President of the United States, # 3 Summons to the Executive Office of the President, # 4 Summons to the Attorney General, # 5 Summons to the United States Attorney for the District of Columbia)(Clarke, George) (Entered: 06/22/2017) 06/22/2017 2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Oldak, Mireille) (Entered: 06/22/2017) 06/22/2017 3 NOTICE of Appearance by Mireille R. Oldak on behalf of All Plaintiffs (Oldak, Mireille) (Entered: 06/22/2017) 06/22/2017 Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 06/22/2017) 06/22/2017 4 SUMMONS (4) Issued Electronically as to EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, DONALD J. TRUMP, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 06/22/2017) 06/22/2017 5 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL SECURITY ARCHIVE (Oldak, Mireille) (Entered: 06/22/2017) 06/23/2017 6 NOTICE of Appearance by Anne L. Weismann on behalf of All Plaintiffs (Weismann, Anne) (Entered: 06/23/2017) 07/10/2017 7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/23/2017. Answer due for ALL FEDERAL DEFENDANTS by 8/22/2017. (Oldak, Mireille) (Entered: 07/10/2017) 07/27/2017 8 NOTICE of Appearance by Steven A. Myers on behalf of All Defendants (Myers, Steven) (Entered: 07/27/2017) 07/27/2017 9 Consent MOTION for Extension of Time to File Answer re 1 Complaint,, by EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Myers, Steven) (Entered: 07/27/2017) 08/01/2017 MINUTE ORDER granting 9 Defendants' Motion for Extension of Time to File their Answer. It is hereby ORDERED that Defendants shall file their Answer or otherwise respond to the Complaint on or by October 6, 2017. Signed by Judge Christopher R. Cooper on 8/1/2017. (lccrc2) (Entered: 08/01/2017)

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08/01/2017 Set/Reset Deadlines: Answer due by 10/6/2017 (lsj) (Entered: 08/01/2017) 08/23/2017 10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Angela Coin Vigil, :Firm− Baker & McKenzie LLP, :Address− 1111 Brickell Avenue, Suite 1700, Miami, FL 33131. Phone No. − 305−789−8904. Filing fee $ 100, receipt number 0090−5086860. Fee Status: Fee Paid. by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE (Attachments: # 1 Declaration Declaration, # 2 Text of Proposed Order Proposed Order)(Clarke, George) (Entered: 08/23/2017) 08/24/2017 MINUTE ORDER granting 10 Motion for Admission to Appear Pro Hac Vice. Signed by Judge Christopher R. Cooper on 8/24/2017. (lccrc2) (Entered: 08/24/2017) 10/06/2017 11 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction by EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Myers, Steven) (Entered: 10/06/2017) 10/10/2017 12 Joint MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE (Attachments: # 1 Text of Proposed Order)(Clarke, George) (Entered: 10/10/2017) 10/11/2017 13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Katie Michelle Bailo Marcusse, :Firm− Baker & McKenzie LLP, :Address− 100 New Bridge Street, London EX4V 6JA, United Kingdom. Phone No. − +44 20 7919 1508. Fax No. − +44 20 7919 1999 Filing fee $ 100, receipt number 0090−5153935. Fee Status: Fee Paid. by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Clarke, George) (Entered: 10/11/2017) 10/12/2017 MINUTE ORDER granting 13 Motion for Admission to Appear Pro Hac Vice. Signed by Judge Christopher R. Cooper on 10/12/2017. (lccrc2) (Entered: 10/12/2017) 10/13/2017 MINUTE ORDER granting 12 Motion for Extension of Time. Plaintiffs' Opposition to Defendants' Motion to Dismiss shall be due by November 3, 2017. Defendants' Reply shall be due by November 21, 2017. Signed by Judge Christopher R. Cooper on 10/13/2017. (lccrc2) (Entered: 10/13/2017) 11/03/2017 14 Memorandum in opposition to re 11 MOTION to Dismiss filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Text of Proposed Order)(Clarke, George) (Entered: 11/03/2017) 11/03/2017 15 AFFIDAVIT re 14 Memorandum in Opposition by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Clarke, George) (Entered: 11/03/2017) 11/03/2017 16 AFFIDAVIT re 14 Memorandum in Opposition by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Clarke, George) (Entered: 11/03/2017)

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11/03/2017 17 ENTERED IN ERROR.....AFFIDAVIT re 14 Memorandum in Opposition by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Clarke, George) Modified on 11/6/2017 (jf). (Entered: 11/03/2017) 11/03/2017 18 AFFIDAVIT re 14 Memorandum in Opposition by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Clarke, George) (Entered: 11/03/2017) 11/06/2017 NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 17 Affidavit, was entered in error at the request of counsel as a duplicate to 18 .(zjf) (Entered: 11/06/2017) 11/21/2017 19 REPLY to opposition to motion re 11 MOTION to Dismiss filed by EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, DONALD J. TRUMP. (Myers, Steven) (Entered: 11/21/2017) 12/13/2017 MINUTE ORDER: The parties are to appear for a hearing on the pending motion to dismiss on January 17, 2018 at 10:00 am in Courtroom 27A before Judge Christopher R. Cooper. Signed by Judge Christopher R. Cooper on 12/13/2017. (lccrc2) (Entered: 12/13/2017) 12/13/2017 Set/Reset Hearings: Motion Hearing set for 1/17/2018 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (lsj) (Entered: 12/13/2017) 01/17/2018 Minute Entry for Motion Hearing held before Judge Christopher R. Cooper on 1/17/2018. Defendants' Motion 11 to Dismiss argued. Motion taken under advisement; forthcoming Order. (Court Reporter Lisa Moreira) (lsj) (Entered: 01/17/2018) 03/20/2018 20 8 ORDER granting 11 Defendants' Motion to Dismiss. For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendants' Motion to Dismiss is granted. Signed by Judge Christopher R. Cooper on 3/20/2018. (lccrc2) (Entered: 03/20/2018) 03/20/2018 21 9 MEMORANDUM OPINION re 20 Order granting Defendants' Motion to Dismiss. Signed by Judge Christopher R. Cooper on 3/20/2018. (lccrc2) (Entered: 03/20/2018) 04/17/2018 22 MOTION to Alter Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE (Attachments: # 1 Text of Proposed Order)(Clarke, George) (Entered: 04/17/2018) 04/25/2018 23 Joint MOTION for Briefing Schedule re: Plaintiffs' Motion to Alter Judgment by EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Myers, Steven) (Entered: 04/25/2018) 04/26/2018 MINUTE ORDER granting 23 Joint Motion for Briefing Schedule. Defendants' opposition shall be due by May 15, 2018 and Plaintiffs' reply shall be due by May 29, 2018. Signed by Judge Christopher R. Cooper on 4/26/2018. (lccrc2) (Entered: 04/26/2018)

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04/27/2018 Set/Reset Deadlines: Defendants' opposition due by 5/15/2018. Plaintiffs' Reply due by 5/29/2018. (lsj) (Entered: 04/27/2018) 05/15/2018 24 Memorandum in opposition to re 22 MOTION to Alter Judgment filed by EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, DONALD J. TRUMP. (Attachments: # 1 Text of Proposed Order)(Myers, Steven) (Entered: 05/15/2018) 05/18/2018 25 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 20 Order on Motion to Dismiss, by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. Filing fee $ 505, receipt number 0090−5488882. Fee Status: Fee Paid. Parties have been notified. (Clarke, George) (Entered: 05/18/2018) 05/18/2018 26 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 25 Notice of Appeal to DC Circuit Court. (jf) (Entered: 05/18/2018) 05/23/2018 USCA Case Number 18−5150 for 25 Notice of Appeal to DC Circuit Court, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (zrdj) (Entered: 05/23/2018) 05/23/2018 27 ORDER of USCA holding case in abeyance as to 25 Notice of Appeal to DC Circuit Court, filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE ; USCA Case Number 18−5150. (ztd) (Entered: 05/23/2018) 05/29/2018 28 REPLY to opposition to motion re 22 MOTION to Alter Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Clarke, George) (Entered: 05/29/2018) 06/25/2018 29 30 ORDER denying 22 Plaintiffs' Motion to Alter Judgment. Signed by Judge Christopher R. Cooper on 6/25/2018. (lccrc2) (Entered: 06/25/2018) 06/29/2018 30 7 Amended NOTICE OF APPEAL re appeal 25 by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY ARCHIVE. (Clarke, George) (Entered: 06/29/2018)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, 455 Massachusetts Avenue, N.W. Sixth Floor Washington, D.C. 20001

NATIONAL SECURITY ARCHIVE Gelman Library George Washington University Civil Action No.______2130 H Street, N.W. Suite 701 Washington, D.C. 20037

Plaintiffs,

THE HON. DONALD J. TRUMP, President of the United States of America 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500

EXECUTIVE OFFICE OF THE PRESIDENT, 725 17th Street, N.W. Washington, D.C. 20503

Defendants.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

1. This is a civil action for declaratory, injunctive, and mandamus relief brought

under the Presidential Records Act, 44 U.S.C. §§ 2201–2209 (“PRA”); the Declaratory

Judgment Act, 28 U.S.C. §§ 2201 and 2202; and Article II, Section 3 of the Constitution, which

imposes on the President a duty to “take care that the laws be faithfully executed,” challenging

actions of the President, his staff, and the Executive Office of the President (“EOP”)

(collectively, the “Defendants”) that seek to evade transparency and government accountability.

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First, this suit challenges as contrary to law the Defendants’ communications practices that

knowingly prevent the proper preservation of records the Defendants generate or receive when

carrying out the President’s constitutional, statutory, or other official duties. Second, Plaintiffs

challenge the Defendants’ usurpation of agency duties and responsibilities by consolidating

power in the White House. As decisions generated by the White House, Executive Orders are

cloaked in secrecy, preventing federal agencies from complying with their statutory duties

under the Federal Records Act (“FRA”), the Administrative Procedure Act (“APA”), and the

Freedom of Information Act (“FOIA”).

2. Plaintiffs bring this action at a time when allegations of potential misconduct and

questionable decision-making have been leveled against President Donald J. Trump and other,

high-level White House officials. Among other things, President Trump’s purported pressuring

of then-FBI Director James Comey to terminate the FBI’s investigation of former National

Security Advisor Michael Flynn, and his firing of Mr. Comey after the FBI director refused to

terminate the investigation are just some of President Trump’s actions that have been

questioned as illegal and have raised an issue regarding his conduct as President. These

questions can be resolved only through access to contemporaneous records that explain what the

President did and why.

3. Critical checks and balances are built into our system of government, including

those implemented through congressional and judicial oversight. The ability of those checks

and balances to work depends on the availability of a record of President Trump’s actions.

Thus, the Defendants’ compliance with their record-keeping responsibilities under the PRA and

FRA could not be more important.

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4. Yet, the evidence to date suggests that President Trump and others within the

White House are either ignoring or outright flouting these responsibilities. From early on in this

Administration, White House staff have used and, on information and belief, continue to use

certain email messaging applications that destroy the contents of messages as soon as they are

read, without regard to whether the messages are presidential records. Presidential statements

made on Twitter sent from the President’s personal Twitter account, which are subject to federal

record-keeping obligations, have been destroyed. The President also has implied that he is

secretly tape-recording some or all conversations with Administration officials, and it is unclear

if these tapes are being preserved. And there is at least one news report that, when the ongoing

congressional and FBI investigations were disclosed, White House aides purged their phones of

potentially compromising information. These practices violate the Presidential Records Act.

5. At the same time, the Defendants have centralized much of the governmental

decision-making within the White House. This ensures decisions normally made or

implemented by Executive Branch agencies evade disclosure under laws like the FOIA,

preservation under laws like the FRA, and public review and comment under the APA. Because

of the Administration’s centralization, however, the Defendants, not agencies, are charged with

maintaining records generated from these decisions. As a result of this usurpation of record-

keeping responsibility, records that the public otherwise would have the right, under the law, to

access because they would be agency records subject to disclosure under the FOIA are

improperly cloaked as presidential records subject to the President’s exclusive control and

beyond the reach of the public. Similarly, decisions that would otherwise be subject to review

under the APA are improperly shielded from review as presidential decisions. See Kate

Brannen, Steve Bannon Is Making Sure There Is No White House Paper Trail, Says Intel Source,

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Foreign Policy (Jan. 30, 2017), http://foreignpolicy.com/2017/01/30/steve-bannon-is-making-

sure-theres-no-white-house-paper-trail-trump-President/.

6. These actions by the Defendants, which have prevented federal agencies from

complying with their statutory responsibilities, violate the constitutional requirement that the

President take care that the law be faithfully executed. As a further consequence, this regime

increases the likelihood that valuable historical records of this presidency are already lost, and

will continue to be lost, to Plaintiffs and the public, absent injunctive and declaratory relief.

JURISDICTION AND VENUE

7. This Court has personal and subject-matter jurisdiction over this action pursuant

to 28 U.S.C. § 1331 (action arising under the laws of the United States); 44 U.S.C. §§ 2201–

2209 (the PRA); 44 U.S.C. §§ 3101–3107 (the FRA); 28 U.S.C. § 1361 (mandamus); and 28

U.S.C. §§ 2201 and 2202 (the Declaratory Judgment Act).

8. Venue in this district is proper pursuant to 28 U.S.C. § 1391(e).

PARTIES

9. Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) is a

nonprofit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue

Code. CREW is committed to protecting the right of citizens to be informed about the activities

of government officials and to ensuring the integrity of government officials. To advance its

mission, CREW uses a combination of research, litigation, advocacy, and public education to

disseminate information to the public about public officials and their actions. CREW researches

and reviews data made available to the public under the PRA, and uses the FOIA to obtain

information about the government critical to its mission and purpose. CREW has a significant

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interest in accessing historical presidential records in a timely fashion, including the records of

the current Administration when they become available for public review.

10. CREW has filed nearly 100 FOIA requests since the start of the Trump

Administration, including with those EOP components subject to the FOIA, on a wide variety of

subjects ranging from President Trump’s travel ban imposed on majority-Muslim countries to

the ethics conflicts posed by many Executive Branch appointees. In addition, CREW has used

the APA to challenge agency policies it believes are contrary to law.

11. Founded in 1985 by journalists and scholars to check rising government secrecy,

the National Security Archive combines a unique range of functions: investigative journalism, a

research institute on international affairs, and a library and archive of declassified U.S.

documents that is often considered the world’s largest nongovernmental collection of such

materials. The Archive is one of the leading non-profit users of the FOIA and is also a public

interest law firm defending and expanding public access to government information. In these

roles, the Archive has established an extraordinary track record of highly credible, award-

winning investigative journalism and scholarship.

12. For Plaintiffs, access to and the ability to view presidential records are essential to

fulfill their core missions. Using certain communications technology that prevents the

preservation of a record almost from when it is created deprives, and will continue to deprive,

the Plaintiffs of eventual access to the documentary history of this presidency. See, e.g.,

Armstrong v. Bush, 924 F.2d 282, 287-88 (D.C. Cir. 1991) (citing Am. Friends Service Comm.

v. Webster, 720 F.2d 29, 57 (D.C. Cir. 1983)). Not only the Plaintiffs, but the American public,

will lose vital information and insight about presidential policies and decision making, which

are required to interpret and prevent illegal or unwise government action.

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13. Defendant Donald J. Trump is the President of the United States and is sued in his

official capacity only. President Trump is subject to the requirements of the PRA, including the

obligation to segregate and preserve his presidential records for eventual transfer to the National

Archives and Records Administration (“NARA”) when his term of office concludes. See 44

U.S.C. § 2203. He also is subject to the constitutional requirement to take care that the law be

faithfully executed. This constitutional duty includes a mandate that non-discretionary aspects

of the laws be followed. Marbury v. Madison, 5 U.S. 137, 179 (1803).

14. Defendant Executive Office of the President includes the agency known as the

EOP and its individual components. The agency components of the EOP subject to the FOIA

and the FRA include the Council on Environmental Quality, the Office of Management and

Budget, the Office of National Drug Control Policy, the Office of Science and Technology

Policy, and the Office of the United States Trade Representative. All other EOP components

are subject to the PRA, and beyond the reach of the FOIA.

STATUTORY AND CONSTITUTIONAL FRAMEWORK

The PRA

15. In response to presidential misconduct revealed by the Watergate scandal,

Congress enacted the PRA in 1978 to establish public ownership of presidential and vice

presidential records, to impose record-keeping requirements on the President and Vice

President, and to authorize the NARA to preserve and make publicly available presidential

records. See Carl Bretscher, The President and Judicial Review Under the Records Act, 60

Geo. Wash. L. Rev., 1477, 1483 (1992) (PRA passed “to prevent a repeat of Watergate’s legal

drama surrounding ownership of presidential records”).

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16. Toward that end, the PRA specifies that “[t]he United States shall reserve and

retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. §

2202.

17. The PRA directs the President to “take all such steps as may be necessary to

assure that the activities, deliberations, decisions, and policies that reflect the performance of his

constitutional, statutory, or other official or ceremonial duties are adequately documented and

that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a).

18. The PRA defines “Presidential records” broadly to include documentary materials

“created or received by the President, the President’s immediate staff, or a unit or individual of

the Executive Office of the President whose function is to advise or assist the President” in

conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44

U.S.C. § 2201(2). The PRA excludes from the definition of presidential records “personal

records,” defined as those “of a purely private or nonpublic character” unrelated to the

President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3).

19. The PRA defines “documentary materials” to include, inter alia, “electronic or

mechanical recordations.” 44 U.S.C. § 2201(1). As the PRA’s legislative history explains,

Congress intended the scope of the term “Presidential records” to be “very broad since a great

number of 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 his

official or ceremonial duties.” H.R. Rep. No. 95-1487, at 11-12 (1978), as reprinted in 1978

U.S.C.C.A.N. 5732, 5742-43. Further, “an examination of the nature of political activities in

which a President becomes involved shows that few are truly private and unrelated to the

performance of his duties.” H.R. Rep. No. 95-1487, at 12.

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20. Congress broadly defined “documentary materials” to ensure that the President

and NARA preserve records that have, or may later be found to have, great historical value.

NARA guidance explains:

Every day the President and his staff generate thousands of records both textual and audiovisual providing insight into the issues confronting our nation. Presidential Libraries preserve not only these official records, but also the personal papers of Presidential family members, associates, and friends. Together, these archival materials provide a comprehensive view of our Presidents and our history.

NARA, Research Presidential Materials, National Archives,

https://www.archives.gov/presidential-libraries/research (last visited June 8, 2017).

21. The PRA also dictates when and how presidential records may be destroyed

during a President’s term of office. The President may destroy his or her non-personal records

only after the President affirmatively determines that the records “no longer have

administrative, historical, or evidentiary value[.]” 44 U.S.C. § 2203(c). Once a President

determines that he or she may destroy his or her non-personal records, the President must obtain

the written views of the Archivist of the United States (the “Archivist”) that the Archivist does

not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2).

22. Further, after the Archivist states, in writing, that he or she does not intend to take

action with respect to the destruction of specified presidential records, the President must then

notify the appropriate congressional committee sixty days before the proposed disposal date of

the President’s intention to dispose of the records. 44 U.S.C.§ 2203(d). This multi-step process

reflects the care Congress took to ensure presidential records could be destroyed only after

considered deliberation by multiple entities.

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23. The PRA confers on the Archivist “responsibility for the custody, control, and

preservation of, and access to, the presidential records” upon conclusion of a President’s term of

office. 44 U.S.C. § 2203(g)(1). In addition, the PRA imposes on the Archivist “an affirmative

duty to make such records available to the public as rapidly and completely as possible

consistent with provisions of this chapter.” Id.

24. Innovations in communications technology led Congress to expand the scope of

the PRA to embrace new means of communication. In 2014, Congress amended the PRA to,

among other things, address the issue of presidents and vice presidents using “non-official

electronic message accounts.” See Presidential and Federal Records Act Amendments of 2014,

Pub. L. No. 113-187, § 2, 128 Stat. 2003, 2006-07 (codified at 44 U.S.C. § 2209).

25. The 2014 amendment prohibits the President, his staff, and the EOP from using

non-official electronic message accounts unless they: (1) copy one of the President’s official

electronic messaging accounts, or that of his staff or EOP; or (2) forward a complete copy of the

presidential record to an official electronic messaging account of the President, his staff, or

EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within

twenty days after the presidential record is created or transmitted. Id. Those who intentionally

violate this provision are subject to disciplinary action. 44 U.S.C. § 2209(b).

26. Further, Congress defined “electronic messages” under the PRA to mean

“electronic mail and other electronic messaging systems that are used for purposes of

communicating between individuals.” 44 U.S.C. § 2209(c)(2) (emphasis added).

27. Congress explained that the purpose of this amendment was to “ensure that all

Presidential records, even those sent from a personal electronic messaging account, are properly

preserved and maintained.” S. Rep. No. 113-218, at 4 (2014) (Comm. Rep.). Congress

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recognized the need to “modernize federal recordkeeping statutes and additional changes to

improve the federal government’s ability to capture and archive electronic records.” Id. at 1-2.

28. NARA likewise continues to evolve its policies to keep up with the pace of

communications technology innovation and use in the federal government. NARA Bulletin

2015-02 sets forth new guidance for the heads of federal agencies on managing electronic

messages. See NARA, Bulletin 2015-02, National Archives (July 29, 2015), available at

https://www.archives.gov/records-mgmt/bulletins/2015/2015-02.html. Specifically, NARA

guidance recognizes that “[e]lectronic messages created or received in the course of agency

business are Federal records[.]” Id. Not only are such electronic messages federal records, but

those like email messages, which “are more likely to contain substantive information,” are

“likely to require retention for several years, or even permanently.” Id.

29. Beyond emails, the 2015 NARA Bulletin lists a myriad of electronic messaging

applications (apps) and platforms, including chat/instant messaging, text messaging, voicemail

messaging, social media, and other mobile device applications to which it applies. Id. The

guidance makes clear that such communications, including those sent from a Twitter account,

must be managed as “records.” Id.; see also NARA, White Paper on Best Practices for the

Capture of Social Media Records (May 2013), https://www.archives.gov/files/records-

mgmt/resources/socialmediacapture.pdf.

30. Although presidential records are not subject to the Freedom of Information Act

while a President is in office, the records become subject to FOIA requests under the PRA

beginning five years after a President leaves office, with some material (classified material or

material which reflects the deliberative process) subject to the FOIA beginning twelve years

after a President leaves office. 44 U.S.C. § 2204(a)–(c).

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The FRA

31. The FRA is the corollary record-keeping statute for federal agencies. Congress

enacted, and amended, the FRA to assure “[a]ccurate and complete documentation of the

policies and transactions of the Federal Government,” and “[j]udicious preservation and

disposal of records.” 44 U.S.C. § 2902(1), (5).

32. Under the FRA, each head of a federal agency must

make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.

44 U.S.C. § 3101. The head of each federal agency also must “establish safeguards against the

removal or loss of records [the federal agency head] determines to be necessary and required by

regulations of the Archivist.” 44 U.S.C. § 3105.

33. The public or other interested parties may request the disclosure of agency records

subject to the FRA through the FOIA. See 5 U.S.C. § 552(f). The FOIA’s purpose is gutted

where records that should be accessible through this mechanism were never preserved.

The APA

34. Beyond these record laws, the APA governs internal rulemaking procedures of

federal agencies. See 5 U.S.C. §§ 551-559. A federal agency creates a rule subject to the APA

when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).

35. The APA requires agencies engaging in rulemaking to provide public notice of a

proposed rulemaking in the Federal Register, 5 U.S.C. § 553(b); to provide interested persons

with a meaningful opportunity to comment on the proposed rule, 5 U.S.C. § 553(c); and to

engage in reasoned decision making, considering all public comments. 5 U.S.C. § 553(c);

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Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 54

(1983).

36. Agency rules are subject to judicial review and must be consistent with the

statutory text authorizing the agency to promulgate regulations. 5 U.S.C. § 706(2); see also

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

The FOIA

37. The FOIA, enacted in 1966, established a statutory right of public access upon

request to information held by Executive Branch agencies. Congress enacted the FOIA to

“ensure an informed citizenry, vital to the functioning of a democratic society, needed to check

against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978). The FOIA carries a “strong presumption in favor

of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions

do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the

Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

38. Under the FOIA, virtually every record of a federal agency must be made publicly

available, unless it is specifically exempted pursuant to one or more of the FOIA’s nine

exemptions. 5 U.S.C. § 552(b). Those exemptions describe categories of information that may

be withheld, generally, but not always, as a matter of discretion. Those government entities that

fall outside the APA’s definition of “agency,” including the Office of the President, are not

subject to the FOIA. See, e.g., Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 156 (1980).

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The Constitution

39. Article II, Section 3 of the U.S. Constitution (the “Take Care Clause”) provides,

“[The President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3.

As interpreted by the Supreme Court, the Take Care Clause imposes a “duty” or “obligation” on

the President to ensure that Executive Branch officials comply with Congress’ laws. Kendall v.

United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

40. In the context of the Presidential Records Act, at least one court has held that a

President violates both the PRA and the Take Care Clause by actions purporting to give an

outgoing President power that infringes on the incumbent President’s constitutional

responsibilities. Am. Historical Ass’n v. Peterson, 876 F. Supp. 1300, 1322 (D.D.C. 1995).

While the context of that case differs from the actions challenged here, that decision nevertheless

confirms that a President’s duties and obligations flow from both the PRA and the Take Care

Clause.

FACTS GIVING RISE TO PLAINTIFFS’ CLAIMS FOR RELIEF

The President, the Law, and Technology Collide in Executive Actions

41. On January 20, 2017, Donald J. Trump was inaugurated as the 45th President of

the United States.

42. On Inauguration Day, the President tweeted,

Today, we are not merely transferring power from one Administration to another, or from one party to another – but we are transferring . . . power from Washington, D.C. and giving it back to you, the American people. #InaugurationDay

Donald Trump (@realDonaldTrump), Twitter (Jan. 20, 2017, 12:51 PM),

https://twitter.com/realDonaldTrump/status/822501939267141634.

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43. In fact, since 1978, the American people have had access to presidential records

created or received after 1981, once a President leaves office. See 44 U.S.C. § 2203(g)(1).

Because of the PRA, that power remains in the hands of the American people — the owners of a

President’s records — rather than in the hands of the President or the President’s staff.

44. Despite the President’s day-one tweet promising to return power to the people, he

has deprived the public of the opportunity to exercise any power by cloaking presidential actions

in a veil of secrecy. At the outset of the Trump Administration, the EOP issued gag orders

prohibiting or limiting federal agencies such as the Environmental Protection Agency, the

Department of Health and Human Services, the Department of the Interior, including the

National Parks Service, and the Department of Agriculture from speaking to the public and the

press. See, e.g., Mathew Ingram, Trump Administration Puts Gag Order on Several Government

Agencies, Fortune (Jan. 24, 2017), http://fortune.com/2017/01/24/trump-gag-order/; Juliet

Eilperin & Brady Dennis, Trump Administration Instructs Federal Agencies to Cease

Communicating With the Public, Chicago Tribune (Jan. 24, 2017),

http://www.chicagotribune.com/news/nationworld/politics/ct-trump-federal-agencies-

communications-20170124-story.html.

45. When the President turned to congressional staffers to help him draft his first

Muslim travel ban executive order, he made them sign non-disclosure agreements. See, e.g.,

Rachel Bade et al., Hill Staffers Secretly Worked on Trump’s Immigration Order, Politico (Jan.

30, 2017), http://www.politico.com/story/2017/01/trump-immigration-congress-order-234392.

This was a carryover from his long-established business practices. Julie Pace and Chad Day,

Donald Trump Requires Nondisclosure Agreements, Assoc. Press (June 21, 2016),

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https://www.usnews.com/news/politics/articles/2016-06-21/for-many-trump-employees-keeping-

quiet-is-legally-required.

46. More recently, the White House announced it would not continue the policy of the

Obama Administration of making White House visitor logs public on a regular and ongoing

basis. See, e.g., Julie Hirschfeld Davis, White House to Keep Its Visitor Logs Secret, N.Y.

Times (Apr. 14, 2017), https://www.nytimes.com/2017/04/14/us/politics/visitor-log-white-

house-trump.html?_r=0.

47. And in early May, President Trump implied that as President he has continued his

private sector practice of taping conversations. See, e.g., Philip Rucker, Trump Suggests There

May Be ‘Tapes’ of His Private Conversations With Former FBI Director, Wash. Post (May 12,

2017), https://www.washingtonpost.com/news/post-politics/wp/2017/05/12/trump-suggests-

there-may-be-tapes-of-his-private-conversations-with-former-fbi-

director/?utm_term=.8e8af800d902; Marc Fischer, Trump Has a Long History of Secretly

Recording Calls, According to Former Associates, Wash. Post (May 12, 2017),

https://www.washingtonpost.com/politics/trump-has-a-long-history-of-secretly-recording-calls-

according-to-former-associates/2017/05/12/b302b038-372d-11e7-b412-

62beef8121f7_story.html?utm_term=.094b52f0a79d. While the White House has yet to confirm

that such taping is, in fact, taking place, reportedly there remains in the Oval Office “the ability

to record conversations,” a carryover from numerous past presidents. Philip Bump, Why It’s

Likely that Trump Does Have Recordings of His Oval Office Conversations, Wash. Post (May

12, 2017), https://www.washingtonpost.com/news/politics/wp/2017/05/12/why-its-likely-that-

trump-does-have-recordings-of-his-oval-office-conversations/?utm_term =.174 28424d7dd. And

at a June 8, 2017 press conference, White House Principal Deputy Press Secretary Sarah

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Huckabee Sanders did not deny the existence of a West Wing taping system, saying instead she

has “no idea” if it exists. Abby Phillip, White House Spokeswoman Has ‘No Idea’ If There Are

Tapes, Wash. Post (June 8, 2017), https://www.washingtonpost.com/politics/2017/live-

updates/trump-white-house/james-comey-testimony-what-we-learn/white-house-spokeswoman-

has-no-idea-if-there-are-tapes/?hpid=hp%20_rhp-top-table-main_liveblog-910a-

desktop%3Aprime-time%2Fpromo&utm_term=.18c170d892af.

Technology’s Role in the Defendants’ Failure to Determine Whether to Preserve Presidential Records

48. The President has stated “if you have something really important, write it out and

have it delivered by courier, the old-fashioned way. Because I’ll tell you what: No computer is

safe.” Jill Colvin, Trump Says He Doesn’t Trust Computers as He Rings in 2017, Assoc. Press

(Jan. 1, 2017), http://www.apnewsarchive.com/2017/President-elect-Donald-Trump-says-that-

no-computer-is-safe-when-it-comes-to-keeping-information-private/id-

3cc7e56c71bc49978823ce54f318f6cd. Despite this statement, the President, his staff, and the

EOP heavily use electronic messaging tools and platforms to conduct presidential and federal

business.

49. At the outset of this Administration, NARA posted “Guidance on Presidential

Records” on its website. NARA paid special attention to preserving electronic records under the

PRA:

The vast and growing use of electronic systems to create and manage Presidential records requires special attention. Because so many of the most important policy records may exist only in electronic form, it is imperative that these records be identified, maintained, and protected from loss or change. Most of these systems will have to be transferred to NARA at the end of the Administration so that the records can be preserved and accessed. Accordingly, it is essential that records management requirements are designed directly into such systems from the very beginning,

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particularly when using proprietary systems, which can include capabilities to archive in place in coordination with NARA.

NARA, Guidance on Presidential Records 9, National Archives,

https://www.archives.gov/files/presidential-records-guidance.pdf (last visited June 13, 2017)

(emphasis added).

50. Notwithstanding this guidance, on January 24, 2017, the Wall Street Journal

reported that at least some of the President’s staff were using Signal, an encrypted peer-to-peer

messaging application, to communicate with each other about presidential or federal business.

See Mara Gay, Messaging App Has Bipartisan Support Amid Hacking Concerns, Wall St. J.

(Jan. 24, 2017), https://www.wsj.com/articles/messaging-app-has-bipartisan-support-amid-

hacking-concerns-1485215028. See also Kaveh Waddell, The Risks of Sending Secret Messages

in the White House, The Atlantic (Feb. 15, 2017),

https://www.theatlantic.com/technology/archive/2017/02/white-house-secret-messages/516792/;

Maya Kosoff, White House Staffers Are using a Secret App to Speak Freely, Vanity Fair (Feb.

27, 2017), http://www.vanityfair.com/news/2017/02/white-house-staffers-are-using-a-secret-

chat-app-to-speak-freely. Communications sent with Signal are encrypted at both the sender and

user ends, meaning no one else can read them. See Open Whisper Systems,

https://whispersystems.org/ (last visited June 8, 2017).

51. Open Whisper Systems Private Messaging, or Signal, is a free, open-source

communications application that allows the user to “send high-quality group, text, picture, and

video messages” using an “existing phone number and address book.” Open Whisper Systems,

https://whispersystems.org/#page-top (last visited June 8, 2017). Signal has “[a]rchive

functionality mak[ing] it easy to keep track of the conversations that matter.” Id.

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52. Signal also has a disappearing message function that allows the user to set a timer

to delete the message from all devices. Open Whisper Systems,

https://whispersystems.org/blog/disappearing-messages/ (last visited June 16, 2017).

53. Open Whisper Systems is a private software organization funded by donations

and grants, unaffiliated with the U.S. Government.

54. On information and belief, neither the President, nor his staff, nor the EOP have

contracted with, or otherwise engaged, Open Whisper Systems as a contractor to segregate,

control, preserve, or maintain documentary materials related to the President’s conduct of

constitutional, statutory, official, or ceremonial business.

55. On information and belief, the President, his staff, and the EOP are failing to

comply with the PRA when they use Signal to conduct presidential or federal business, because

they do not affirmatively decide whether a record sent via Signal is a presidential record

requiring preservation before they delete the communications.

56. On February 13, 2017, the Washington Post reported that at least some of the

President’s staffers “have resorted to a secret chat app—Confide —that erases messages as soon

as they’re read.” Ashley Parker & Philip Rucker, Upheaval is Now Standard Operating

Procedure Inside the White House, Wash. Post (Feb. 13, 2017),

https://www.washingtonpost.com/politics/upheaval-is-now-standard-operating-procedure-inside-

the-white-house/2017/02/13/d65dee58-f213-11e6-a9b0-

ecee7ce475fc_story.html?utm_term=.e6b84d988da8.

57. Confide, Inc., the developer of the Confide messaging app, is a privately-held,

third-party technology company unaffiliated with the U.S. Government. On information and

belief, neither the President, nor his staff, nor the EOP have contracted with, or otherwise

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engaged, Confide, Inc., as a contractor to segregate, control, preserve, or maintain documentary

materials related to the President’s conduct of constitutional, statutory, official, or ceremonial

business.

58. Confide touts its product as a “confidential messenger.” Confide Inc.,

https://getconfide.com/ (last visited June 8, 2017). Toward that end, users of Confide receive

messages from colleagues, “‘wand’ over the words with [their] finger or mouse to read them, and

watch them disappear without a trace when [they’re] done.” Confide, Frequently Asked

Questions, https://getconfide.com/faq (last accessed June 8, 2017). The messages remain intact

only until the reader “wands” over the screen, at which point the messages are destroyed and are

no longer capable of being preserved. Confide touts the fact that by using Confide messages are

“gone for good – no forwarding, no printing and no archiving.” Id. This destruction occurs with

no independent assessment by the message sender or recipient of whether the message

constitutes a presidential record.

59. Beyond these preservation issues, the use of Confide by EOP staff also has raised

critical questions about whether Confide contains the “military-grade encryption” that it markets.

Security researchers say features of Confide leave users vulnerable to interception. Kate Conger,

Researchers Critique Security in Messaging App Confide, TechCrunch (Mar. 8, 2017),

https://techcrunch.com/2017/03/08/researchers-critique-security-in-messaging-app-confide/.

60. On information and belief, the President, his staff, and the EOP have outsourced

and absolved themselves of all decision-making as to whether to preserve a presidential record

when they use Confide to conduct presidential or federal business. The Confide app itself, rather

than any of the Defendants, summarily and without consideration, deletes all messages.

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61. On information and belief, neither the President, nor his staff, nor the EOP have

generated or implemented policies or guidelines for preserving or maintaining presidential or

federal business communications produced or received by the President and his staff in and

through third party messaging services, including but not limited to Confide, Signal, or similar

applications, despite their knowledge that these services are being used to conduct official

business.

62. On information and belief, at least a portion of the electronic messages using

Confide, Signal, or similar applications that the Defendants produce or receive are produced or

received while conducting the President’s constitutional, statutory, official, and ceremonial

duties within the scope of the PRA.

63. On March 8, 2017, Jason Chaffetz, Chairman of the Oversight and Government

Reform Committee of the U.S. House of Representatives (“House Oversight Committee”), and

Ranking Member Elijah E. Cummings sent a letter to White House Counsel Donald F. McGahn

II regarding the obligations of the President and EOP under the PRA (“Chaffetz PRA Letter to

President”). Specifically, Mr. Chaffetz and Mr. Cummings observed:

Recent news reports suggest federal employees may increasingly be turning to new forms of electronic communication, including encrypted messaging applications like Signal, Confide, and WhatsApp, that could result in the creation of presidential or federal records that would be unlikely or impossible to preserve. The security of such applications is unclear. Generally, strong encryption is the best defense against cyber breaches by outside actors, and can preserve the integrity of decision-making communications. The need for data security, however, does not justify circumventing requirements established by federal recordkeeping and transparency laws.

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Letter from Jason Chaffetz & Elijah Cummings, Comm. on Oversight and Gov’t Reform, to

Donald McGahn, Counsel to the President (Mar. 8, 2017) (on file with the Comm.) at 2

(footnotes omitted).

64. Mr. Chaffetz and Mr. Cummings requested that the President, inter alia:

Identify all policies referring or relating to the use of non-official electronic messaging accounts, including email, text message, messaging applications, and social media platforms, to conduct official business, including but not limited to archiving and recordkeeping procedures.

Identify all policies referring or relating to the use of official text message or other messaging or communications applications, and social media platforms to conduct official business, including but not limited to archiving and recordkeeping procedures.

Identify policies and procedures currently in place to ensure all communications related to the creation or transmission of presidential records on official electronic messaging accounts other than email, including social networking platforms, internal agency instant messaging systems and other communications applications, are properly secured and preserved as presidential records.

Id. at 3 (footnotes omitted).

65. Document destruction within the EOP has extended beyond the use of messaging

apps like Confide and Signal. On March 24, 2017, Andrea Mitchell, a news anchor for MSNBC,

reported that the President’s staff was purging their phones because they expected to be

subpoenaed in connection with various investigations involving the President. Frank DiPrima,

Any WH Staffer or Campaign Assoc Purging Phone Faces 20 Years in Prison for Obstruction of

Justice, Daily Kos (Mar. 24, 2017), http://www.dailykos.com/story/2017/3/24/1647106/-Any-

WH-Staffer-of-Campaign-Assoc-Purging-Phone-Faces-20-Years-in-Prison-for-Obstruction-of-

Justice.

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66. When they use electronic messaging platforms, Defendants have also blurred the

lines between “official” electronic messaging platforms accounts and personal or private

electronic messaging platforms and accounts to conduct government business. Since his

inauguration, President Trump has continued to use his personal Twitter account (or “handle”),

“@RealDonaldTrump,” to tweet his views, commentary, and official actions to the American

public. By contrast, the President uses the official presidential Twitter handle, @POTUS, more

sporadically, including to retweet from @RealDonaldTrump the President’s statements made on

Twitter.

67. When the President expresses his views on U.S. international relations, national

security, and our nation’s defense against terrorism, he often uses his personal Twitter handle.

For example, on April 9, 2017, he used his personal Twitter account to comment on a terrorist

attack in Egypt, expressing “confidence that President Al Sisi [sic] will handle situation

properly,” and further “So sad to hear of the terrorist attack in Egypt. U.S. strongly condemns . .

.” Donald Trump (@realDonaldTrump), Twitter (Apr. 9, 2017, 11:20 AM),

https://twitter.com/realDonaldTrump/status/851092500056072198. President Trump said he will

continue to use his personal Twitter handle to “speak directly ‘to the people’” on national and

international issues. Shontavia Johnson, Donald Trump’s Tweets Are Now Presidential Records,

U.S. News & World Rep. (Feb. 1, 2017), https://www.usnews.com/news/national-

news/articles/2017-02-01/donald-trumps-tweets-are-now-presidential-records.

68. As with secret tape recordings, President Trump’s use of a personal Twitter

account raises issues about proper document preservation. In a letter dated March 30, 2017, to

Senators Claire McCaskill and Tom Carper, David Ferriero, Archivist of the United States, stated

that NARA has advised the White House that the President’s statements made on Twitter both

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from his personal and official Twitter handles must be preserved as the PRA requires. See Letter

from David Ferriero, NARA, to Senators McCaskill and Carper (Mar. 30, 2017), available at

https://www.archives.gov/files/press/press-releases/aotus-to-sens-mccaskill-carper.pdf (last

visited June 8, 2017).

69. According to the Archivist, the White House claims to be capturing all

presidential statements made on Twitter. Id. Nevertheless, numerous statements made by

President Trump on Twitter have been deleted. In some instances, the deletions appear to be an

attempt to avoid criticism over apparent conflicts of interest, such as a tweet concerning the

President’s meeting with generals at his Mar-a-Lago residence. See Ben Kentish, Donald Trump

Deletes Tweet About Meeting Generals at his Mar-a-Lago Florida Resort, The Independent (Feb.

22, 2017), http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-delete-

tweet-generals-meeting-mar-a-lago-florida-keith-kellogg-h-r-mcmaster-a7590886.html.

70. On information and belief, from the outset of the Trump Administration, the

President, his staff, and EOP have failed to adopt adequate policies and guidelines to identify and

segregate presidential records in the first instance. This failure keeps presidential records from

being managed and preserved pursuant to the PRA.

71. On information and belief, from the outset of the Trump Administration, the

Defendants have failed to adopt adequate policies and guidelines to maintain and preserve

presidential records.

The Process Used by the President to Generate Many of His Executive Orders Cloaks Them in Secrecy and Puts Them Beyond the Reach of the FOIA and the Administrative Rulemaking Process

72. Since his inauguration on January 20, 2017, the President has issued at least 43

executive orders, purporting to rely on powers granted to him by Article II of the U.S.

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Constitution. Only the President may issue and sign executive orders. The President’s ability to

issue executive orders is, by its very nature, a presidential act, not a personal one.

73. On information and belief, for at least some of these executive orders the White

House has maintained control over the process and the documents it generated to avoid leaving a

publicly accessible paper trail. That process, headed by White House advisor Steve Bannon,

reportedly was run like “a cabal, almost like a shadow NSC [National Security Council],” and

“outside of the normal construct.” Brannen, Foreign Policy (Jan. 30, 2017). As a result,

individuals like Secretary of Homeland Security John Kelly reportedly were being briefed on the

executive order implementing a travel ban on individuals from specified majority-Muslim

counties just as the President was in the middle of signing the order. Id. See also Evan Perez,

Pamela Brown, and Kevin Liptak, Inside the Confusion of the Trump Executive Order and

Travel Ban, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-

ban/index.html.

74. Nevertheless, leaks by the President, his staff, and/or the EOP have offered a

glimpse into the President’s process to formulate the orders. On information and belief,

government personnel outside of the President, his staff, and the EOP have had significant roles

in preparing, reviewing, and commenting on draft executive orders, including personnel in

Executive Branch agencies. For example, on January 25, 2017, an unsigned, red-lined draft

executive order titled “Executive Order — Detention and Interrogation of Enemy Combatants”

(“Draft Black Site EO”), which raised the possibility of reviving CIA “black site” prisons, was

released to the public through the U.S. media. See, e.g., Greg Miller, White House Draft Order

Calls for Review on Use of CIA ‘Black Site’ Prisons Overseas, Wash. Post (Jan. 25, 2017),

https://www.washingtonpost.com/world/national-security/white-house-draft-order-calls-for-

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review-on-use-of-cia-black-sites-overseas/2017%0b/01/25/e4318970-e310-11e6-a547-

5fb9411d332c_story.html?utm_term=.626751994d49; Mark Mazzetti & Charlie Savage, Leaked

Draft of Executive Order Could Revive C.I.A. Prisons, N.Y. Times (Jan. 25, 2017),

https://www.nytimes.com/2017/01/25/us/politics/executive-order-leaked-draft-national-security-

trump-administration.html.

75. White House Press Secretary Sean Spicer stated in a press briefing on January 25,

2017, that the Draft Black Site EO “is not a White House document,” see, e.g., CBS/AP, Sean

Spicer: Draft Order on Interrogation Methods ‘Is Not a White House Document’, CBS News

(Jan. 25, 2017), http://www.cbsnews.com/news/trump-executive-action-torture-black-site-

prisons/, which would make it an agency record outside the scope of the PRA and publicly

accessible through the FOIA. The draft EO, however, was attached to an electronic message the

White House circulated to NSC staff members on January 24, 2017, at 8:41 a.m., Mazzetti &

Savage, N.Y. Times (Jan. 25, 2017), all indicia of a record created and controlled by the White

House.

76. In addition to the Draft Black Site EO, six draft immigration-related executive

orders also were leaked to Vox on January 25, 2017. See Matthew Yglesias & Dara Lind, Read

Leaked Drafts of 4 White House Executive Orders on Muslim Ban, End to DREAMer Program,

and More, Vox (Jan. 25, 2017), https://www.vox.com/policy-and-

politics/2017/1/25/14390106/leaked-drafts-trump-immigrants-executive-order.

77. One of the leaked draft executive orders, titled “Protecting the Nation from

Terrorist Attacks by Foreign Nationals,” proposed to “temporarily ban entries from seven

majority-Muslim countries and bar all refugees from coming to the US for several months.”

(“Draft Travel Ban EO”). Id.

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78. On January 27, 2017, President Trump signed the executive order “Protecting the

Nation from Foreign Terrorist Entry into the United States” (“Travel Ban EO”). Exec. Order No.

13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017),

https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-

foreign-terrorist-entry-into-the-united-states. This, along with other executive orders, was

prepared “outside of the normal construct” according to an unnamed intelligence official within

the Trump Administration. Brannen, Foreign Policy, (Jan. 30, 2017).

79. On January 31, 2017, during a press conference about the Travel Ban EO,

Secretary Kelly stated that his agency was involved in drafting the executive order. Specifically,

Secretary Kelly said, “We did know the executive order was coming. We had people involved in

the general drafting of it.” See, e.g., Alan Neuhauser, Homeland Security Defends Trump’s

Muslim Immigration Order, U.S. News & World Rep. (Jan. 31, 2017),

https://www.usnews.com/news/national-news/articles/2017-01-31/homeland-security-defends-

trumps-muslim-immigration-order. Secretary Kelly further stated that he had reviewed “two

‘initial drafts’ of the order ‘that were coming back and forth’ between [DHS] and the White

House.” Id. He reiterated “I saw the draft.” Id. Secretary Kelly’s statements conflict with other

reporting that the White House kept DHS and other affected agencies out of the process of

preparing and finalizing the executive order. Mazzetti & Savage, N.Y. Times (Jan. 25, 2017).

80. On January 31, 2017, the Washington Post received two draft executive orders.

Abigail Hauslohner and Janell Ross, Trump Administration Circulates More Draft Immigration

Restrictions, Focusing on Protecting US. Jobs, Wash. Post (Jan. 31, 2017),

https://www.washingtonpost.com/world/national-security/trump-administration-circulates-more-

draft-immigration-restrictions-focusing-on-protecting-us-jobs/2017/01/31/38529236-e741-11e6-

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80c2-30e57e57e05d_story.html?utm_term=.825e6cd13500. The first draft, dated January 23,

2017, was accompanied by a memorandum on White House letterhead from Andrew Bremberg,

assistant to the President, and was titled “Executive Order on Protecting Taxpayer Resources by

Ensuring Our Immigration Laws Promote Accountability and Responsibility.” (“Draft

Immigration – Public Charge EO”). Id. The second draft, with the same date and accompanying

memo also authored by Mr. Bremberg, was titled “Executive Order on Protecting American Jobs

and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” (“Draft

Immigration – Visa EO”). Id.

81. On February 20, 2017, less than one month after the President signed the Border

Security EO, DHS publicly released two implementation memos dated February 20, 2017:

“Implementing the President’s Border Security and Immigration Enforcement Improvements

Policies” (“DHS Border Security Implementation Memo”),

https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-

Border-Security-Immigration-Enforcement-Improvement-Policies.pdf (last visited June 13,

2017), and “Enforcement of the Immigration Laws to Serve the National Interest” (“DHS

Immigration Enforcement Implementation Memo”),

https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-

Immigration-Laws-to-Serve-the-National-Interest.pdf (last visited June 13, 2017). Both memos

constitute guidance for “all Department personnel.” DHS Border Security Implementation

Memo at 1, DHS Immigration Enforcement Implementation Memo at 1.

82. DHS Secretary Kelly also stated that the Border Security EO itself “implements

new policies designed to stem illegal immigration and facilitate the detection, apprehension,

detention, and removal of aliens who have no lawful basis to enter or remain in the United

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States. It [the Border Security EO] constitutes guidance to all Department personnel, and

supersedes all existing conflicting policy . . . [subject to exceptions specified in the memo].”

DHS Border Security Implementation Memo at 1.

83. Notwithstanding Secretary Kelly’s admission that the Border Security EO was

agency-wide guidance and a change of policy, by establishing agency guidance and policy

through an executive order, the Defendants purportedly cloaked it and other executive orders on

immigration in secrecy and removed them from challenge under the APA. This is so

notwithstanding that DHS likely has seen and contributed to many of the draft executive orders

on immigration leaked to the public, as evidenced by DHS Secretary Kelly’s statements about

his role, and the role of his agency, in drafting and reviewing the Travel Ban Executive Order.

84. Further, notwithstanding Secretary Kelly’s characterization of the Border Security

EO as agency-wide guidance, which would make it subject to disclosure under the FOIA as an

agency record, by issuing that guidance in the guise of an executive order it and other executive

orders on immigration issued by President Trump and documents concerning their creation are

purportedly exempt from the FOIA and the APA.

85. The failure of the President, his staff, and the EOP to maintain and preserve

records as the PRA requires, and their hamstringing of federal agencies from preserving and

maintaining records under the FRA, and issuing guidance under the APA, has produced an

actual, tangible, and irreversible harm.

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PLAINTIFFS’ CLAIMS FOR RELIEF

CLAIM ONE

(For a Declaratory Judgment that the Knowing Use by Defendants of Messaging Apps that Prevent the Preservation of Presidential Records Violates the Presidential Records Act)

86. Plaintiffs re-allege and incorporate by reference all preceding paragraphs above.

87. No matter its method of delivery, a message communicated from one user to

another exists for an amount of time, however fleeting. Even a Confide-generated message

appears for the second or seconds it takes for the reader to “wand” over the message, after which

it supposedly disappears “forever.” When “confidential” messaging apps like Confide and

Signal, developed for private use, are used by the President, his staff, and/or the EOP to conduct

presidential business, the records that these messaging apps create are subject to the requirements

of the PRA.1

88. As a form of “electronic messaging,” the use of third-party messaging apps like

Confide and Signal falls squarely within the 2014 amendments to the PRA, which Congress

enacted to cover precisely the types of electronic messaging that, on information and belief, the

President, his staff, and/or the EOP use to conduct the President’s constitutional, statutory,

official, or other duties.

89. Accordingly, the President under the PRA must take all necessary steps to assure

that his activities, deliberations, decisions, and policies, and those of his staff, that reflect the

President’s performance of his constitutional, statutory, or other official or ceremonial duties, are

adequately documented. See 44 U.S.C. § 2203(a).

1 Records created by the President, his staff, and/or the EOP when using “confidential” messaging apps like Confide and Signal to conduct business other than presidential business or for personal purposes are not subject to the requirements of the PRA and are not the subject of this suit. 29

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90. The PRA also requires that the President, his staff, and the EOP preserve and

maintain as presidential records those records they produce or receive when conducting activities

relating to, or affecting, how the President carries out his constitutional, statutory, and

ceremonial duties. See 44 U.S.C. § 2203(a).

91. Documenting presidential activities, without also imposing the incumbent duty to

preserve or maintain those same presidential records, would eviscerate the plain language and

congressional intent behind the PRA and its amendments. For example, the PRA’s restrictions

on access to information in a presidential record, 44 U.S.C. § 2204, only make sense if there is a

preceding duty to preserve and maintain presidential records.

92. The software and programming that created the Confide and Signal apps prevent

any reasoned consideration of whether a particular electronic message is a presidential record

that must be preserved. Indeed, the apps’ developers created these apps for private use to ensure

utmost privacy by destroying messages as soon as they are read.

93. Specifically, the source code and software supporting Signal and Confide delete

electronic messages after a recipient receives and reads the messages. The Signal functionality

allows for the user to set timers to delete messages, whether instantaneously or at some future

time. The Confide application summarily deletes messages once read. The source code and

software completely usurp all the critical record-keeping functions the PRA imposes on the

President, his staff, and the EOP including: (1) determining whether an electronic message

contains a presidential record; (2) segregating that presidential record from private records; (3)

controlling that presidential record; and (4) preserving and maintaining that presidential record.

94. The source code and software supporting Confide and Signal treat all electronic

messages produced or received by the President, his staff, and/or the EOP similarly, no matter

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their content. The source code and software supporting Confide and Signal do not determine

whether an electronic message contains a presidential record, do not segregate presidential

records from private records, do not adequately control the presidential record, and do not

preserve and maintain the presidential record as the PRA expressly requires. 44 U.S.C.

§ 2203(a)-(c).

95. The wholesale deletion of electronic messages sent or received with these

applications directly contravenes the PRA, which limits the ability of a President to dispose of or

destroy presidential records during his term of office. The President may do so only in limited

circumstances, and only after the Archivist comments on the proposed destruction. See 44

U.S.C. § 2203(b). First, a President may dispose of presidential records only if they no longer

have administrative, historical, informational, or evidentiary value. 44 U.S.C. § 2203(c).

Second, before destroying a presidential record, the President must solicit the views of the

Archivist in writing concerning the President’s proposed disposal or destruction of presidential

records. 44 U.S.C. § 2203(c)(1). Finally, the Archivist must inform the President that the

Archivist does not intend to request Congress’s views on the President’s proposed disposal or

destruction of presidential records. 44 U.S.C. § 2203(c)(2). Congress retained the right to advise

the Archivist on whether maintaining and preserving presidential records targeted for disposal or

destruction might be in Congress’s special interest, or in the public interest. 44 U.S.C. § 2203(e).

96. The Defendants’ use of these messaging apps, however, results in the wholesale

destruction of presidential records without following the statutorily prescribed steps a President

must take before deleting presidential records.

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97. The actions of the President, his staff, and the EOP demonstrate that at least as to

presidential records created by or received through applications like Confide and Signal, the

President has violated his non-discretionary duties under the PRA.

98. Plaintiffs are therefore entitled to relief in the form of a declaratory judgment that

President Trump, his staff, and the EOP have violated their non-discretionary statutory duties

under the PRA, 44 U.S.C. §§ 2201−2209, and that the President has violated his constitutional

obligation to take care that laws like the PRA be faithfully executed.

CLAIM TWO

(For a Declaratory Judgment that the Failure of the President, His Staff, and the EOP to Issue Guidelines Concerning the Use of Messaging Apps that Prevent Document Preservation Violates the Presidential Records Act)

99. Plaintiffs re-allege and incorporate by reference all preceding paragraphs above.

100. “Courts are accorded the power to review guidelines outlining what is, and what

is not, a ‘presidential record’ under the terms of the PRA. The PRA does not bestow on the

President the power to assert sweeping authority over whatever materials he chooses to designate

as presidential records without any possibility of judicial review.” Armstrong v. Exec. Office of

President, 1 F.3d 1274, 1290 (D.C. Cir. 1993) (“Armstrong II”); Citizens for Responsibility &

Ethics v. Cheney, 593 F. Supp. 2d 194, 217 (D.D.C. 2009).

101. Notwithstanding the reported use within the White House of third-party

messaging platforms in violation of the PRA, neither the President, nor his staff, nor the EOP

appear to have implemented or enforced any “guidelines” addressing presidential records that are

also electronic messages, including designating such communications from third-party electronic

messaging platforms as containing presidential records. Instead, the third-party electronic

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messaging platforms are making the “designation” decision for the Defendants by deleting all

communications regardless of content.

102. Plaintiffs are therefore entitled to relief in the form of a declaratory judgment that

President Trump, his staff, and the EOP have violated their non-discretionary statutory

responsibilities under the PRA by failing to implement guidelines that address whether a

documentary record is, in fact, a presidential record when it originates in electronic messages

that the Defendants receive and maintain in the course of conducting activities relating to or

having an effect on the President’s constitutional, statutory, or other official or ceremonial duties.

CLAIM THREE

(For a Writ of Mandamus and Injunctive Relief Compelling President Trump, His Staff, and the EO to Comply with Their Non-Discretionary Duties Under the PRA)

103. Plaintiffs re-allege and incorporate by reference all preceding paragraphs.

104. Mandamus relief is appropriate when a plaintiff has a clear right to relief, but no

other adequate remedy, and the defendant has a clear duty to act. See, e.g., United States ex rel.

McLennan v. Wilbur, 283 U.S. 414, 420 (1931); Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C.

Cir. 1996). “No separate waiver of sovereign immunity is required to seek a writ of mandamus

to compel an official to perform a duty required in his official capacity.” Fornaro v. James, 416

F.3d 63, 69 (D.C. Cir. 2005).

105. The PRA imposes on the President, his staff, and the EOP a non-discretionary

duty to segregate, preserve, and maintain, presidential records contained in electronic messages

that relate to the President’s exercise of his constitutional, statutory, other official, or ceremonial

duties. Moreover, while the President’s decision on whether to preserve a specific record may

not be subject to challenge under the PRA, not “all decisions made pursuant to the PRA are

immune from judicial review.” Armstrong II, 1 F.3d at 1293.

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106. Further, as the court found in Am. Historical Ass’n v. Peterson, a President’s

compliance with the PRA also may be evaluated against a President’s constitutional obligation to

take care that the laws, including the PRA, be faithfully executed. 876 F. Supp. 1300, 1320−21

(D.D.C. 1995).

107. The statute leaves the President no discretion to remove entire classes of

communications from the statute’s reach simply because of their method of communication. Yet

the Defendants have done just that by using messaging platforms like Confide and Signal that

destroy records before any determination can be made as to whether they should be preserved as

presidential records under the PRA. Secretly tape-recording conversations that are not preserved

also prevents this determination from being made.

108. Plaintiffs therefore are entitled to a writ of mandamus and injunctive relief

ordering the President, his staff, and the EOP to comply with their mandatory, non-discretionary

duties under the PRA, and the President’s obligations under the Take Care Clause.

CLAIM FOUR

(For a Declaratory Judgment that Defendants’ Use of the Executive Order Process to Remove Records and Rulemaking from the FRA and FOIA and the APA Is Contrary to Law and Violates the President’s Constitutional Obligation to Take Care to Faithfully Execute the Law)

109. Plaintiffs re-allege and incorporate by reference all preceding paragraphs.

110. The President, his staff, and/or the EOP have used executive orders to transform

what would otherwise be federal records into presidential records and cloak the entire process in

secrecy, seeking to evade the transparency and accountability sought by the FOIA, FRA, and

APA.

111. The Supreme Court has determined that agency rulemaking does not violate the

non-delegation doctrine so long as “Congress clearly delineates the general policy, the public

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agency which is to apply it, and the boundaries of this delegated authority.” Skinner v. Mid-

America Pipeline Co., 490 U.S. 212, 219 (1989) (quoting American Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946)). In this way, “[p]rivate rights are protected by access to the courts to

test the application of the policy in the light of these legislative declarations.” Id.

112. For example, in 6 U.S.C. § 236, Congress vested the secretary of DHS

exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of such Act [the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.], and of all other immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Secretary shall not have authority to alter or reverse the decision of consular officer to refuse a visa to an alien . . . .

113. The executive orders described herein and other similar executive orders, along

with the federal agency guidelines they impose, are “new policies” that “constitute guidance to

all Department personnel, and supersede[] all existing conflicting policy[.]” DHS Border

Security Implementation Memo at 1. But because these new policies and guidance were

imposed by executive orders, they were not subject to notice and comment under section 553 of

the APA, or judicial scrutiny under section 706 of the APA, as they otherwise would have been

had a federal agency issued them directly.

114. Further, by using executive orders to establish policies and guidance, Defendants

have attempted to classify any accompanying documentary materials as presidential records, not

federal records, and therefore as purportedly outside the reach of the FRA. See 44 U.S.C. §§

2201(2), 2202, 3301(a)(1). As a necessary consequence, the documents also are purportedly not

subject to disclosure under the FOIA. See 44 U.S.C. § 2204(b).

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115. This misuse of the executive order process contravenes a central purpose of the

PRA: “‘defining the types of documentary materials falling within the ambit of either

‘presidential’ or ‘personal’ records[.]’” Am. Historical Ass’n v. Peterson, 876 F. Supp. 1300,

1315 (D.D.C. 1995) (quoting H.R. No. 95-1487, 95th Cong., 2d Sess. § 11 (1978)). Under

Armstrong II, the process of categorizing presidential records is subject to judicial review.

Armstrong II, 1 F.3d at 1290.

116. On information and belief, the Defendants have appropriated certain levels of

decision-making and rulemaking from the federal agencies charged with implementing policies

through agency regulations and other guidance and placed them in the White House subject to

the exclusive control of the President through executive orders.

117. By removing from agencies the process of issuing policies and guidance, the

Defendants have, in effect, blocked the federal agencies from complying with federal law and

policy, including the FRA, FOIA, and APA. The President, his staff, and the EOP have stripped

the rulemaking function from the relevant federal agencies, absorbing it into the EOP instead. In

this way, Defendants have subverted federal laws and violated a central premise of the

recordkeeping laws: that federal records not be folded into the PRA to avoid public disclosure.

118. The U.S. Court of Appeals for the D.C. Circuit has stated that the “narrow, clearly

defined limitation on the scope of the PRA is absolutely essential to preventing the PRA from

becoming a potential presidential carte blanche to shield materials from the reach of the FOIA.”

Armstrong II, 1 F.3d at 1292. Those words apply with particular force here, where the

Defendants, through their current practices in issuing executive orders, remove agency records

from the reach of the FOIA by not allowing agencies to create them at all. In so doing, the

President has nullified the ability of federal agencies to carry out their congressionally assigned

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role to preserve federal records under the FRA, thereby violating his constitutional obligations

under the Take Care Clause.

119. By shielding these records from public view and access, the Defendants have

deprived Plaintiffs and the public, particularly persons directly affected by federal agency actions

implementing the President’s executive orders—including acts of DHS in implementing

immigration-related orders—of access to records needed to protect their legal and financial

rights. See Am. Friends Service Comm. v. Webster, 720 F.2d 29, 43-45 (D.C. Cir. 1983).

120. Plaintiffs therefore are entitled to a declaratory judgment that the Defendants’

interference with the obligations that the FRA, FOIA, and APA impose on federal agencies is

contrary to law and violates the President’s constitutional obligation to take care that the law be

faithfully executed.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs respectfully request that this Court:

1. Declare that the Defendants’ knowing use of messaging apps that prevent the

preservation of presidential records violates the Presidential Records Act;

2. Declare that the Defendants’ failure to issue guidelines concerning the use of

messaging apps that prevent document preservation violates the Presidential Records Act;

3. Order all Defendants, in the form of injunctive and mandamus relief, to refrain

from using methods of communication that destroy records before any determination can be

made as to whether they should be preserved as presidential records under the Presidential

Records Act;

4. Declare that the Defendants’ use of the executive order process to remove records

from the Federal Records Act and public access under the Freedom of Information Act, and the

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rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s

constitutional obligation to take care that the law be faithfully executed; and

5. Grant such other and further relief as the Court may deem just and proper.

Dated: June 22, 2017

Respectfully Submitted,

BAKER & McKENZIE LLP

/s/ George M. Clarke III______George M. Clarke III, D.C. Bar No. 480073 Mireille R. Oldak, D.C. Bar No. 1027998 815 Connecticut Avenue, N.W. Washington, D.C. 20006 Phone: (202) 835-6184 Fax: (202) 416-7184 Email: [email protected] Email: [email protected]

Angela C. Vigil 1111 Brickell Avenue, Suite 1700 Miami, Florida 33131 Phone (305) 789-8904 Fax: (305) 789- 8953 Email: [email protected]

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

Anne L. Weismann, D.C. Bar No. 298190 Conor M. Shaw, D.C. Bar No. 1032074 455 Massachusetts Ave., N.W., Sixth Floor Washington, D.C. 20001 Phone: (202) 408-5565 Email: [email protected] Email: [email protected]

JA044 Case 1:17-cv-01228-CRC Document 11 Filed 10/06/17 Page 1 of 47 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 47 of 269

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and NATIONAL SECURITY ARCHIVE,

Plaintiffs, Case No. 1:17-CV-01228 Hon. Christopher R. Cooper v.

THE HON. DONALD J. TRUMP, President of the United States of America, and EXECUTIVE OFFICE OF THE PRESIDENT,

Defendants.

MOTION TO DISMISS

Defendants Donald J. Trump, President of the United States, and the Executive Office of

the President, by and through undersigned counsel, respectfully move to dismiss this case pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). As explained in the accompanying

memorandum of law, this suit suffers from a panoply of jurisdictional and other threshold

problems, including that Plaintiffs lack standing; that review of Defendants’ compliance with the

Presidential Records Act is precluded; and that Plaintiffs have otherwise failed to plead viable

causes of action. A proposed order is attached.

Dated: October 6, 2017 Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

JESSIE K. LIU U.S. Attorney for the District of Columbia

ELIZABETH J. SHAPIRO

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Deputy Director, Federal Programs Branch

/s/ Steven A. Myers STEVEN A. MYERS (NY Bar No. 4823043) Trial Attorney Federal Programs Branch U.S. Department of Justice, Civil Division Telephone: (202) 305-8648 Fax: (202) 616-8460 Email: [email protected]

Mailing Address: Post Office Box 883 Washington, DC 20044

Courier Address: 20 Massachusetts Ave., NW Rm. 7334 Washington, DC 20001

Counsel for Defendants

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and NATIONAL SECURITY ARCHIVE,

Plaintiffs, Case No. 1:17-CV-01228 Hon. Christopher R. Cooper v.

THE HON. DONALD J. TRUMP, President of the United States of America, and EXECUTIVE OFFICE OF THE PRESIDENT,

Defendants.

DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... iv INTRODUCTION ...... 1 BACKGROUND ...... 3 I. Plaintiffs’ Allegations...... 3 II. Legal Framework Governing Executive Branch Records ...... 4 A. The Federal Records Act ...... 5 B. The Presidential Records Act...... 7 STANDARD OF REVIEW ...... 7 ARGUMENT ...... 8 I. The Court Should Dismiss This Case For Lack Of Standing Because Plaintiffs Have Failed To Plead Certainly Impending Future Injury...... 8 II. The Court Should Dismiss Claims One, Two, And Three Because The Presidential Records Act Precludes Judicial Review...... 11 A. Judicial Review Of Defendants’ Compliance With The PRA Is Precluded Under The D.C. Circuit’s Decision In Armstrong I...... 12 B. Post-Armstrong I Authority Does Not Counsel A Different Result...... 13 1. Armstrong II ...... 13 2. Post-Armstrong District Court Decisions ...... 15 III. The Court Should Dismiss Claims One, Two, And Four Because They Inappropriately Invoke The Declaratory Judgment Act, Which Does Not Create A Cause Of Action...... 20 IV. Claim Three Should Be Dismissed Because Plaintiffs Do Not Satisfy The Demanding Standard For Mandamus Relief...... 21 A. Plaintiffs Do Not Allege That The Defendants Have Failed To Comply With Ministerial, Nondiscretionary Duties Owed To Them...... 23 B. Entering A Writ Of Mandamus Against The President Would Raise Extraordinary Separation Of Powers Concerns...... 27 C. Plaintiffs’ Constitutional Take Care Claims Fare No Better...... 28 V. Claim Four Should Be Dismissed Because Plaintiffs Have No Basis For Challenging The President’s Use Of Executive Orders...... 30 A. Claim Four Is Inadequately Pleaded Because It Fails To Identify Specific Executive Orders That Are Allegedly Unlawful...... 30 B. Plaintiffs Cannot Proceed Under FOIA Because They Have Not Submitted A Particular FOIA Request, And Because FOIA Does Not Obligate Agencies To Create Or Obtain Documents That They Do Not Have...... 31 ii

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C. Plaintiffs Cannot Proceed Under The APA Because They Are Not Challenging A Particular Final Agency Action, Nor Have They Sued An Agency...... 33 D. Plaintiffs Cannot Proceed Under The FRA ...... 34 CONCLUSION ...... 36

iii

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TABLE OF AUTHORITIES

CASES PAGE(S)

*Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) ...... 2, 20, 21

Am. Chemistry Council, Inc. v. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56 (D.D.C. 2013) ...... 33

Am. Historical Ass’n v. NARA, 402 F. Supp. 2d 171 (D.D.C. 2005) ...... 11

*Am. Historical Ass’n v. NARA, 310 F. Supp. 2d 216 (D.D.C. 2004) ...... 11

Am. Historical Ass’n v. Peterson, 876 F. Supp. 1300 (D.D.C. 1995) ...... 19, 28

*Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) ...... passim

Armstrong v. Bush, 139 F.R.D. 547 (D.D.C. 1991) ...... 13

*Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993) ...... passim

*Armstrong v. Exec. Office of the President, 90 F.3d 553 (D.C. Cir. 1996) ...... 18

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) ...... 9

*Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...... 8, 30

Baker v. Carr, 369 U.S. 186 (1962) ...... 29

*Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...... 8, 13, 14, 30

Bridges v. Blue Cross & Blue Shield Ass’n, 935 F. Supp. 37 (D.D.C. 1996) ...... 21

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C&E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197 (D.C. Cir. 2002) ...... 20, 21

Calhoun v. U.S. Dep’t of Justice, 693 F. Supp. 2d 89 (D.D.C. 2010) ...... 32

*Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ...... 1, 9

Columbia Power Trades Council v. Dep’t of Energy, 671 F.2d 325 (9th Cir. 1982) ...... 22

Conservation Force, Inc. v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013) ...... 9

Citizens for Responsibility & Ethics in Wash. v. Cheney, 593 F. Supp. 2d 194 (D.D.C. 2009) ...... passim

*Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 101 (D.D.C. 2007) ...... 2, 9, 10, 35

Citizens for Responsibility & Ethics in Wash. v. Exec. Office of the Pres., 587 F. Supp. 2d 48 (D.D.C. 2008) ...... 15

Ctr. for Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d 466 (D.C. Cir. 2009) ...... 9

*Dalton v. Spencer, 511 U.S. 462 (1994) ...... 28, 29

Detroit Int’l Bridge Co. v. Gov’t of Canada, 133 F. Supp. 3d 70 (D.D.C. 2015) ...... 21

Doe v. U.S. Parole Comm’n, 602 F. App’x 530 (D.C. Cir. 2015) ...... 21

Edmonds Inst. v. Dep’t of the Interior, 383 F. Supp. 2d 105 (D.D.C. 2005) ...... 33

Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 795 F. Supp. 2d 85 (D.D.C. 2011) ...... 33

Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, --- F. Supp. 3d ----, 2017 WL 3141907 (D.D.C. July 24, 2017) ...... 34

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Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503 (4th Cir. 1999) ...... 22

Feinman v. FBI, 713 F. Supp. 2d 70 (D.D.C. 2010) ...... 33

Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) ...... 9

Forsham v. Harris, 445 U.S. 169 (1980) ...... 32

Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31 (D.D.C. 2016) ...... 21

In re Blackwater Sec. Consulting, LLC, 460 F.3d 576 (4th Cir. 2006) ...... 22

*In re Cheney, 406 F. 3d 723 (D.C. Cir. 2005) ...... 23

Int’l Counsel Bureau v. CIA, No. 09-2269 (JDB), 2010 WL 1410561 (D.D.C. Apr. 2, 2010) ...... 25

Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101 (D.D.C. 2013) ...... 21

*Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012) ...... 13, 15, 20, 24

Kenney v. Dep’t of Justice, 603 F. Supp. 2d 184 (D.D.C. 2009) ...... 33

*Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ...... passim

*Los Angeles v. Lyons, 461 U.S. 95 (1983) ...... 9

*Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 8, 9, 11, 29

Malek v. Flagstar Bank, 70 F. Supp. 3d 23 (D.D.C. 2014) ...... 21

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Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)...... 25, 26

Mero v. City Segway Tours of Wash. D.C., LLC, 726 F. Supp. 2d 100 (D.D.C. 2011) ...... 31

Metz v. BAE Sys. Tech. Solutions & Servs. Inc., 774 F.3d 18 (D.C. Cir. 2014) ...... 21

*Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) ...... 27

Mohamed v. Select Portfolio Servicing, Inc., 215 F. Supp. 3d 85 (D.D.C. 2016) ...... 21

Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) ...... 6

N. Mariana Islands v. United States, 686 F. Supp. 2d 7 (D.D.C. 2009) ...... 34

*Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77 (D.D.C. 2013) ...... 2, 10, 11

*Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) ...... 27

*Nixon v. United States, 506 U.S. 224 (1993) ...... 29

PDK Labs, Inc. v. Reno, 134 F. Supp. 2d 24 (D.D.C. 2001) ...... 23

People for the Am. Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284 (D.D.C. 2007) ...... 33

Physicians Comm. for Responsible Med. v. Dep’t of Health & Human Servs., 480 F. Supp. 2d 119 (D.D.C. 2007) ...... 33

Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015) ...... 6

*Quick v. Dep’t of Commerce, 775 F. Supp. 2d 174 (D.D.C. 2011) ...... 11

vii

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Renne v. Geary, 501 U.S. 312 (1991) ...... 8

Ross v. United States, 460 F. Supp. 2d 139 (D.D.C. 2006) ...... 22

Schilling v. Rogers, 363 U.S. 666 (1960) ...... 20

Seized Prop. Recovery, Corp. v. U.S. Customs & Border Prot., 502 F. Supp. 2d 50 (D.D.C. 2007) ...... 21

Sierra Club v. Dep’t of the Interior, 384 F. Supp. 2d 1 (D.D.C. 2004) ...... 33

Sieverding v. U.S. Dep’t of Justice, 847 F. Supp. 75 (D.D.C. 2012) ...... 31

Superlease Rent-A-Car, Inc. v. Budget Rent- A-Car of Md., No. CIV. A. 89-0300 (RCL), 1989 WL 39393 (D.D.C. Apr. 13, 1989)...... 21

*Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ...... 23, 27

Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) ...... 11, 32

Tyree v. Hope Village, Inc., 677 F. Supp. 2d 109 (D.D.C. 2009) ...... 32, 33

*United States v. Espy, 145 F.3d 1369 (D.C. Cir. 1998) ...... 25, 28

United States v. Instruments, S.A., 807 F. Supp. 811 (D.D.C. 1992) ...... 21

*United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973) ...... 9

UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62 (D.D.C. 2011) ...... 33, 34

Walpin v. Corp. for Nat’l & Cmty. Serv., 718 F. Supp. 2d 18 (D.D.C. 2010) ...... 21

viii

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Warth v. Seldin, 422 U.S. 490 (1975) ...... 9

Webster v. Doe, 486 U.S. 592 (1988) ...... 23, 24

West v. Jackson, 448 F. Supp. 2d 207 (D.D.C. 2006) ...... 32

Whitmore v. Arkansas, 495 U.S. 149 (1990) ...... 9, 10

Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163 (D.D.C. 2007) ...... 8

CONSTITUTIONAL PROVISIONS

U.S. Const. art. II, sec. 3 ...... 22, 28 *U.S. Const. art. III, sec. 2 ...... 8

STATUTES

5 U.S.C. § 552 ...... passim 5 U.S.C. § 553 ...... 33 5 U.S.C. § 704 ...... 33 5 U.S.C. § 706 ...... 33 28 U.S.C. § 1361 ...... 25, 26 28 U.S.C. § 2201 ...... 20 44 U.S.C. § 2201 ...... 4 44 U.S.C. § 2203 ...... passim 44 U.S.C. § 2905 ...... 6 44 U.S.C. § 3101 ...... 5, 34 44 U.S.C. § 3105 ...... 5 44 U.S.C. § 3106 ...... 6, 34 44 U.S.C. § 3301 ...... 4 Pub. L. No. 87-748, 76 Stat. 744 (1962) ...... 26

RULES

*Fed. R. Civ. P. 8 ...... 30

LEGISLATIVE MATERIALS

*108 Cong. Rec. 20,079 (1962) ...... 26 *S. Rep. No. 87-1992 (1962) ...... 26

* The authorities on which we principally rely are marked with asterisks.

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INTRODUCTION

Courts cannot review the President’s compliance with the Presidential Records Act

(“PRA”). As the D.C. Circuit has squarely held, “permitting judicial review of the President’s

compliance with the PRA would upset the intricate statutory scheme Congress carefully drafted to

keep in equipoise important competing political and constitutional concerns.” Armstrong v. Bush,

924 F.2d 282, 290 (D.C. Cir. 1991) (“Armstrong I”). Indeed, “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.” Id. At bottom, “[a]llowing

judicial review of the President’s general compliance with the PRA at the behest of private litigants

would substantially upset Congress’ carefully crafted balance of presidential control of records

creation, management, and disposal during the President’s term of office.” Id. at 291.

Flying headlong into this binding case law, Plaintiffs Citizens for Responsibility and Ethics

in Washington (“CREW”) and the National Security Archive (“NSA”) have brought suit,

demanding that this Court declare that Defendants have failed to heed the requirements of the PRA

and asking the Court to enter a writ of mandamus against the President. Their claims fail on

numerous grounds, such that this case should be dismissed.

At the outset, Plaintiffs lack standing. Plaintiffs seek exclusively declaratory and

injunctive relief, which means that they must demonstrate an imminent risk of future injury that is

traceable to Defendants’ actions and redressable by an order from this Court. See, e.g., Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Plaintiffs nebulously allege that they are frequent

requesters under the Freedom of Information Act (“FOIA”), see ECF No. 1 (“Compl.”) ¶¶ 9-12,

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but they do not allege any specific intent to submit particular requests for any particular records.

As this court has held, that is insufficient to demonstrate standing. See, e.g., Citizens for

Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec. (“CREW v. DHS”), 527 F. Supp.

2d 101, 106 (D.D.C. 2007); Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 93-94 (D.D.C.

2013).

Even if Plaintiffs had standing, the vast majority of their claims are precluded by the PRA.

As noted above, the D.C. Circuit held in Armstrong I 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, see Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1294 (D.C. Cir.

1993) (“Armstrong II”), 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.

Second, most of Plaintiffs’ claims seek free-floating declaratory relief under the

Declaratory Judgement Act, without pleading a cause of action sufficient to get them into federal

court in the first place. As the D.C. Circuit has explained, the Declaratory Judgment Act

“presupposes the existence of a judicially remediable right” and “does not create a cause of action.”

Ali v. Rumsfeld, 649 F.3d 762, 777-78 (D.C. Cir. 2011). Plaintiffs’ claims seeking purely

declaratory relief should therefore be dismissed. Claim three, the sole claim seeking mandamus

relief, should additionally be dismissed because Plaintiffs have not satisfied the demanding

standards for mandamus, and because entering a writ of mandamus against the President of the

United States would raise extraordinary separation of powers concerns. Finally, claim four, which

alleges that the President’s use of executive orders is precluding unnamed federal agencies from

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complying with various statutory obligations, fails for a host of additional reasons set out more

fully below.

BACKGROUND

I. Plaintiffs’ Allegations

Plaintiffs commenced this action by filing a complaint on June 22, 2017. See Compl.

Plaintiffs’ relevant allegations generally fall into two categories. First, Plaintiffs allege that “White

House staff . . . use certain email messaging applications that destroy the contents of messages as

soon as they are read, without regard to whether the messages are presidential records.” Id. ¶ 4;

see also id. ¶¶ 50-64.1 Second, Plaintiffs allege that “Defendants have centralized much of the

governmental decision-making within the White House,” such that “decisions normally made or

implemented by Executive Branch agencies evade disclosure under laws like FOIA, preservation

under laws like the FRA [Federal Records Act], and public review and comment under the APA

[Administrative Procedure Act].” Id. ¶ 5; see also id. ¶¶ 72-85.

Based on these allegations, Plaintiffs have pleaded four claims for relief:

• Claim one seeks a declaratory judgment that “knowing use by Defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act.” Compl. Claim One (capitalization modified).

• Claim two seeks a declaratory judgment “that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act.” Id. Claim Two (capitalization modified).

1 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,” Compl. ¶¶ 4, 66-69, that the President might be deleting tape recordings of conversations with administration officials, id. ¶¶ 4, 65, and that White House aides might “purge” their phones of “potentially compromising information” in response to FBI and congressional investigations, id. 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. 3

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• Claim three seeks a writ of mandamus and an injunction “compelling President Trump, his staff, and the EO[P] to comply with their non-discretionary duties under the PRA.” Id. Claim Three (capitalization modified).

• Claim four seeks a declaratory judgment that “Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law.” Id. Claim Four (capitalization modified).

II. Legal Framework Governing Executive Branch Records

Executive branch records are governed by either the Federal Records Act (“FRA”) or the

PRA. As explained more fully below, “[t]he FRA and the PRA apply to distinct categories of

documentary materials.” Armstrong II, 1 F.3d at 1290. Specifically, the FRA defines the records

governed by that statute as:

all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation 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 or because of the informational value of data in them.

44 U.S.C. § 3301(a)(1)(A) (emphasis added). The PRA, in turn, defines presidential records as:

documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, 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).2 The PRA makes clear, however, that the definition of Presidential records

does not include “any documentary materials that are (i) official records of an agency (as defined

in” FOIA. Id. § 2201(2)(B). And while FOIA includes the “Executive Office of the President” in

2 The Executive Office of the President includes certain offices whose sole function is to advise and assist the President — such as the White House Office and the National Security Council — as well as offices that have separate statutory responsibilities, such as the Office of Management and Budget and the Office of National Drug Control Policy. 4

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its definition of agency, see 5 U.S.C. § 552(f)(1), the Supreme Court has made clear that this

definition of agency excludes the President, “the President’s immediate personal staff or units in

the Executive Office whose sole function is to advise and assist the President.” Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980).

The upshot of these interlocking statutory provisions is that records created or received by

most federal agencies — Cabinet departments, independent agencies, etc. — are subject to the

FRA and FOIA, as are records generated by those components of the Executive Office of the

President that have statutory responsibilities other than advising and assisting the President. See

Compl. ¶ 14. Records created or received by the President and his closest advisors, in turn, are

governed by the PRA. As described below, these two regimes create very different records

management (and public access) systems, reflecting the care that Congress took to avoid

encroaching upon the President’s authority to manage his own records during his term in office.

A. The Federal Records Act

“Federal agencies’ records creation, management, and disposal duties are set out in a

collection of statutes known collectively as the Federal Records Act.” Armstrong II, 1 F.3d at

1278. Under the FRA, “[t]he head of each Federal agency shall make and preserve records

containing adequate and proper documentation of the organization, functions, policies, decisions,

procedures, and essential transactions of the agency and designed to furnish the information

necessary to protect the legal and financial rights of the Government and of persons directly

affected by the agency’s activities.” 44 U.S.C. § 3101. The statute further provides, among other

things, that agency heads must “establish safeguards against the removal or loss of records the

head of such agency determines to be necessary and required by regulations of the Archivist.”

Id. § 3105; see generally Armstrong II, 1 F.3d at 1278-79 (providing overview of FRA).

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The FRA states that “[t]he head of each Federal agency shall notify the Archivist” if the

agency head becomes aware of the unlawful removal or destruction of records, “and with the

assistance of the Archivist shall initiate action through the Attorney General for the recovery of

records the head of the Federal agency knows or has reason to believe have been unlawfully

removed from that agency.” 44 U.S.C. § 3106(a); see also id. § 2905 (requiring Archivist to notify

the agency head of unlawful removal or destruction of records and to assist the agency head in

initiating action through the Attorney General). If the agency head “does not initiate an action for

such recovery or other redress within a reasonable period of time . . . , or is participating in, or

believed to be participating in any such unlawful action, the Archivist shall request the Attorney

General to initiate such an action, and shall notify Congress when such a request has been made.”

Id. § 3106(b).

Records of executive branch agencies subject to the FRA are generally subject to FOIA,

which allows individuals to request the disclosure of records. See 5 U.S.C. § 552(a)(3). Upon

receipt of a request that “reasonably describes” the records being sought, id. § 552(a)(3)(A), an

agency must typically “conduct[] a search reasonably calculated to uncover all relevant

documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (citation omitted). The agency

is generally required to disclose any responsive records, except to the extent that such records are

protected from disclosure by one of FOIA’s statutory exemptions. See 5 U.S.C. § 552(b); Prison

Legal News v. Samuels, 787 F.3d 1142, 1146 (D.C. Cir. 2015).

In the event that an agency withholds responsive records from the requester, the requester

may, after exhausting administrative remedies, file a lawsuit in district court challenging the

agency’s withholdings. See id. § 552(a)(4)(B) (stating that the court may “enjoin the agency from

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withholding agency records and to order the production of any agency records improperly withheld

from the complainant”).

B. The Presidential Records Act

Under the PRA, the President is directed to 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 constitutional, statutory or other official or ceremonial duties are adequately

documented and that such records are maintained as Presidential records pursuant to the

requirements of this section and other provisions of law.” 44 U.S.C. § 2203(a). During the

President’s term in office, the President is generally precluded from disposing of presidential

records unless he determines that the records “no longer have administrative, historical,

informational, or evidentiary value” and obtains the written views of the Archivist of the United

States. Id. § 2203(c). The Archivist “may notify Congress of the President’s intent to dispose of

the records,” but “[t]he PRA gives neither the Archivist nor Congress the authority to veto the

President’s decision to destroy the records.” Armstrong I, 924 F.2d at 286. Rather, “the PRA

accords the President virtually complete control over his records during his term of office.” Id. at

290.

As noted above, FOIA does not, by its own terms, apply to Presidential records while the

President is in office. Pursuant to the PRA, however, Presidential records become subject to public

request under FOIA five years following the President’s final term in office, see 44 U.S.C.

§ 2204(b)(2), though the President may designate certain records as exempt from FOIA for a

period of twelve years, see id. § 2204(a).

STANDARD OF REVIEW

Defendants move to dismiss (1) under Federal Rule of Civil Procedure 12(b)(1), on the

grounds that the Court lacks subject matter jurisdiction both because Plaintiffs lack standing and

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because judicial review is precluded, and (2) under Rule 12(b)(6), on the ground that Plaintiffs fail

to state a claim upon which relief may be granted.

When a defendant files a motion under Rule 12(b)(1), the plaintiff bears the burden of

demonstrating the existence of subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992). Courts should “presume that [they] lack jurisdiction unless the contrary

appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991) (citations

omitted). “Although a court must accept as true all the factual allegations contained in the

complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual allegations

in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a

12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp.

2d 163, 170 (D.D.C. 2007) (citations omitted).

In order to withstand a motion to dismiss under Rule 12(b)(6), a complaint must contain

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must “state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 570). The plaintiff must, accordingly, plead facts that allow the court “to

draw the reasonable inference that the defendant is liable for the misconduct alleged” and offer

“more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

ARGUMENT

I. The Court Should Dismiss This Case For Lack Of Standing Because Plaintiffs Have Failed To Plead Certainly Impending Future Injury.

At the outset, the Court should dismiss this case because Plaintiffs have failed to plead

facts sufficient to establish their standing. It is axiomatic that the subject matter jurisdiction of

Article III courts extends only to “cases” and “controversies.” U.S. Const. art. III, sec. 2; accord,

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e.g., Ctr. for Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d 466, 475 (D.C. Cir. 2009).

Article III’s narrow limits on federal court jurisdiction are “founded in concern about the proper

— and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 422 U.S.

490, 498 (1975). Accordingly, Plaintiffs must show they have standing as a “predicate to any

exercise of [this Court’s] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.

Cir. 1996).

“The ‘irreducible constitutional minimum’ of standing contains three elements: (1) injury-

in-fact, (2) causation, and (3) redressability.” Conservation Force, Inc. v. Jewell, 733 F.3d 1200,

1207 (D.C. Cir. 2013) (quoting Lujan, 504 U.S. at 560-61). “When a party seeks prospective

relief, such as a declaratory order invalidating an agency policy, it must show that it is likely to

suffer a future injury.” CREW v. DHS, 527 F. Supp. 2d at 105 (citing Los Angeles v. Lyons, 461

U.S. 95, 109 (1983)); accord, e.g., Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (“[B]ecause

Sheriff Arpaio seeks prospective declaratory and injunctive relief, he must establish an ongoing or

future injury that is ‘certainly impending’; he may not rest on past injury.” (quoting Clapper, 568

U.S. at 409)).

The Supreme Court has “repeatedly reiterated that threatened injury must be certainly

impending to constitute injury in fact, and that allegations of possible future injury are not

sufficient.” Clapper, 568 U.S. at 409 (alteration omitted). In other words, a “plaintiff must allege

that he . . . will in fact be perceptibly harmed by the challenged agency action, not that he can

imagine circumstances in which he could be affected by the agency’s action.” United States v.

Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89 (1973). The

actual injury must be “concrete in both a qualitative and temporal sense.” Whitmore v. Arkansas,

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495 U.S. 149, 155 (1990). It must be “distinct and palpable” and “actual or imminent,” not

“conjectural” or “hypothetical.” Id. (citations omitted).

In an attempt to satisfy these standards, CREW alleges that it “uses the FOIA to obtain

information about the government” and “has a significant interest in accessing historical

presidential records in a timely fashion, including the records of the current Administration when

they become available for public review.” Compl. ¶ 9. CREW further alleges that it “has filed

nearly 100 FOIA requests since the start” of the current administration, though it provides no

information about these requests. Id. ¶ 10. The National Security Archive, in turn, merely alleges

that it “is one of the leading non-profit users of the FOIA,” id. ¶ 11; it says nothing about either its

pending FOIA requests or any FOIA requests that it plans to file in the future.

These allegations are woefully inadequate. Neither CREW nor the National Security

Archive has actually alleged that they intend to submit FOIA requests for the President’s records

once those records become subject to public release under FOIA. They certainly have not alleged

a specific intent to submit a particular FOIA request, which is what the law demands. See, e.g.,

CREW v. DHS, 527 F. Supp. 2d at 106 (on motion to dismiss) (“CREW does not allege anywhere

in its complaint or opposition brief that it has a FOIA request pending with the DHS or that it

intends to file a specific FOIA request with the DHS for WAVES records in the near future.

Without this information, the Court cannot say that the alleged future injury is either real or

imminent. That CREW may one day file another FOIA request with the DHS does not represent

a cognizable, palpable injury which presents a case or controversy for the Court to consider.”);

Nat’l Sec. Counselors, 931 F. Supp. 2d at 93-94 (on motion to dismiss) (“[G]eneral statements

about a regular course of conduct and an expressed intention to continue to do so in the future do

not establish the same concrete likelihood of injury that emanates from allegations of specific,

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pending FOIA requests that are likely to be subject to an agency’s challenged policies.”); Am.

Historical Ass’n v. NARA, 310 F. Supp. 2d 216, 228 (D.D.C. 2004) (on motion to dismiss)

(notwithstanding “a significant likelihood that Plaintiffs will again seek access to presidential

records, and face indeterminate delays in accessing them . . . the Court cannot find that this future

injury is sufficiently imminent, and not conjectural and hypothetical”);3 Quick v. Dep’t of

Commerce, 775 F. Supp. 2d 174, 187 (D.D.C. 2011) (“[T]o the extent Quick seeks to establish his

standing to pursue his ‘pattern or practice’ claim by his passing allegation that he ‘plans to file

additional FOIA requests to the NIST in the future,’ the Supreme Court has foreclosed that route.”

(citing Lujan, 504 U.S. at 564)). Because Plaintiffs do not allege that they plan to submit specific

FOIA requests for specific Presidential records (or categories of records), they have failed to plead

facts sufficient to demonstrate their standing.

With respect to claim four, which concerns records that Plaintiffs believe should be

available for request under FOIA now, Plaintiffs fail to identify any particular records, or any

specific category of records, to which they believe they are entitled — let alone that they have

actually requested. If there are any records to which Plaintiffs believe they are entitled, of course,

the appropriate remedy is for Plaintiffs to request them under the FOIA, which they have not done.

See Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997); see infra Part V.B.

II. The Court Should Dismiss Claims One, Two, And Three Because The Presidential Records Act Precludes Judicial Review.

In claims one, two, and three, Plaintiffs seek to privately enforce the PRA: Claim one

seeks a declaratory judgment that Defendants’ use of certain messaging applications violates the

PRA; claim two seeks a declaratory judgment that Defendants’ alleged failure to issue guidelines

3 Following the order dismissing the case in American Historical Association, the plaintiffs submitted additional facts and the Court reconsidered its decision. See Am. Historical Ass’n v. Nat’l Archives & Records Admin., 402 F. Supp. 2d 171, 179 (D.D.C. 2005). 11

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concerning such applications violates the PRA; and claim three seeks a writ of mandamus

requiring Defendants to manage their records in compliance with the PRA. The D.C. Circuit,

however, has already held that “the PRA is one of the rare statutes that does impliedly preclude

judicial review.” Armstrong I, 924 F.2d at 290. Indeed, the type of review that the D.C. Circuit

rejected in that case — “judicial review of the President’s general compliance with the PRA at the

behest of private litigants” — is precisely what Plaintiffs demand from this Court. Id. at 291.

Because such review is precluded, claims one, two, and three must be dismissed.

A. Judicial Review Of Defendants’ Compliance With The PRA Is Precluded Under The D.C. Circuit’s Decision In Armstrong I.

The D.C. Circuit’s Armstrong decisions arose from a lawsuit alleging that then-Presidents

Ronald Reagan and George H.W. Bush, among other defendants, “intend[ed] to delete material

from the White House computer systems in violation of the FRA and PRA.” Armstrong I, 924

F.2d at 286. Specifically, the Armstrong plaintiffs sought access to emails that were stored on the

National Security Council’s (“NSC’s”) computers during the Reagan administration. The

plaintiffs sought “a declaration that many of the documents stored in [an electronic messaging]

system at the close of the [Reagan] Administration are federal and presidential records,” as well

as “an injunction prohibiting the destruction of these documents.” Id. at 287.

The D.C. Circuit held that that the PRA precluded judicial review of the plaintiffs’ claims.

As it explained, “permitting judicial review of the President’s compliance with the PRA would

upset the intricate statutory scheme Congress carefully drafted to keep in equipoise important

competing political and constitutional questions.” Armstrong I, 924 F.2d at 290. It therefore

explained that “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 record management practices or overrule

his records creation, management, and disposal decisions.” Id. Because “[a]llowing judicial

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review of the President’s general compliance with the PRA at the behest of private litigants would

substantially upset Congress’ carefully crafted balance of presidential control of records creation,

management, and disposal during the President’s term of office,” the Court “h[e]ld that the PRA

precludes judicial review of the President’s recordkeeping practices and decisions.” Id. at 291.

Claims one, two, and three each seek “judicial review of the President’s recordkeeping

practices and decisions,” Armstrong I, 924 F.2d at 291: Claim one seeks a declaratory judgment

that Defendants are improperly disposing of presidential records; claim two seeks a declaratory

judgment that Defendants have failed to issue guidelines prohibiting such unlawful disposal, and

claim three seeks a writ of mandamus compelling the President to manage his records in

compliance with the PRA. Under Armstrong I, these claims are precluded and must be dismissed.

B. Post-Armstrong I Authority Does Not Counsel A Different Result.

Since the D.C. Circuit’s decision in Armstrong I, certain decisions have issued that permit

review of decisions touching on PRA-related issues, including the D.C. Circuit’s decision in

Armstrong II. While Plaintiffs have signaled that they will invoke these decisions in an attempt to

avoid the straightforward holding of Armstrong I, see Compl. ¶ 105 (“[N]ot ‘all decisions made

pursuant to the PRA are immune from judicial review.’” (quoting Armstrong II, 1 F.3d at 1293)),

those decisions do not undermine the central holding of Armstrong I. As another Judge in this

District has observed with regard to Armstrong II, “the actual holding of the case is much more

narrow than this language that plaintiff recites.” Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d

288, 297 (D.D.C. 2012) (Jackson, A.B., J.). We begin by discussing Armstrong II and will then

turn to the district court decisions that have interpreted it.

1. Armstrong II

Following the remand in Armstrong I, the plaintiffs amended their complaint to omit all

claims seeking relief under the PRA. See Armstrong v. Bush, 139 F.R.D. 547, 550 (D.D.C. 1991).

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Instead, the plaintiffs pursued only their FRA- and FOIA-based claims — namely, their claims

that NSC’s guidelines defining “federal records” were inadequate because they “instruct NSC and

OSTP [Office of Science and Technology Policy] staff to treat as presidential records materials

that are, in fact, agency records subject to the FRA.” Armstrong II, 1 F.3d at 1290.

The D.C. Circuit explained that the “PRA does not bestow on the President the power to

assert sweeping authority over whatever materials he chooses to designate as presidential records

without any possibility of judicial review”; in that specific context, it said that “the courts are

accorded the power to review guidelines outlining what is, and what is not, a ‘presidential record.’”

Armstrong II, 1 F.3d at 1290. In other words, the Court held that when deciding FOIA claims, the

courts may review PRA guidelines to ensure that the President does not treat too many materials

as presidential records, thereby denying individuals access to them under FOIA: “Thus, the court

may review the EOP guidelines for the limited purpose of ensuring that they do not encompass

within their operational definition of presidential records materials properly subject to the FOIA.”

Id. (emphasis added). As the Court explained, “[t]his narrow, clearly defined limitation on the

scope of the PRA is absolutely essential to preventing the PRA from becoming a potential

presidential carte blanche to shield materials from the reach of the FOIA. . . . [I]f guidelines that

purport to implement the PRA were not reviewable for compliance with the statute’s definition of

presidential records, non-presidential materials that would otherwise be immediately subject to the

FOIA would be shielded from its provisions . . . .”. Id. at 1292-93.

Thus, while Armstrong II reaffirmed Armstrong I’s holding that “decisions that involve

materials that are truly presidential records are immune from judicial review,” id. at 1293, it

refused to permit the President to “designate any material he wishes as presidential records, and

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thereby exercise ‘virtually complete control’ over it, notwithstanding the fact that the material does

not meet the definition of ‘presidential records’ in the PRA.” Id. at 1293-94 (citations omitted).

The bottom line holding of Armstrong II was, therefore, that “courts may review guidelines

outlining what is, and what is not, a ‘presidential record’ to ensure that materials that are not

subject to the PRA are not treated as presidential records.” Id. at 1294 (emphasis added). Most

courts in this district have understood the limited scope of Armstrong II’s holding. See Judicial

Watch, 845 F. Supp. 2d at 297 (“Armstrong II was addressing a concern that too many records

were being classified as Presidential, not too few.”); Citizens for Responsibility & Ethics in Wash.

v. Exec. Office of the Pres., 587 F. Supp. 2d 48, 55 (D.D.C. 2008) (describing holding of Armstrong

II: the “PRA does allow limited review to assure that guidelines defining Presidential records do

not improperly sweep in nonpresidential records.”).

Armstrong II’s limited holding has no application to this case. Plaintiffs (who are not

pursuing FOIA or FRA claims) are not contending that Defendants have issued guidelines that

improperly treat materials that should be subject to FOIA or the FRA as presidential records;

rather, claims one, two, and three contend that the President is mismanaging and failing to preserve

what Plaintiffs assert are presidential records. See Compl. ¶ 87 n.1. Those claims are governed

by Armstrong I, not Armstrong II, and they are therefore barred from judicial review. See Judicial

Watch, 845 F. Supp. 2d at 297-98 (“[A] close reading of the Armstrong II decision suggests that

the limited judicial review authorized by the D.C. Circuit left untouched that portion of Armstrong

I that gave the President unfettered control over his own documents.”).

2. Post-Armstrong District Court Decisions

Notwithstanding the care that the D.C. Circuit took in Armstrong II to announce a narrowly

circumscribed holding, certain district court decisions have read it more broadly. Those decisions,

which do not bind this Court, are either incorrectly decided, distinguishable, or both. 15

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1. In Citizens for Responsibility & Ethics in Washington v. Cheney, 593 F. Supp. 2d

194 (D.D.C. 2009) (“CREW v. Cheney”), the plaintiffs alleged that Vice-President Cheney was

only treating certain of his Vice-Presidential records as subject the PRA, while wrongly classifying

others as personal. See 44 U.S.C. § 2203(b) (“Documentary materials . . . shall, to the extent

practicable, be categorized as Presidential records or personal records upon their creation or receipt

and be filed separately.”). Judge Kollar-Kotelly read the D.C. Circuit’s Armstrong cases as

establishing the following rule: “whether judicial review under the PRA was appropriate depended

on whether the plaintiffs sought review of the President’s ‘creation, management, and disposal

decisions’ (as to which judicial review was not available) or the President’s guidelines applied to

the initial classification of documents (as to which review was available).” CREW v. Cheney, 593

F. Supp. 2d at 214-15. The Court held that the plaintiffs’ claims did “not implicate Defendants’

‘recordkeeping practices,’” id. at 216, but instead focused on allegations that Defendants had

“adopted policies and guidelines that exclude from the reach of the PRA all but a narrow category

of [Vice-Presidential] records,” id. at 217. The Court held that “[t]hese allegations fall squarely

within the types of claims concerning ‘guidelines describing which existing materials will be

treated as presidential records’ that are subject to judicial review.” Id. (quoting Armstrong II, 1

F.3d at 1294); see also id. at 220 (“[A]bsent from the Vice President’s discretion is his ability to

change the definition of Vice-Presidential records provided by Congress when exercising his

obligations under the PRA . . . .”).

At the outset, Defendants respectfully submit that CREW v. Cheney incorrectly applied

Armstrong II. As noted above, Armstrong II held that “courts may review guidelines outlining

what is, and what is not, a ‘presidential record’ to ensure that materials that are not subject to the

PRA are not treated as presidential records.” Armstrong II, 1 F.3d at 1294. The CREW v. Cheney

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court recognized as much. See 593 F. Supp. at 215 (“Clearly, [Armstrong II’s] holding was meant

‘to ensure that materials that are not subject to the PRA are not treated as presidential records.”

(quoting Armstrong II, 1 F.3d at 1293)). Yet while the court realized that the case before it

“presents the reverse situation,” it reasoned that “[t]he review undertaken by a court in each

circumstances is nevertheless identical; a court must review the guidelines the executive uses to

define records under the PRA.” Id.

That conclusion over-reads Armstrong II. The exception recognized in Armstrong II was

“limited,” “narrow” and “clearly defined,” 1 F.3d at 1290, 1292, arising solely from the concern

that the President might improperly use the PRA to shield from release under FOIA materials that

are not presidential records at all. For that reason, the Armstrong II court held that “Congress

preserved the critical role of judicial review under the FOIA, and avoided a conflict between the

PRA and the FOIA, by explicitly exempting records subject to the FOIA from the scope of the

PRA and allowing judicial review of guidelines defining presidential records under the rubric of

substantive FOIA law,” id. at 1292 (emphasis added). In other words, the Armstrong II holding

only applies when a FOIA plaintiff is contending that he did not obtain documents to which FOIA

entitles him because the President wrongfully classified them as presidential records.

As to materials that are presidential records, and that are not subject to FOIA during the

President’s time in office, both Armstrong I and Armstrong II make abundantly clear that Congress

left it to the President to comply with the statute, absent judicial intervention. See Armstrong I,

924 F.2d at 290 (“[P]ermitting judicial review of the President’s compliance with the PRA would

upset the intricate statutory scheme Congress carefully drafted to keep in equipoise important

competing political and constitutional concerns.”); Armstrong II, 1 F.3d at 1293 (“[D]ecisions that

involve materials that are truly presidential records are immune from judicial review.”). Indeed, a

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subsequent decision from the Armstrong saga makes this point even more clear: “[R]ecord-

keeping requirements of the FRA are subject to judicial review and enforcement; those of the PRA

are not.” Armstrong v. Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996)

(“Armstrong III”). Because the CREW v. Cheney court ruled in favor of the government on other

grounds, however, the government was unable to challenge its interpretation of Armstrong II on

appeal.

In any event, CREW v. Cheney is distinguishable. As noted, it held that while claims about

“creation, management, and disposal decisions” were precluded under Armstrong I, review was

available of “the President’s guidelines applied to the initial classification of documents.” Claims

one, two, and three here, however, do not challenge any guidelines and have nothing to do with

the “initial classification of documents” as personal or presidential records under 44 U.S.C.

§ 2203(b). Rather, claim one seeks a declaratory judgment that the use of “messaging apps that

prevent the preservation of presidential records violates the [PRA].” Compl. Claim One

(capitalization modified). This claim concerns the management and disposal of presidential

records, not their classification as presidential records or not. Claim two seeks a declaratory

judgment that the failure to issue guidelines concerning such applications violates the PRA, see

Compl. Claim Two; again, this claim has nothing whatsoever to do with the initial classification

of materials as presidential records or not. Finally, claim three seeks a writ of mandamus

compelling Defendants to “refrain from using methods of communication that destroy records

before any determination can be made as to whether they should be preserved as presidential

records.” Compl. Prayer for Relief ¶ 3. Plaintiffs’ allegation is thus not that Defendants are

misclassifying presidential records as personal under 44 U.S.C. § 2203(b) — it is that Defendants

are deleting them “wholesale.” Compl. ¶¶ 95-96. At bottom, none of these claims has anything

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to do with either guidelines or the classification of materials as subject to the PRA or not; instead,

they all concern Defendants’ management of records subject to the PRA.

2. CREW v. Cheney relied in part on an earlier decision, American Historical

Association v. Peterson, 876 F. Supp. 1300 (D.D.C. 1995). In that case, the plaintiffs asked “the

Court to declare null and void a Memorandum of Agreement between former President [George

H.W.] Bush and former Archivist Don W. Wilson . . . , signed on the day former President Bush

left office, which purports to give former President Bush exclusive control over electronic records

of the Executive Office of the President created during former President Bush’s term in office.”

Id. at 1303. The effect of the agreement was to remove from the Archivist principal responsibility

for making records management decisions following President Bush’s term in office. The

plaintiffs challenged the agreement under both the PRA and Article II of the Constitution, among

other legal theories. Id.

The court explained that “[a] careful reading of the Armstrong I and Armstrong II opinions

demonstrates that the Court of Appeals’ holdings regarding judicial review of the President’s

compliance with the PRA do not extend to the preservation and disposal provisions applicable

after a President has left office.” Id. at 1314-15; see also id. at 1315 (“[T]he provisions applicable

to the Archivist’s handling of records after a President’s term of office, 44 U.S.C. § 2203(f), are

not covered by the Armstrong decisions.”); id. at 1315 (“While the Armstrong decisions preclude

judicial review of the President’s compliance with the PRA during his term in office, they did not

address judicial review of the Archivist’s compliance with her obligations under the PRA when

she takes custody of Presidential records at the conclusion of the President's term.”). Insofar as

the case before this Court deals only with the President’s management of his records while he is

in office, rather than the Archivist’s management of those records after the President has left office,

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Peterson has no application here. See id. at 1315 (noting that “the provisions applicable to the

Archivist’s handling of records after a President’s term of office are not covered by the Armstrong

decisions,” likely because “the Archivist — not a former President — is charged with

implementing § 2203(f), and . . . her actions are subject to judicial review”).

III. The Court Should Dismiss Claims One, Two, And Four Because They Inappropriately Invoke The Declaratory Judgment Act, Which Does Not Create A Cause Of Action.

In addition to the numerous flaws discussed above, claims one, two, and four — which

seek purely declaratory relief — should also be dismissed because they improperly invoke the

Declaratory Judgment Act, 28 U.S.C. § 2201. As discussed more fully below, that statute does

not create a cause of action, but instead merely expands the remedies available in an otherwise

proper civil action, which does not exist here.

At the outset, the PRA — which precludes judicial review — certainly does not create a

cause of action. See Judicial Watch, 845 F. Supp. 2d at 299 n.5 (“To the extent that plaintiff’s

claim is premised on the PRA, there is no private right of action under the PRA.”). Nor, as

discussed more fully below, see infra Part V, do Plaintiffs validly invoke another cause of action

in claim four.

While Plaintiffs’ complaint is not a model of clarity on this point, it appears that claims

one, two, and four rely exclusively upon the Declaratory Judgment Act for a cause of action. The

Declaratory Judgment Act, however, “presupposes the existence of a judicially remediable right,”

Schilling v. Rogers, 363 U.S. 666, 677 (1960); in other words, it does not create a cause of action.

See Ali, 649 F.3d at 778 (“Nor does the Declaratory Judgment Act (DJA) provide a cause of action.

It is a well-established rule that the Declaratory Judgment Act is not an independent source of

federal jurisdiction. Rather, the availability of declaratory relief presupposes the existence of a

judicially remediable right.’” (quoting C&E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth., 20

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310 F.3d 197, 201 (D.C. Cir. 2002) (additional citations and alterations omitted)); accord Metz v.

BAE Sys. Tech. Solutions & Servs. Inc., 774 F.3d 18, 25 n.8 (D.C. Cir. 2014) (same); Doe v. U.S.

Parole Comm’n, 602 F. App’x 530, 532 n.3 (D.C. Cir. 2015) (same).4 Because claims one, two,

and four do not identify a valid cause of action against the government, the Court should dismiss

them.

IV. Claim Three Should Be Dismissed Because Plaintiffs Do Not Satisfy The Demanding Standard For Mandamus Relief.

Claim three seeks a writ of mandamus “ordering the President, his staff, and the EOP to

comply with their mandatory, non-discretionary duties under the PRA, and the President’s

obligations under the Take Care Clause.” Compl. ¶ 108. Plaintiffs’ prayer for relief specifies that

they are seeking an order compelling all Defendants “to refrain from using methods of

4 This court has repeatedly applied this principle. See Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31, 35 (D.D.C. 2016) (“A declaratory action under § 2201 is not a separate cause of action, but rather a prayer for relief.”); Malek v. Flagstar Bank, 70 F. Supp. 3d 23, 28 (D.D.C. 2014) (“[A] count for a declaratory judgment is not cognizable as a separate cause of action, but is more properly included in the prayer for relief.” (alterations omitted)); Intelsat USA Sales Corp. v. Juch- Tech, Inc., 935 F. Supp. 2d 101, 120 (D.D.C. 2013) (same); Walpin v. Corp. for Nat’l. & Comm. Serv., 718 F. Supp. 2d 18, 24 (D.D.C. 2010) (same); Mohamed v. Select Portfolio Servicing, Inc., 215 F. Supp. 3d 85, 97 (D.D.C. 2016) (“The Act does not, however, provide a stand-alone cause of action; it only authorizes a form of relief.”); Bridges v. Blue Cross & Blue Shield Ass’n, 935 F. Supp. 37, 45 (D.D.C. 1996); Detroit Int’l Bridge Co. v. Gov’t of Canada, 133 F. Supp. 3d 70, 88 (D.D.C. 2015) (“[T]he Declaratory Judgment Act does not provide a cause of action . . . although it does authorize a form of relief for properly-pled actions.” (citation omitted)), amended on denial of reconsideration, 189 F. Supp. 3d 85 (D.D.C. 2016); United States v. Instruments, S.A., 807 F. Supp. 811, 814 (D.D.C. 1992) (“When a complaint seeks declaratory relief . . there must be a basis for federal jurisdiction independent of the Declaratory Judgment Act itself. . . . But the plaintiff must also raise a federal claim, for the Declaratory Judgment Act does not create a cause of action.”); Seized Prop. Recovery, Corp. v. U.S. Customs & Border Prot., 502 F. Supp. 2d 50, 64 (D.D.C. 2007) (“Although Plaintiff purports to bring this claim under the Declaratory Judgment Act, it does not specify any cause of action through which the Court may exercise subject matter jurisdiction and grant declaratory relief.”); Superlease Rent-A-Car, Inc. v. Budget Rent-A-Car of Md., No. 89-0300, 1989 WL 39393, at *3 (D.D.C. Apr. 13, 1989) (“[T]he Declaratory Judgment Act . . . provides no independent cause of action. The plaintiff must assert an interest in itself, which the law recognizes. In other words, the plaintiff must first have a cognizable cause of action . . . .”). 21

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communication that destroy records before any determination can be made as to whether they

should be preserved as presidential records under the Presidential Records Act.” Compl. Prayer

for Relief ¶ 3.

While the mandamus statute theoretically could provide the cause of action that is lacking

for Plaintiffs’ other claims, mandamus — like other forms of judicial review — is not available

when judicial review is precluded. As the Ninth Circuit has explained in declining to issue a writ

of mandamus where judicial review was precluded, “[i]t would frustrate the Congressional scheme

. . . if exclusive jurisdiction could be thwarted by a party’s characterization of the nature of the

lawsuit.” Columbia Power Trades Council v. Dep’t of Energy, 671 F.2d 325, 328-29 (9th Cir.

1982); see also, e.g., Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503, 506 (4th Cir. 1999)

(Mandamus Act does not override statute that limits jurisdiction); In re Blackwater Sec.

Consulting, LLC, 460 F.3d 576, 593 (4th Cir. 2006) (similar); Ross v. United States, 460 F. Supp.

2d 139, 150 (D.D.C. 2006) (similar, collecting authority). Because claim three is precluded by the

PRA, see supra Part II, the Court need not consider whether Plaintiffs are otherwise entitled to

mandamus relief.

Should the Court proceed further, however, it is apparent that Plaintiffs are not entitled to

mandamus: Plaintiffs do not allege that the President has failed to comply with a ministerial duty

owed to them, and entering a writ of mandamus against the President would raise extraordinary

separation of powers concerns. Finally, that Plaintiffs have dressed up their PRA claim as a

constitutional claim that the President has failed to take care that the laws be faithfully executed,

see U.S. Const. Art II, sec. 3, cl. 5, does not change the analysis.

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A. Plaintiffs Do Not Allege That The Defendants Have Failed To Comply With Ministerial, Nondiscretionary Duties Owed To Them.

Mandamus relief is appropriate only if a plaintiff has a clear right to relief, the defendants

have a clear duty to act, and there is no other adequate remedy available to the plaintiff. PDK

Labs, Inc. v. Reno, 134 F. Supp. 2d 24, 34 (D.D.C. 2001). Mandamus jurisdiction “is strictly

confined. . . . Mandamus is ‘drastic’; it is available only in ‘extraordinary situations’; it is hardly

ever granted; those invoking the court’s mandamus jurisdiction must have a ‘clear and

indisputable’ right to relief.” In re Cheney, 406 F. 3d 723, 729 (D.C. Cir. 2005) (en banc). The

duty “to be performed by the agency must be ‘ministerial and the obligation to act peremptory,

and clearly defined. The law must not only authorize the demanded action, but require it; the duty

must be clear and indisputable.” PDK Labs, 134 F. Supp. 2d at 34. A ministerial duty “is one that

admits of no discretion, so that the official in question has no authority to determine whether to

perform the duty.” Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996). “[E]ven if the plaintiff

overcomes all these hurdles, whether mandamus relief should issue is discretionary.” Cheney, 406

F.3d at 729.

The PRA does not provide a “clear and compelling duty” owed by the President to

plaintiffs. As relevant here, the statute provides 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 constitutional, statutory, or other official or ceremonial duties are

adequately documented and that such records are maintained as Presidential records pursuant to

the requirements of this section and other provisions of law.” 44 U.S.C. § 2203(a). The section

leaves it to the President to “take all such steps as may be necessary,” without defining any clear

or ministerial duty appropriate for mandamus relief. Cf. Webster v. Doe, 486 U.S. 592, 600-01

(1988) (finding phrase “shall deem such termination necessary or advisable in the interests of the

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United States” to “fairly exude[] deference to the Director”). In other words, as the D.C. Circuit

has explained, compliance with the statutory regime is entrusted to the President. See Armstrong

I, 924 F.2d at 290 (“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.”); Armstrong II, 1 F.3d at

1293 (“[D]ecisions that involve materials that are truly presidential records are immune from

judicial review.”); Judicial Watch, 845 F. Supp. 2d at 288 (President has “unfettered control over

his own documents”)

CREW v. Cheney rejected an analogous argument, but its holding is again distinguishable.

That decision held that the Vice-President lacked the authority to “change the definition of Vice-

Presidential records provided by Congress when exercising his obligations under the PRA.” 593

F. Supp. 2d at 220 (emphasis omitted); see also id. at 221 (“Congress did not grant the Vice

President the discretion to apply whatever definition of Vice-Presidential records he decided suited

him when undertaking his preservation obligations.”). Here, as discussed more fully above, see

supra Part II, there is no suggestion that Defendants have modified the definition of presidential

records. Instead, Plaintiffs’ allegation is that Defendants are using messaging applications that fail

to preserve presidential records. As Armstrong I confirms, however, the President’s management

and preservation of records is left to his discretion. See 924 F.2d at 294 (“PRA accords the

President virtually complete control over his records during his term of office.”). Even the CREW

v. Cheney court recognized as much, explaining that “that the Vice President has discretion

concerning the decision to create or dispose of Vice-Presidential records, and even how he chooses

to preserve them.” 593 F. Supp. 2d at 220.

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Plaintiffs’ suggestion that the PRA imposes specific nondiscretionary duties on “the EOP,”

see Compl. ¶ 105, is equally mistaken. In actuality, the PRA provides 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 constitutional, statutory, or other official or

ceremonial duties are adequately documented and that such records are preserved and maintained

as Presidential records pursuant to the requirements of this section and other provisions of law.”

44 U.S.C. § 2203(a). Many components of the EOP are not governed by the Presidential Records

Act at all, but are instead governed by FOIA and the Federal Records Act. See 5 U.S.C. § 552(f).

It is only the President, his immediate personal staff, and “units in the Executive Office whose sole

function is to advise and assist the President” who fall outside the FOIA/FRA regime and are

instead governed by the PRA. See Kissinger, 445 U.S. at 156. It is because the EOP is composed

of different offices subject to differing recordkeeping requirements that the D.C. Circuit has

rejected the notion that the EOP itself is an “agency” under FOIA. See United States v. Espy, 145

F.3d 1369, 1373 (D.C. Cir. 1998) (“[I]t has never been thought that the whole Executive Office of

the President could be considered a discrete agency under FOIA.”); see also Int’l Counsel Bureau

v. CIA, No. 09-2269, 2010 WL 1410561, at *1 (D.D.C. Apr. 2, 2010).

Finally, even if the acts alleged by Plaintiffs represented a violation of Defendants’

ministerial duties as a general matter, they do not represent a violation of such duties owed to the

Plaintiffs. See 28 U.S.C. § 1361 (“The district courts shall have original jurisdiction of any action

in the nature of mandamus to compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.”); cf., e.g., Marbury v. Madison, 5 U.S. (1 Cranch)

137, 162 (1803) (“Mr. Marbury, then, since his commission was signed by the President, and

sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer

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a right to hold for five years, independent of the executive, the appointment was not revocable; but

vested in the officer legal rights, which are protected by the laws of this country.”). Any duties

created under the PRA are owed not to Plaintiffs, but to the public at large. See, e.g., Armstrong

I, 924 F.2d at 290 (“Congress 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.” (emphasis added)).

The mandamus statute does not permit a plaintiff to vindicate duties owed to the general

public. Indeed, in adopting the language in 28 U.S.C. § 1361 that the governmental official must

owe a duty “to the plaintiff,” Congress specifically considered and rejected proposals to extend

Section 1361 to the enforcement of duties owed by government officials to the general public. See

See S. Rep. No. 87-1992 (1962) (proposing to make mandamus relief available to enforce “a duty

owed to the plaintiff or to make a decision in any matter involving the exercise of discretion”).

Byron White, then the Deputy Attorney General, criticized this proposal on behalf of the

Department of Justice: “We think it essential that the section . . . specifically limit its exercise to

ministerial duties owed to the plaintiff. Should the language be applied to discretionary acts of

Federal officers, the judicial branch would be invading the executive or legislative function in

violation of the doctrine of separation of powers.” Id. at 6 (emphasis added); see also 108 Cong.

Rec. 20,079 (1962). The mandamus statute ultimately enacted by Congress followed the Deputy

Attorney General’s advice. See Pub. L. No. 87-748, 76 Stat. 744 (1962); see also 108 Cong. Rec.

20,093 (1962) (“The Senate amendment makes it clear that the duty must be one owed to the

plaintiff.”). Here, because Plaintiffs do not allege that Defendants are violating any duties owed

specifically to them, they cannot obtain mandamus relief.

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B. Entering A Writ Of Mandamus Against The President Would Raise Extraordinary Separation Of Powers Concerns.

Even if Plaintiffs had properly alleged that the President was failing to comply with

ministerial, nondiscretionary duties owed to them, issuing a writ of mandamus against the

President would raise extraordinary separation of powers concerns. The Supreme Court has said

that a “grant of injunctive relief against the President himself is extraordinary, and should . . . raise

[] judicial eyebrows,” Franklin v. Massachusetts, 505 U.S. 788, 802 (1992). The D.C. Circuit has

gone even further, indicating that “courts do not have jurisdiction to enjoin” the President, see

Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (citing Mississippi v. Johnson, 71 U.S.

(4 Wall.) 475, 501 (1867)). While it has been suggested that Supreme Court precedent leaves open

“the question whether the President might be subject to a judicial injunction requiring the

performance of a purely ‘ministerial’ duty,” Franklin, 505 U.S. at 823, 827 n.2 (Scalia, J.,

concurring), the D.C. Circuit has “never attempted to exercise power to order the President to

perform a ministerial duty.” Swan, 100 F.3d at 978. And courts have “never submitted the

President to declaratory relief.” Newdow, 603 F.3d at 1013.

“The reasons why courts should be hesitant to grant such relief are painfully obvious; the

President, like Congress, is a coequal branch of government, and for the President to ‘be ordered

to perform particular executive . . . acts at the behest of the Judiciary,’ at best creates an unseemly

appearance of constitutional tension and at worst risks a violation of the constitutional separation

of powers.” Swan, 100 F.3d at 978 (quoting Franklin, 505 U.S. at 827 (Scalia, J., concurring in

part and concurring in the judgment)). Here, where Plaintiffs are not entitled to mandamus relief

for any number of reasons (including the PRA’s preclusion of judicial review), the Court should

be exceptionally hesitant to break new constitutional ground by entering a writ of mandamus

against the President.

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C. Plaintiffs’ Constitutional Take Care Claims Fare No Better.

Plaintiffs further contend, relying principally on the Peterson case, that their entitlement to

a writ of mandamus is bolstered by the Constitution’s requirement that the President “take care

that the laws, including the PRA, be faithfully executed.” See Compl. ¶ 106; U.S. Const. Art II,

sec. 3, cl. 5. As Plaintiffs concede, however, “the context of that case differs from the actions

challenged here.” Compl. ¶ 40. As discussed above, Peterson involved an agreement that granted

“former President [George H.W.] Bush, now a private citizen, authority to direct the former

Archivist’s actions and those of his successors, while Article II of the Constitution vests in the

incumbent President the authority to direct the actions of current Executive officials.” Peterson,

876 F. Supp. at 1320. The Court held that “former President Bush has no constitutional authority

to direct the actions of the Archivist, as that authority properly belongs to President Clinton.” Id.

at 1321. Peterson has no application here, since Plaintiffs do not allege that a former President

has sought to reserve for himself the current President’s obligation to faithfully execute the PRA.5

Instead, Plaintiffs’ complaint exclusively challenges the current President’s faithful

execution of the laws. At the outset, that claim is simply a dressed-up allegation that the President

is failing to comply with a federal statute. Where judicial review of the President’s compliance

with the PRA is squarely precluded, see supra Part II, Plaintiffs cannot save their claim by calling

it a constitutional take care claim. See, e.g., Dalton v. Spencer, 511 U.S. 462, 471 (1994) (rejecting

argument “that whenever the President acts in excess of his statutory authority, he also violates the

constitutional separation-of-powers doctrine”); id. at 474 (“The distinction between claims that an

official exceeded his statutory authority, on the one hand, and claims that he acted in violation of

5 In addition, in Peterson, the plaintiffs relied upon the APA for their cause of action against the Archivist. Peterson, 876 F. Supp. at 1321. Plaintiffs do not purport to bring APA claims here, nor could they bring APA claims against the President or the EOP. See Franklin, 505 U.S. at 796; Espy, 145 F.3d at 1373. 28

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the Constitution, on the other, is too well established to permit this sort of evisceration.”). Any

other result would render Armstrong I’s holding utterly meaningless. See Dalton, 511 U.S. at 474

(“As this case demonstrates, if every claim alleging that the President exceeded his statutory

authority were considered a constitutional claim, the exception identified in Franklin [permitting

review of presidential acts for constitutionality] would be broadened beyond recognition.”).

Plaintiffs cannot transform their garden-variety statutory claim into a constitutional one by alleging

that the President’s failure to comply with a federal statute amounts to a violation of his

constitutional responsibilities under Article II.

Finally, even if Plaintiffs had alleged real claims under the Take Care clause, courts lack

jurisdiction over a claim where there is “a textually demonstrable constitutional commitment of

the issue to a coordinate political department” or “a lack of judicially discoverable and manageable

standards for resolving it.” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v.

Carr, 369 U.S. 186, 217 (1962)). The Supreme Court made clear in Marbury that under “the

constitution of the United States, the president is invested with certain important political powers,

in the exercise of which he is to use his own discretion, and is accountable only to his country in

his political character.” 5 U.S. at 165-66 (1803). The Supreme Court has accordingly made clear

that courts cannot supervise the President in his carrying out of this Constitutional function:

Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed . . . . The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as ‘an absurd and excessive extravagance.’

Mississippi v. Johnson, 71 U.S. at 499; see also, e.g., Lujan, 504 U.S. at 577 (holding that it would

be improper for the courts to take over the President’s duty to “take Care that the Laws be faithfully

executed”).

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V. Claim Four Should Be Dismissed Because Plaintiffs Have No Basis For Challenging The President’s Use Of Executive Orders.

Claim four alleges that Defendants “have used executive orders to transform what would

otherwise be federal records into presidential records and cloak the entire process in secrecy,

seeking to evade the transparency and accountability sought by the FOIA, FRA, and APA.”

Compl. ¶ 110. “By removing from agencies the process of issuing policies and guidance, the

Defendants have, in effect, blocked the federal agencies from complying with federal law and

policy, including the FRA, FOIA, and APA.” Id. ¶ 117. Plaintiffs seek “a declaratory judgment

that the Defendants’ interference with the obligations that the FRA, FOIA, and APA impose on

federal agencies is contrary to law and violates the President’s constitutional obligation to take

care that the law be faithfully executed.” Id. ¶ 120. This claim is both inadequately pleaded and

substantively deficient.

A. Claim Four Is Inadequately Pleaded Because It Fails To Identify Specific Executive Orders That Are Allegedly Unlawful.

At the outset, claim four fails for a remarkable lack of specificity: Plaintiffs do not contend

that a particular executive order unlawfully arrogates executive power within the White House,

but instead make broad, generalized allegations about the President’s use of executive orders writ

large. Indeed, Plaintiffs have not even sued any of the federal agencies that they believe have been

precluded from complying with their statutory obligations. Plaintiffs cannot plead their claims so

vaguely. See Fed. R. Civ. P. 8(a)(2) (complaint must include “a short and plain statement of the

claim showing that the pleader is entitled to relief”); Iqbal, 556 U.S at 678 (“A pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’

Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of “‘further factual

enhancement.’” (citations omitted; quoting Twombly, 550 U.S. at 555, 557)).

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If Plaintiffs believe that a particular executive order issued by the President was unlawful,

they must identify the executive order and state specifically why it is unlawful; anything less does

not fairly put Defendants on notice of the nature of Plaintiffs’ claims and the grounds on which

they rest. See, e.g., Sieverding v. U.S. Dep’t of Justice, 847 F. Supp. 75, 86 (D.D.C. 2012) (“[I]t

is not clear what record forms the basis of her § 552a(d) complaint, nor what record Sieverding

seeks to amend. Accordingly, in these claims . . . Sieverding cannot even satisfy the requirements

of Federal Rule of Civil Procedure 8 . . . .”); Mero v. City Segway Tours of Wash. D.C., LLC, 726

F. Supp. 2d 100, 107 (D.D.C. 2011) (“[C]onclusory allegation, which does not specify how

defendants evaded the spirit of the contract, willfully rendered imperfect performance, or

interfered with performance by plaintiff, does not suffice to state a claim under the standard set

forth in Twombly and Iqbal.”). And like most of Plaintiffs’ other claims in this case, claim four

identifies no cause of action against the government other than the Declaratory Judgment Act.

In addition to those procedural deficiencies, claim four is also substantively deficient, as

neither FOIA, nor the FRA, nor the APA, prohibits the behavior that Plaintiffs allege in their

complaint.6 These substantive problems are discussed in turn below.

B. Plaintiffs Cannot Proceed Under FOIA Because They Have Not Submitted A Particular FOIA Request, And Because FOIA Does Not Obligate Agencies To Create Or Obtain Documents That They Do Not Have.

Claim four contends that by centralizing policymaking in the White House, Defendants

have inappropriately precluded agencies from creating federal records that Plaintiffs would

otherwise be entitled to obtain through FOIA. FOIA, however, merely “vests jurisdiction in

federal district courts to enjoin an ‘agency from withholding agency records and to order the

production of any agency records improperly withheld from the complainant.’” Kissinger, 445

6 To the extent that claim four also rests upon the Take Care Clause, the claim fails for all the reasons discussed with respect to claim three. See supra Part IV.C. 31

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U.S. at 139 (quoting 5 U.S.C. § 552(a)(4)(B)); Tax Analysts, 117 F.3d at 610 (“The only remedy

[5 U.S.C.] § 552(a)(4)(B) mentions is an order directing the agency to produce the records to the

complaining party.”). It is well established that FOIA “does not obligate agencies to create or

retain documents; it only obligates them to provide access to those which it in fact has created and

retained.” Kissinger, 445 U.S. at 152; see also, e.g., Forsham v. Harris, 445 U.S. 169, 186 (1980)

(“[T]he FOIA imposes no duty on the agency to create records.”); Armstrong II, 1 F.3d at 1287

(“Nor do we saddle agencies with any new obligations to make additional documents in order to

satisfy the needs of researchers or investigators.”). Plaintiffs do not have any FOIA-derived rights

for any particular agency to create any particular document.

Even if Plaintiffs did have relevant rights under FOIA (which they do not), there is an

established way to assert rights under FOIA: submit a request for records and file suit if the agency

fails to comply. Under FOIA, an agency is required to release documents upon receipt of “any

request for records which (i) reasonably describes such records and (ii) is made in accordance with

published rules stating the time, place, fees (if any), and procedures to be followed.”

5 U.S.C. § 552(a)(3)(A). If an agency does not comply, the complainant can file suit.

See id. § 552(a)(4)(B) (“On complaint, the district court . . . has jurisdiction to enjoin the agency

from withholding agency records and to order the production of any agency records improperly

withheld from the complainant.”). But “[w]here a FOIA request is not made in accordance with

the published regulations, the FOIA claim is subject to dismissal for failure to exhaust

administrative remedies.” Calhoun v. U.S. Dep’t of Justice, 693 F. Supp. 2d 89, 91 (D.D.C. 2010)

(citing West v. Jackson, 448 F. Supp. 2d 207, 211 (D.D.C. 2006)); see also Tyree v. Hope Vill.,

Inc., 677 F. Supp. 2d 109, 111 (D.D.C. 2009) (where “the plaintiff did not comply with the

applicable DOJ FOIA regulations . . . the FOIA claim cannot be maintained even against a proper

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defendant because it has not been exhausted; it has not even been initiated”). Plaintiff has not

exhausted a FOIA claim or filed a FOIA suit.

As this court has recognized, plaintiffs must assert their FOIA rights under FOIA, or not at

all. See Feinman v. FBI, 713 F. Supp. 2d 70, 76 (D.D.C. 2010) (“This Court and others have

uniformly declined jurisdiction over APA claims that sought remedies made available by FOIA.”);

see also, e.g., Am. Chemistry Council, Inc. v. Dep’t of Health & Human Servs., 922 F. Supp. 2d

56, 66 (D.D.C. 2013); Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 795 F. Supp. 2d 85, 95 (D.D.C.

2011); Kenney v. Dep’t of Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009); People for the Am.

Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 308 (D.D.C. 2007); Physicians Comm. for

Responsible Med. v. Dep’t of Health & Human Servs., 480 F. Supp. 2d 119, 121 n.2 (D.D.C. 2007);

Edmonds Inst. v. Dep’t of the Interior, 383 F. Supp. 2d 105, 111 (D.D.C. 2005); Sierra Club v.

Dep’t of the Interior, 384 F. Supp. 2d 1, 30 (D.D.C. 2004). Because Plaintiffs have not alleged

that they have submitted a specific FOIA request or filed a lawsuit under FOIA, they cannot

enforce any FOIA rights in this lawsuit.

C. Plaintiffs Cannot Proceed Under The APA Because They Are Not Challenging A Particular Final Agency Action, Nor Have They Sued An Agency.

Plaintiffs similarly cannot proceed under the APA. Under the APA, before agencies issue

legislative rules, they are generally required to provide notice of a proposed rulemaking and solicit

public comments. See 5 U.S.C. § 553. The APA creates judicial review over “[a]gency action

made reviewable by statute and final agency action for which there is no other adequate remedy

in a court,” 5 U.S.C. § 704, and among the arguments available to APA plaintiffs are that the

agency action was taken “without observance of procedure required by law.” 5 U.S.C.

§ 706(2)(D). There are therefore numerous court decisions setting aside legislative rules that were

issued without following the notice and comment provisions of the APA. See, e.g., UPMC Mercy

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v. Sebelius, 793 F. Supp. 2d 62, 70 (D.D.C. 2011); N. Mariana Islands v. United States, 686 F.

Supp. 2d 7, 17 (D.D.C. 2009). Like the plaintiffs in those cases, Plaintiffs here are free to identify

a final agency action that they think was enacted without the procedure required by law and bring

an APA suit against the agency that promulgated it.

Plaintiffs here, however, do not identify a final agency action that they intend to challenge

— nor do they even name an agency as a Defendant. See Elec. Privacy Info. Ctr. v. Presidential

Advisory Comm’n on Election Integrity, --- F. Supp. 3d ----, 2017 WL 3141907, at *13 (D.D.C.

July 24, 2017) (rejecting view that EOP as a whole is an agency subject to APA). They thus plainly

have not stated claims under the APA.

D. Plaintiffs Cannot Proceed Under The FRA.

Finally, Plaintiffs may not proceed under the Federal Records Act. As relevant here, the

FRA provides that the “head of each Federal agency shall make and preserve records containing

adequate and proper documentation of the organization, functions, policies, decisions, procedures,

and essential transactions of the agency and designed to furnish the information necessary to

protect the legal and financial rights of the Government and of persons directly affected by the

agency’s activities.” 44 U.S.C. § 3101. The only judicial proceedings contemplated by the statute

are an action brought by the Attorney General to prevent or remedy the unlawful removal of

records, upon the referral of either the agency head or the Archivist of the United States. See 44

U.S.C. § 3106.

As the Supreme Court has held, “[n]o provision” of the FRA “expressly confers a right of

action on private parties. Nor do we believe that such a private right of action can be implied.”

Kissinger, 445 U.S. at 148. Thus, the Supreme Court held, “regardless of whether Kissinger has

violated the [FRA], Congress has not vested federal courts with jurisdiction to adjudicate that

question upon suit by a private party. That responsibility is vested in the administrative 34

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authorities.” Id. at 149-50. The D.C. Circuit nonetheless held in Armstrong I that district courts

“may entertain plaintiffs’ claim that [a federal agency’s] recordkeeping guidelines and directives

. . . are inadequate because they permit the destruction of ‘records’ that must be preserved under

the FRA,’” id. at 291, and it further held that the agency head’s decision whether or not to refer a

matter to the Attorney General is subject to judicial review. Id. at 297. The D.C. Circuit has not

wavered, however, from the holding “that the FRA precludes direct private actions to require []

agency staff [to] comply with the agency’s recordkeeping guidelines.” Armstrong I, 924 F.2d at

297. “Because it would clearly contravene this system of administrative enforcement to authorize

private litigants to invoke federal courts to prevent an agency official from improperly destroying

or removing records, we hold that the FRA precludes judicial review of such actions.” Id. at 294;

see also, e.g., CREW v. DHS, 527 F. Supp. 2d at 111 (private litigants are “precluded from suing

the DHS to enjoin the agency from acting in contravention of its own recordkeeping guidelines or

the FRA. The Court may not, in other words, prohibit the DHS from improperly discarding agency

records . . . . The FRA . . . precludes a private action, like this one, that seeks to require agency

staff to comply with the agency’s recordkeeping guidelines or the FRA, or to retrieve records lost.”

(emphasis added)).

Under Kissinger and Armstrong I, it is apparent that if Plaintiffs had sued a federal agency

subject to the Federal Records Act and alleged that it was failing to comply with that statute,

judicial review would be squarely precluded. But here, Plaintiffs have not done even that. Instead,

they have sued the President and the Executive Office of the President, who are not statutorily

responsible for other federal agencies’ compliance with the FRA. Even assuming that judicial

review were available of a particular agency’s compliance with the FRA, Plaintiffs would need to

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sue the party that is allegedly failing to comply. Since they have not done so here, they have not

stated claims under the FRA.

CONCLUSION

Defendants respectfully request that their motion be granted and that this case be dismissed

with prejudice.

Dated: October 6, 2017 Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

JESSIE K. LIU U.S. Attorney for the District of Columbia

ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch

Mailing Address: Post Office Box 883 Washington, DC 20044

Courier Address: 20 Massachusetts Ave., NW Rm. 7334 Washington, DC 20001

Counsel for Defendants

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and NATIONAL SECURITY ARCHIVE, Plaintiffs,

THE HON. DONALD J. TRUMP, President of Case No. 1:17-CV-01228 (CRC) the United States of America and EXECUTIVE OFFICE OF THE PRESIDENT,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii INTRODUCTION...... 1 STATEMENT OF FACTS ...... 4 ARGUMENT ...... 9 I. Standard of review...... 9 II. As presented in the complaint, Defendants’ violations of the PRA and the Take Care Clause are claims upon which relief may be granted...... 10 A. Plaintiffs’ complaint states judicially reviewable claims under the PRA. . 11 B. Plaintiffs’ complaint states a judicially reviewable claim under the Take Care Clause...... 13 III. CREW and the Archive have standing in this case because they are unable to currently access federal agency records relating to executive orders and there is a very real risk that presidential records have been and will continue to be destroyed...... 20 A. Plaintiffs’ allegations and supporting declarations demonstrate that they have suffered and continue to suffer injuries caused by Defendants’ noncompliance with the PRA...... 21 B. Plaintiffs allegations and supporting declarations demonstrate current and ongoing injury related to their claims under the Take Care Clause of the Constitution...... 24 IV. Plaintiffs’ claims are not barred by Armstrong I or any other precedent...... 26 V. The Court has the power to issue the relief sought by Plaintiffs...... 35 A. Plaintiffs state a valid claim for mandamus relief because Defendants have failed to comply with their ministerial duties under the PRA...... 35 B. Plaintiffs have raised valid claims for declaratory relief...... 41 CONCLUSION ...... 42

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TABLE OF AUTHORITIES

Page(s) Cases

Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56 (D.D.C. 2014) ...... 6, 17

Ali v. Trump, No. 17-00135 (W.D. Wash., Mar. 28, 2017), ECF No. 82 ...... 18

Am. Historical Ass’n v. Peterson, 876 F. Supp. 1300 (D.D.C. 1995) ...... 30

Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013) ...... 21

Arab Am. Civil Rights League v. Trump, No. 17-10310 (E.D. Mich. July 6, 2017), ECF No. 115 ...... 18

*Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) ...... passim

*Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993) ...... passim

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) ...... 20, 26

Banneker Ventures, LLC v. Graham, 798 F.3d 1119 (D.C. Cir. 2015) ...... 10

*Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...... 10

Boritz v. United States, 685 F. Supp. 2d 113 (D.D.C. 2010) ...... 10

Boumediene v. Bush, 553 U.S. 723 (2008) ...... 40

Center for Biological Diversity v. Envtl. Prot. Agency, 861 F.3d 174 (D.C. Cir. 2017) ...... 20

Franklin v. Massachusetts, 505 U.S. 788 (1992) ...... 40, 41

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*Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ...... passim

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ...... 17

*Citizens for Responsibility and Ethics in Washington v. Cheney, 593 F. Supp. 2d 194 (D.D.C. 2009) ...... passim

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ...... 17

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ...... 24

*Clinton v. City of New York, 524 U.S. 417 (1998) ...... 14

Clinton v. Jones, 520 U.S. 681 (1997) ...... 40

Cohens v. Virginia, 19 U.S. 264 (1821) ...... 15

*Comm. on the Judiciary, U.S. House of Reps. v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008) ...... 3, 41, 42

Council of & for the Blind of Delaware Cty. Valley, Inc. v. Regan, 709 F.2d 1521 (D.C. Cir. 1983) ...... 35

Erickson v. Pardus, 552 U.S. 89 (2007) ...... 10

*Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998) ...... 25

Franklin v. Massachusetts, 505 U.S. 788 (1992) ...... 40, 41

Freedom Watch v. Obama, 807 F. Supp. 2d 28 (2011) ...... 41

*Hurd v. Dist. of Columbia, 864 F.3d 671 (D.C. Cir. 2017) ...... 6, 10

Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012) ...... 32

iii

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*Marbury v. Madison, 5 U.S. 137 (1803) ...... 4, 38, 39

Medellin v. Texas, 552 U.S. 491 (2008) ...... 14

In re Medicare Reimbursement Litig., 414 F.3d 7 (D.C. Cir. 2005) ...... 35

Mississippi v. Johnson, 71 U.S. 475 (1867) ...... 40

*Nat’l Harbor GP, LLC v. Gov’t of D.C., 121 F. Supp. 3d 11 (D.D.C. 2015) ...... 9, 10

*Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974) ...... passim

Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) ...... 40

Nixon v. Adm’r, 433 U.S. 425 (1977) ...... 34

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ...... 40

Nixon v. United States, 506 U.S. 224 (1993) ...... 19

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ...... 17

Scheuer v. Rhodes, 416 U.S. 232 (1974) ...... 9

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ...... 21

Train v. City of New York, 420 U.S. 35 (1975) ...... 13, 14

United States v. Nixon, 418 U.S. 683 (1974) ...... 40

Washington v. Trump, No. 17-00141 (W.D. Wash. Apr. 5, 2017), ECF No. 177 ...... 18

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J. concurring) ...... 3

Statutes

5 U.S.C. § 552 (2012) ...... 17

6 U.S.C. § 111 (2012) ...... 16

6 U.S.C. § 112 (2012) ...... 16

6 U.S.C. § 202 (2012) ...... 16

28 U.S.C. § 1331 (2012) ...... 42

28 U.S.C. § 1361 (2012) ...... 35

28 U.S.C. § 2201 (2012) ...... 35, 41

*44 U.S.C. § 2201 (2012) ...... 27, 36

*44 U.S.C. § 2202 (2012) ...... 26

*44 U.S.C. § 2203 (2012) ...... 26, 36

*44 U.S.C. § 2204 (2012) ...... 17

*44 U.S.C. § 2209 (2012) ...... 2, 11

44 U.S.C. § 3101 (2012) ...... 17

Other Authorities

124 Cong. Rec. 34,894 (daily ed. Oct. 10, 1978) ...... 34

124 Cong. Rec. 36,843 (daily ed. Oct. 13, 1978) ...... 34

124 Cong. Rec. 36,845 (daily ed. Oct. 13, 1978) ...... 28

*Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017) ...... 8

*Fed. R. Civ. Pro. 8...... 10

*Fed. R. Civ. Pro. 12...... 10

*Fed. R. Evid. 201 ...... 17

H.R. Rep. No. 95-1487, 95th Cong., 2d Sess. (1978) ...... 27, 31

S. Rep. No. 113-218 (2014) ...... 12

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Staff of H. Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers 1 (Comm. Print 1957)...... 15

The Presidential Records Act of 1978: Hearing on S. 3494 Before the Comm. on Gov’t Affairs, 95th Cong. (1978) ...... 28

*U.S. Const. Art. II, §3 ...... 3, 13, 20

White House Briefing Room, Presidential Actions, Executive Orders, https://www.whitehouse.gov/briefing-room/presidential-actions/executive- orders (last visited Nov. 3, 2017) ...... 15

* The authorities on which we principally rely are marked with asterisks.

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INTRODUCTION

In 1974, a disgraced president resigned, taking “his” presidential papers with him as he

left the White House. Recognizing that a country of the people, by the people, and for the people

cannot survive if the people do not have access to its historical record, Congress mandated public

ownership of a president’s papers through the Presidential Records Act. President Donald

Trump seeks to upend that law, claiming the absolute, unchecked power to ignore the PRA at

will. In the words of his lawyers, “Courts cannot review the President’s compliance with the

Presidential Records Act.” Def. Memo. at 1.1 So framed, this lawsuit presents the fundamental

question of whether the president may subvert congressional checks and balances embodied in a

series of statutes including the PRA to further enhance his own power while the people and the

judiciary stand by and watch. The answer must be no.

The PRA requires that the president document the activities, deliberations, decisions, and

policies of his administration; maintain those records created during the performance of his

duties; and preserve those records for posterity. To this end, the PRA requires the president to

categorize records as either presidential or personal. While the president enjoys significant

discretion in the day-to-day management of his records, the PRA mandates that categorization be

made. And, once made, presidential records may only be destroyed after the president

affirmatively determines they no longer have administrative, historical, or evidentiary value, and

only then with the written views of the Archivist of the United States. The president’s

significant discretion over the records is thus controlled and also temporary, because the records

are owned and eventually accessible by the people of the United States. Plaintiffs brought this

case to ensure that the people’s history is preserved.

1 Cites to “Def. Memo.” are to the Defendants’ Memorandum of Points and Authorities in Support of Motion to Dismiss, Dkt. No. 17-1228, ECF No. 11. Cites to “Compl.” are to the complaint.

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Recognizing the importance of the president’s compliance in the process of preserving

these important records, the D.C. Circuit has construed the PRA to allow judicial review where a

president is simply ignoring his statutory responsibilities. Thus, while courts will not second-

guess a president’s day-to-day decisions about individual documents, courts may review

“guidelines outlining what is, and what is not, a ‘presidential record’ under the terms of the

PRA.” Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1290 (D.C. Cir. 1993)

(“Armstrong II”).

The Defendants’ actions in this case contravene the explicit requirements of the PRA in

at least two ways that are subject to judicial review. First, Defendants have ignored their

responsibility to categorize records created on message-deleting applications, effectively

excluding them from the definition of presidential records. This is despite the fact that Congress

made clear that presidential records include records created using “electronic messaging systems

that are used for purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2)

(2012). Defendants have thus contravened the PRA by knowingly allowing employees to use

message-deleting apps that make categorization and preservation impossible.

Second, Defendants have impermissibly used the executive order process to circumvent

congressional delegations of rulemaking authority to executive agencies and the accountability

and transparency checks of the Administrative Procedure Act, the Federal Records Act, and the

Freedom of Information Act. Implementing changes to agency rules by executive order rather

than by agency regulation, and keeping that process wholly within the White House, prevents

judicial review under the APA as well as the creation of a publicly accessible paper trail of

federal records under the FRA and the FOIA. Instead of being immediately publicly accessible,

these documents—assuming they are preserved—will only be available to the public in, at the

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earliest, eight years. The outsized role the president has arrogated to himself thus interferes with

executive agencies’ statutory responsibilities and evades the transparency and accountability

measures Congress adopted through these laws.

Despite the importance of preserving presidential records, Defendants insist that the PRA

bars the president only from “issue[ing] guidelines that improperly treat materials that should be

subject to the FOIA or the FRA as presidential records” and that the president may otherwise

“mismanage[] and fail[] to preserve . . . presidential records” with impunity. Def. Memo. at 15.

This claim of presidential immunity under the PRA provides the foundation for Defendants’

argument that, without a cause of action under the PRA, declaratory judgment is unavailable. To

the contrary, the PRA permits, and indeed requires, the review requested here. Further, because

Defendants have failed to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, §

3, no independent cause of action need be identified to obtain a declaratory judgment. See

Chamber of Commerce v. Reich, 74 F.3d 1322, 1326 (D.C. Cir. 1996); Comm. on the Judiciary,

U.S. House of Reps. v. Miers, 558 F. Supp. 2d 53, 81 (D.D.C. 2008).

Defendants also contend that “separation of powers concerns” prevent this Court from

granting mandamus relief. Def. Memo. at 22. If accepted, this argument would prevent courts

from ever mandating that a president remedy constitutional or statutory violations. Thankfully,

the separation of powers is linked to checks and balances on each branch’s power. See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J. concurring).

One of these checks and balances is the tempering of presidential authority by statute.

“Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction

with those of Congress.” Id. at 635 (Jackson, J. concurring). By suggesting that the president

can act without checks on his power, Defendants knock the constitutional safeguards out of

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balance, amplifying their power and preventing the judiciary from exercising its own. This

proposed subordination of the judiciary to the executive has been rejected since the founding.

See Marbury v. Madison, 5 U.S. 137 (1803). The president has failed to comply with the

ministerial obligations imposed on him by Congress to categorize and maintain presidential

records. This Court has the power to mandate that he do so.

Finally, contrary to Defendants’ contention, Def. Memo. at 8, Citizens for Responsibility

and Ethics in Washington (“CREW”) and the National Security Archive (the “Archive”) have

standing because they have been denied access to records under FOIA and are highly likely to

suffer a future injury from Defendants’ continuing failure to preserve presidential records that

are essential to their missions. The very real risk that records will be unavailable to them

constitutes a sufficient injury-in-fact to give them standing.

For all these reasons, the Court should deny Defendants’ Motion to Dismiss and allow

this case to proceed on the merits.

STATEMENT OF FACTS

This lawsuit was brought against a backdrop of reports that White House staff were

ignoring, if not flouting, their responsibilities under federal records laws. Just days after

President Trump’s inauguration, the Wall Street Journal reported that some of the president’s

staff were using Signal, an encrypted peer-to-peer messaging application, to communicate with

each other about presidential business. Compl. ¶ 50. Similar reports followed in The Atlantic

and Vanity Fair. Compl. ¶ 50. Signal is produced by Open Whisper Systems, a private software

organization unaffiliated with the U.S. Government. Compl. ¶¶ 51, 53. Importantly, it has a

disappearing message function that allows the user to set a time to delete the message from all

devices. Compl. ¶ 52.

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In February, The Washington Post reported that some White House staffers were also

using another messaging application, Confide, that erases messages as soon as they are read.

Compl. ¶ 56. Confide was developed by Confide, Inc., a privately held third-party technology

company also unaffiliated with the U.S. Government. Compl. ¶ 57. Confide touts its product as

a “confidential messenger”; upon receiving messages through Confide its users “wand” over the

words and, according to the company’s website, “watch them disappear without a trace when

[they’re] done.” Compl. ¶ 58. At that point, the message is destroyed and is no longer capable

of being preserved. Compl. ¶ 58. Indeed, Confide touts the fact that by using its product,

messages are “gone for good—no forwarding, no printing and no archiving.” Compl. ¶ 58. The

destruction of messages through applications like Confide and Signal occurs with no independent

assessment of whether the message is a presidential record. Compl. ¶ 58.

In March, following these revelations, Jason Chaffetz, then chairman of the Oversight

and Government Reform Committee of the U.S. House of Representatives (“House Oversight

Committee”), and Ranking Member Elijah E. Cummings sent a letter to White House Counsel

Donald F. McGahn II regarding the obligations of the president and the Executive Office of the

President (“EOP”) under the PRA. Compl. ¶ 63. The letter observed that use of “new forms of

electronic communication, including encrypted messaging applications like Signal, Confide, and

WhatsApp . . . could result in the creation of presidential or federal records that would be

unlikely or impossible to preserve.” Compl. ¶ 63. The House Oversight Committee requested,

among other things, information on White House policies relating to the use of non-official

electronic messaging accounts, official text message or other messaging or communications

applications, and policies and procedures for securing and preserving presidential records.

Compl. ¶ 63.

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By letter dated April 11, 2017, Marc T. Short, assistant to the President and director of

Legislative Affairs, responded to the House Oversight Letter. Mr. Short stated only: “It is the

policy of the White House to comply with the preservation requirements of the PRA regardless

of where presidential records reside, how they are created, or the manner in which they are

transmitted.” Ex. A to the Declaration of George Clarke, dated Nov. 3, 2017 (“Clarke Decl.”).2

Notably, Mr. Short’s letter did not deny the reports that message-deleting apps were being used

or otherwise address how it is technologically possible for the above statement to be accurate. It

also did not end the congressional and press inquiries into this conduct.

A recent report in Politico about White House Senior Advisor Jared Kushner’s use of

private email for official business prompted House Oversight Committee Chairman Trey Gowdy

and Ranking Member Cummings to reach out to Mr. McGahn once more. By letter dated

September 25, 2017, they sought documents and information pertaining to five categories of

records. Clarke Decl., Ex. B. This included the identities of those non-career White House

officials who had used “text messages, phone-based message applications, or encryption

software,” the cellular number and account used, and requested that the White House “provide

evidence of measures to ensure compliance with federal law.” Id. at 2. The House Oversight

Committee also asked the White House to identify changes in policies or directives relating to

non-official email accounts and messaging applications since January 1, 2017. Id.

Mr. Short, again on behalf of the White House, responded by letter dated October 10,

2017. Clarke Decl., Ex. D. Rather than answer the questions posed in the House Oversight

letter, however, he noted simply that “[a]ll White House employees must comply with 44 U.S.C.

2 This Court may take judicial notice of public records and government documents available from reliable sources. Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 67–68 (D.D.C. 2014); Fed. R. Evid. 201(b). “‘[M]atters of which the court may take judicial notice’ are properly considered at the motion-to dismiss stage.” Hurd v. Dist. of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017).

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§ 2209, which governs the use of non-official electronic message accounts,” and further that

“[t]he White House and covered employees endeavor to comply with all relevant laws[.]” Id.

Notably, Mr. Short also stated that “[t]here has been no change in White House policy in the

areas you cite since January 20, 2017.” Id. This letter appears to confirm plaintiffs’ allegation

that neither the president, nor his staff, nor the EOP have implemented guidelines addressing

presidential records created on third-party electronic messaging platforms, including message-

deleting apps such as Confide and Signal. Compl. ¶ 101. And, once again, Defendants had the

opportunity in this case to deny the underlying conduct regarding message-deleting apps or

assert that they have put in place countermeasures to ensure PRA compliance. They did neither.

Beyond the use of message-deleting apps, the president and the White House have

demonstrated a disregard for other aspects of PRA compliance. President Trump, for example,

uses his personal Twitter account (or “handle”) to put forth his views on a range of policies and

official actions, and even appears to conduct foreign policy through his tweets. Compl. ¶¶ 66–

67. The Archivist of the United States has advised the White House that such tweets from the

president must be preserved under the PRA. Compl. ¶ 68. Nevertheless, numerous statements

made by President Trump on Twitter have been deleted, in some instances in an apparent attempt

to avoid criticism.3 Compl. ¶ 69.

Other recent reports indicate that Mr. Kushner used a private email address to conduct

government business, discrediting the White House’s previous representation to Representatives

Chaffetz and Cummings that, “There are no senior officials covered by the PRA with multiple

accounts.” Clarke Decl., Ex. A, D. In response to these revelations, Rep. Cummings wrote to

3 Defendants’ counsel has represented to Plaintiffs by letter that all the president’s Tweets are being preserved under the PRA, but Defendants have not submitted a declaration or otherwise represented that fact to the Court.

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Mr. Kushner on September 25, 2017, requesting that he preserve all official records in his

custody and provide information including email addresses used to conduct official White House

business; all emails sent or received on non-governmental accounts used to conduct official

business; and information on the private family domain. Clarke Decl., Ex. C.

During the last year, reports have also indicated that the Trump Administration is intent

on restricting public access to government information. For example, the EOP issued gag orders

prohibiting or limiting certain federal agencies from speaking to the public and the press.

Compl. ¶ 44. President Trump also reportedly required congressional staffers to sign non-

disclosure agreements in order to work on a draft executive order preventing certain travelers

from entering the United States. Compl. ¶ 45. In addition, the administration refused to make

White House visitor logs public on a regular and ongoing basis. Compl. ¶ 46.

The president has also sought to improperly prevent the creation of federal agency

records related to the implementation of certain policies, circumventing the delegation of

rulemaking authority to those agencies and the APA, FRA, and FOIA. For example, on January

27, 2017, President Trump signed Executive Order No. 13,769, “Protecting the Nation from

Foreign Terrorist Entry into the United States” (“Travel Ban EO”). Compl. ¶ 78. The Travel

Ban EO applied “immediately,” requiring, among other things, that the Secretary of Homeland

Security “immediately conduct a review to determine the information needed from any country

to adjudicate any visa, admission, or other benefit under the INA [Immigration and Nationality

Act]” and “suspend[ing] entry into the United States . . . of [aliens from countries referred to in

section 217(a)(12) of the INA] for 90 days from the date of this order[.]” Travel Ban EO § 3(a),

(c). The travel suspension was meant to “temporarily reduce investigative burdens on relevant

agencies[.]” Travel Ban EO § 3(c). Then Department of Homeland Security (“DHS”) Secretary

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John Kelly publicly stated during a press conference that individuals within DHS were involved

in drafting the Travel Ban EO. Compl. ¶ 79.

In early February, CREW filed FOIA requests with DHS, Immigrations and Customs

Enforcement (“ICE”), the Transportation Security Administration (“TSA”), Office of the

Director of National Intelligence (“ODNI”), the Department of Transportation (“DOT”), the

State Department (“DOS”), and Citizenship and Immigration Services (“USCIS”) for documents

relating to the Travel Ban EO. Ex. A to the Declaration of Noah Bookbinder, dated Nov. 3, 2017

(“Bookbinder Decl.”). 4 TSA and USCIS have both indicated that they were unable to locate any

responsive records. Bookbinder Decl., Ex. F–G. DHS and ICE shuffled CREW’s FOIA

requests among different offices. Bookbinder Decl., Ex. D–E, H–I. CREW has not received a

response from DOS or ODNI other than acknowledgements that the requests were received.

Bookbinder Decl. ¶ 13, Ex. J. CREW received no response from DOT. Bookbinder Decl. ¶ 13

All of these agencies were presumably involved in either drafting or implementing the Travel

Ban EO, yet, to date , none has produced a single record.

ARGUMENT

I. Standard of review.

When resolving a Rule 12(b)(1) motion, a court must accept all factual allegations in a

complaint as true and must draw all reasonable inferences in the plaintiff’s favor. Citizens for

Responsibility and Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 210 (D.D.C. 2009); see

also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v.

Scherer, 468 U.S. 183 (1984). Likewise, in ruling on a motion to dismiss under Rule 12(b)(6), a

4 Plaintiffs seek to supplement the record with the Bookbinder and Blanton declarations only for purposes of the Court’s analysis of Plaintiffs’ standing in this case. A court may consider material outside of the pleadings when deciding a motion to dismiss under Rule 12(b)(1). Nat’l Harbor GP, LLC v. Gov’t of D.C., 121 F. Supp. 3d 11, 17 (D.D.C. 2015).

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court must construe the complaint liberally, accepting all factual allegations in the complaint as

true and drawing all reasonable inferences in the plaintiff’s favor. Hurd v. Dist. of Columbia,

864 F.3d 671, 678 (D.C. Cir. 2017).

When deciding a Rule 12(b)(1) motion, a court may consider material outside of the

pleadings. Nat’l Harbor GP, LLC v. Gov’t of D.C., 121 F. Supp. 3d 11, 17 (D.D.C. 2015);

Boritz v. United States, 685 F. Supp. 2d 113, 117 (D.D.C. 2010) (court “may consider a

complaint ‘supplemented by undisputed facts evidenced in the record’”). However, “[i]n

determining whether a complaint fails to state a claim, the court may consider only the facts

alleged in the complaint, any documents either attached or incorporated in the complaint and

matters of which the court may take judicial notice.” Hurd, 864 F.3d at 678.

II. As presented in the complaint, Defendants’ violations of the PRA and the Take Care Clause are claims upon which relief may be granted.

Under Rule 8(a)(2), a complaint is required to set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” A Rule 12(b)(6) motion may be granted only

if the Court finds that the complaint failed to provide fair notice of the claim and the grounds

upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). Plaintiffs are not required to set forth “detailed factual allegations,” but

rather “only enough facts to state a claim to relief that is plausible on its face.” Id. at 555, 570;

accord. Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015).

A claim is “plausible on its face” if the facts pleaded allow the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged. Hurd, 864 F.3d at

678. “A claim crosses from conceivable to plausible when it contains factual allegations that, if

proved, would ‘allow the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.’” Banneker Ventures, 798 F.3d at 1129.

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A. Plaintiffs’ complaint states judicially reviewable claims under the PRA.

While Defendant’s motion does not contest the sufficiency of Plaintiffs’ factual

allegations (or deny them), it challenges the legal conclusions that flow from those facts based on

a twisted construction of Plaintiffs’ claims. Properly understood, the claims are judicially

reviewable.

First, Plaintiffs’ PRA claims (Claims One and Three) challenge the Defendants’ knowing

use of message-deleting apps that prevent the preservation of presidential records because, in the

first instance, they “prevent any reasoned consideration of whether a particular electronic

message is a presidential record that must be preserved.” Compl. ¶ 92. The complaint explains

the nature of this practice and how it prevents Defendants’ from complying with their obligations

under the PRA. Compl. ¶¶ 50–62. Message-deleting apps like Signal and Confide automatically

and instantaneously delete messages after a recipient reads them, with no independent action on

the part of the recipient and regardless of their content. Compl. ¶¶ 93–94. Confide, for example,

destroys messages as they are being read. Compl. ¶ 58. By their very nature, these apps prevent

a White House message recipient from making an initial classification decision that any

particular message is either presidential or personal.

Further, electronic messages like those sent through Confide and Signal without question

fall within the scope of the PRA. In 2014, Congress amended the statute to, among other things,

address the issue of presidents and vice presidents using “non-official electronic message

accounts.” Presidential and Federal Records Act Amendments of 2014, Pub. L. No. 113-187, §

2, 128 Stat. 2003, 2006–07 (codified at 44 U.S.C. § 2209). Congress further defined “electronic

messages” under the PRA to mean “electronic mail and other electronic messaging systems that

are used for purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2). Through

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this amendment Congress intended to “ensure that all Presidential records, even those sent from

a personal electronic messaging account, are properly preserved and maintained.” S. Rep. No.

113-218, at 4 (2014).

Plaintiffs’ complaint explains that use of these message-deleting apps contravenes the

requirements of the PRA because they usurp the critical record-keeping functions the PRA

imposes on the president, his staff, and the EOP. Faced with an instantly deleting message,

Defendants’ are unable to determine whether the message is a presidential record. And if it was

a presidential record, because it is deleted automatically and almost instantaneously it is

impossible for Defendants to segregate that presidential record from private records or preserve

and maintain that record. Compl. ¶ 93.

Second, Plaintiffs challenge Defendants’ failure to issue guidelines concerning the use of

these message-deleting apps (Claims Two and Three). As set forth in the complaint, despite

multiple reports of the use by White House staff and officials of messaging applications that

violate the PRA, Defendants have neither implemented nor enforced “any ‘guidelines,’”

choosing instead to let “third-party electronic messaging platforms [make] the ‘designation’

decision for the Defendants by deleting all communications regardless of content.” Compl. ¶

101. Since Plaintiffs filed the complaint, the White House has acknowledged it has not adopted

any new policies to address the use of text messages, encryption software, and phone-based

messaging applications. Clarke Decl., Ex. D. Whether understood as a failure to issue

guidelines or as following guidelines that improperly allow the use of messaging apps like

Confide and Signal, these practices violate the PRA.

Specific allegations in Plaintiffs’ complaint that touch on the creation, destruction, or

classification decisions related to individual records do not make Plaintiffs’ claims unjusticiable.

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Plaintiffs’ claims focus on the broader questions of whether Defendants are properly classifying

presidential records, whether they have issued guidance that conflicts with the PRA, and whether

they are using technologies that impede or preclude compliance with the their statutory

obligations. Defendants’ attempts to characterize Plaintiffs’ claims as focused on day-to-day

managerial decisions are without merit. See Def. Memo. at 13 (mischaracterizing Claim One as

an allegation that “Defendants are improperly disposing of presidential records”), 18

(mischaracterizing the PRA claims as based on an allegation that “Defendants are deleting

[presidential records] ‘wholesale’”).

Finally, Defendants challenge the viability of Plaintiffs’ PRA claims because the

complaint includes factual allegations about the destruction of presidential records, such as the

deletion of the president’s tweets and the reported purging by White House aides of “potentially

compromising information” on their phones, Compl. ¶¶ 4, 66–69, that are not subject to judicial

review. Def. Memo. at 3 n.1, 13. But even if the destruction of particular presidential records by

the president and White House staff is not directly actionable under the PRA, these facts support

a larger narrative of a White House that is flouting its record-keeping responsibilities.

B. Plaintiffs’ complaint states a judicially reviewable claim under the Take Care Clause.

Article II, Section 3 of the U.S. Constitution provides that the president “shall take Care

that the Laws be faithfully executed” (the “Take Care Clause”). The Take Care Clause requires

that the president comply with and execute the laws as enacted by Congress. It also prevents him

from ordering executive branch officials to violate the law. See, e.g., Train v. City of New York,

420 U.S. 35, 47 (1975) (president could not direct EPA Administrator to withhold validly

appropriated funds).

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Accordingly, the president may not act contrary to a validly enacted statute. The

president also may not disregard or suspend laws enacted by Congress. Train, 420 U.S. 35

(1975); Nat’l Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974). Neither can

he make the law or amend a validly enacted law. Medellin v. Texas, 552 U.S. 491, 532 (2008)

(Take Care Clause “allows the President to execute the laws, not make them”). As the Supreme

Court held in Clinton v. City of New York, the Line Item Veto Act was unconstitutional because

it effectively allowed the president to amend legislation that had been validly enacted by

Congress. 524 U.S. 417, 448 (1998). This was so even though both political branches were

aligned for, as the Court explained, “[i]f there is to be a new procedure in which the President

will play a different role in determining the final text of what may ‘become a law,’ such change

must come not by legislation, but through the amendment procedures set forth in Article V of the

Constitution.” Id. at 449. Even more so here, where they are not.

And, make no doubt, such unconstitutional conduct by the president is subject to judicial

review. See, e.g., Medellin, 552 U.S. at 1372 (determining validity of presidential

memorandum); Chamber of Commerce v. Reich, 74 F.3d 1322, 1326 (D.C. Cir. 1996) (“[A]n

independent claim of a President’s violation of the Constitution would certainly be reviewable.”).

This is unsurprising since, in general, “‘judicial review is available to one who has been injured

by an act of a government official which is in excess of his express or implied powers.’” Id. at

1327 (quoting Harmon v. Brucker, 355 U.S. 579, 581–82 (1958). Indeed, as explained by the

D.C. Circuit, “the judicial branch of the Federal Government has the constitutional duty of

requiring the executive branch to remain within the limits stated by the legislative branch.” Nat’l

Treasury Employees Union, 492 F.2d at 604. Failure to do so “not only might indicate a

disrespect for congressional legislative authority under Article I, Section 1 of the Constitution,

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but itself might be constitutionally improper.” Id. at 605; accord. Cohens v. Virginia, 19 U.S.

264, 404 (1821) (court “must take jurisdiction if it should”). This is because “judicial resolution

of the issue better enables the President to perform his constitutional duty to take care that the

laws be faithfully executed.” Nat’l Treasury Employees Union, 492 F.2d at 605.

Since taking office on January 20, 2017, President Trump has issued fifty two executive

orders. See White House Briefing Room, Presidential Actions, Executive Orders,

https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders. Executive

orders are directives or actions that the president uses to direct the executive branch and “are

generally directed to, and govern actions by, Government officials and agencies.” Staff of H.

Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations:

A Study of a Use of Presidential Powers 1 (Comm. Print 1957). However, just as with any other

presidential action, executive orders must be consistent with the laws enacted by Congress

including the APA, FRA, and FOIA, which form part of a comprehensive statutory scheme that

governs agency rulemaking and protects the rights of private persons by creating accountability

and transparency between federal agencies and the public.

Here, the complaint is sufficient to allow the Court to draw the reasonable inference that

Defendants’ actions have violated the Take Care Clause of the Constitution because their actions

with respect to some of these executive orders preclude federal agencies from complying with

the APA, the FRA, and FOIA and abrogate those agencies’ congressionally-delegated powers.

Specifically, the complaint alleges sufficient facts to reasonably infer that the procedures used by

the Defendants to issue several executive orders frustrate the congressional scheme delegating

power to and requiring judicial review of and document retention by administrative agencies, and

were undertaken for that purpose. Compl. ¶¶ 73–84. Instead of issuing an executive order that

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puts forward a directive or policy, with the agency to engage in congressionally-delegated

rulemaking to develop and implement that policy, the Trump executive orders supplant the

agency rulemaking process. Defendants thereby usurp the authority Congress delegated to

specific federal agencies, absorbing it into the EOP. Tellingly, these executive orders were

reportedly prepared “outside of the normal construct” to avoid creating a publicly accessible

paper trail. Compl. ¶ 78. The White House is apparently controlling the executive order drafting

process to avoid creating agency records that would be publicly accessible under FOIA. Compl.

¶ 73. In this way, Defendants have subverted federal laws and violated a central premise of

agency recordkeeping laws and the PRA: that federal records not be folded into the PRA to avoid

public disclosure. Armstrong II, 1 F.3d at 1292.

For example, the Travel Ban EO effectively issues new regulations that affect the rights

of individuals and implements new agency policies, but is not subject to the APA, the FRA, or

the FOIA. Compl. ¶ 78. The Travel Ban EO implemented several changes governing admission

to the United States, which supplant DHS regulations. Travel Ban EO, §§ 3(c), 5(a)–(c). DHS

was created by Congress in 2002 to, among other things, “prevent terrorist attacks within the

United States[.]” 6 U.S.C. § 111(b)(1)(A) (2012). To that end, Congress delegated power to the

Secretary of Homeland Security to “[p]revent[] the entry of terrorists and the instruments of

terrorism into the United States[,]” and to “[s]ecur[e] the borders . . . and air, land, and sea

transportation systems of the United States[.]” 6 U.S.C. § 202(1)–(2) (2012). Regulations issued

by DHS to further these objectives are subject to the public notice and comment requirements of

the APA. 6 U.S.C. § 112(e) (2012). This is because, in enacting the APA, “Congress made a

judgment that notions of fairness and informed administrative decision-making require that

agency decisions be made only after affording interested persons notice and an opportunity to

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comment.” Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979). The changes made to these

regulations by the Travel Ban EO, however, were not subject to notice and comment under APA.

Likewise, if DHS or other federal agencies had been involved in drafting and

implementing the regulation changes in the Travel Ban EO, records created by those agencies

would properly be “agency records” under the FRA and subject to immediate public access

under FOIA (barring a legitimate exception). 44 U.S.C. § 3101 (2012); 5 U.S.C. § 552(a)(3)

(2012). Instead, documents created by Defendants in the process of drafting the Travel Ban EO

are presidential records and are not accessible by the public through the FOIA until many years

from now. 44 U.S.C. § 2204(a)–(c) (2012). Congressional intent to “ensure an informed

citizenry, vital to the functioning of a democratic society, needed to check against corruption and

to hold the governors accountable to the governed” is thus being thwarted. NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978).

This is not an abstract concern. Defendants have used the way in which the Travel Ban

EO regulation changes were promulgated as a defense to discovery in litigation challenging that

executive order. Although those same records would form the basis of a court’s review of

agency action, see, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)

(review must be based “on the full administrative record that was before the Secretary at the time

he made his decision”), in litigation challenging the Travel Ban EO, Defendants have objected

that discovery into “the Executive’s discretionary national security and immigration authority” is

“inappropriate[,]” because such discovery would “invite impermissible intrusion on Executive

Branch deliberations, which are constitutionally ‘privileged’ against such inquiry[.]”5 See e.g.,

5 A court may take judicial notice of facts contained in public records of other proceedings and of a formal position of the U.S. Government. Al-Aulaqi, 35 F. Supp. 3d at 67; Fed. R. Evid. 201(b).

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Ali v. Trump, Dkt. No. 17-00135 (W.D. Wash., Mar. 28, 2017), ECF. No. 82 at 3–4; accord.

Arab Am. Civil Rights League v. Trump, Dkt. No. 17-10310 (E.D. Mich. July 6, 2017), ECF No.

115 at 6–7; Washington v. Trump, Dkt. No. 17-00141 (W.D. Wash. Apr. 5, 2017), ECF No. 177

at 5–6. These objections would not apply in an APA challenge to DHS regulations.

The Defendants’ arguments urging dismissal of Plaintiff’s Take Care claim

fundamentally misstate its nature. Plaintiffs do not challenge the substantive validity of any

particular executive order, even the Travel Ban EO. Instead, Plaintiffs are challenging a broader

pattern and course of conduct that appears focused on hiding information from the public and

usurping federal agencies’ congressionally-delegated functions. The president may not ignore

congressional delegations of agency power. Nor may he ignore the FOIA, the FRA, or the APA.

He may also not undermine the purposes of any of those statutes. Thus, Defendants’ arguments

that the Plaintiffs have not identified a specific executive order and that the FOIA, FRA, and

APA do not prohibit the conduct alleged entirely miss the mark. Plaintiffs’ argument is not that

the FOIA, FRA, or APA prohibit the president’s conduct, but rather that his actions intentionally

frustrate those laws by precluding agencies from complying with them. Accordingly, Plaintiffs

agree that this claim is not properly brought under the FOIA, the FRA, or the APA. This suit

cannot be a challenge to agency action under those statutes because Defendants have made it

impossible for the agencies to act consistently with those laws.

Neither do Plaintiffs merely allege that the president failed to comply with a federal

statute. Def. Memo. at 28 (citing Dalton v. Spencer, 511 U.S. 462 (1994)). As the D.C. Circuit

explained in Chamber of Commerce, “Dalton’s holding merely stands for the proposition that

when a statute entrusts a discrete specific decision to the President and contains no limitations on

the President’s exercise of that authority, judicial review of an abuse of discretion claim is not

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available.” 74 F.3d at 1331. “Dalton is inapposite where the claim instead is that the

presidential action—not one, it should be added, even contemplated by Congress—

independently violates . . . a statute that delegates no authority to the President” to commit the

allegedly unlawful act. 74 F.3d at 1332. Here, Plaintiffs do not allege that the president has

committed an abuse of discretion. Rather, Plaintiffs claim is that the president’s actions violate

statutes that have delegated no discretionary authority to him. Neither the FOIA, FRA, nor PRA

delegate authority to the president to disregard those laws or exempt agencies from complying

with their provisions.

Defendants also argue that this Court lacks jurisdiction over Plaintiffs’ claim because

“‘there is a textually demonstrable constitutional commitment of the issue to a coordinate

political department” or because of “a lack of judicially discoverable and manageable standards

for resolving it.’” Def. Memo. at 29 (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)

(internal quotation marks and citation omitted)). Not surprisingly, Defendants do not explain the

constitutional commitment they reference, as there is no portion of the Constitution that gives the

executive branch exclusive authority to determine the accountability and transparency

requirements that can be imposed on itself or administrative agencies. And Nixon is inapposite.

That case involved the question of whether the Senate’s compliance with the Impeachment Trial

Clause, Article 1, section 3, cl. 6, was subject to judicial review. Nixon, 506 U.S. at 226.

Finding it sufficiently vague, the Supreme Court held that it lacked a standard to review. Id. at

230. But the Court blessed judicial review over, as here, “either legislative or executive action

that transgresses identifiable textual limits.” Id. at 238.

More apt is the D.C. Circuit’s decision in Chamber of Commerce v. Reich, where the

plaintiffs sought declaratory and injunctive relief against the Secretary of Labor’s enforcement of

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President Clinton’s Executive Order 12,954. 74 F.3d 1322 (D.C. Cir. 1996). The plaintiffs in

that case argued that the executive order at issue was unlawful because it was contrary to a

validly enacted statute and the Constitution. In finding the case subject to judicial review and,

ultimately, invalidating the executive order, the court explained that it had “never held that a lack

of a statutory cause of action is per se a bar to judicial review.” 74 F.3d at 1326. To the

contrary, the court stated that there is a “general presumption of reviewability” of the legality of

executive action. Id. at 1327. Here, the APA, the FRA, and the FOIA, together with the

authority delegated by Congress to administrative agencies, constitute identifiable limits on the

power of the president. By violating those laws he has failed to “take Care that the Laws be

faithfully executed.” U.S. Const. art. II, § 3.

III. CREW and the Archive have standing in this case because they are unable to currently access federal agency records relating to executive orders and there is a very real risk that presidential records have been and will continue to be destroyed.

To show it has met constitutional standing requirements, a plaintiff must demonstrate: (1)

that it has suffered an injury in fact, which is the invasion of a legally protected interest that is (a)

concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that

there is a causal connection between the injury and the conduct at issue, such that the injury is

fairly traceable to the challenged act; and (3) that it is likely, as opposed to speculative, that the

injury will be redressed by a favorable decision. Center for Biological Diversity v.

Environmental Protection Agency, 861 F.3d 174, 182 (D.C. Cir. 2017). When seeking

prospective relief, a plaintiff must also allege an ongoing or future injury, Arpaio v. Obama, 797

F.3d 11, 19 (D.C. Cir. 2015), where an allegation of future injury means “a likelihood of future

violations of [its] rights . . . not simply future effects from past violations.” Cheney, 593 F.

Supp. 2d at 225 (quoting Fair Employment Council of Greater Washington, Inc. v. BMC

Marketing Corp., 28 F.3d 1268, 1273 (D.C. Cir. 1994)). A plaintiff may rely on an alleged

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future injury “if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that

the harm will occur.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (quoting

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 414, n. 5 (2013)). In cases with multiple

plaintiffs, standing need be shown for only one plaintiff. Americans for Safe Access v. Drug

Enforcement Administration, 706 F.3d 438, 443 (D.C. Cir. 2013).

Defendants challenge the standing of CREW and the Archive solely on the basis they

have failed to plead certainly impending injury. Def. Memo. at 8–11. Defendants do not deny

that CREW and the Archive have met every other element required to show standing. As

demonstrated below and by the declarations submitted with this brief, CREW and the Archive do

indeed have standing to bring each of the claims in their complaint because they have suffered

and will continue to suffer injury from Defendants’ actions.

A. Plaintiffs’ allegations and supporting declarations demonstrate that they have suffered and continue to suffer injuries caused by Defendants’ noncompliance with the PRA.

Defendants’ use of message-deleting apps that preclude preservation of presidential

records have injured and will continue to injure CREW and the Archive. These apps delete

records before the recipients can decide whether such records are presidential records and before

the president can take the steps required by the PRA to preserve them. See Compl. ¶¶ 86–98.

Plaintiffs also are injured by Defendants’ past and ongoing failure to issue guidelines concerning

the use of message-deleting apps because, as Plaintiffs have alleged, that failure is leading to the

wholesale loss of presidential records in violation of the PRA. See Compl. ¶¶ 99–102.

The complaint alleges that Defendants’ failure to comply with the PRA will cause CREW

and the Archive a significant injury because “access to and the ability to view presidential

records are essential to fulfill their core missions.” Compl. ¶ 12. Defendants’ destruction of

presidential records “deprives, and will continue to deprive, the Plaintiffs of eventual access to

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the documentary history of this presidency.” Compl. ¶ 12. Those allegations are supported by

the declarations of Noah Bookbinder and Thomas S. Blanton, which show that both CREW and

the Archive have made and plan to make further FOIA requests for materials related to the

Trump Administration, including presidential records. Those requests are consistent with both

Plaintiffs’ prior and current practices. CREW has a longstanding interest in the adequacy of

recordkeeping by the executive branch, has brought multiple lawsuits to ensure proper

recordkeeping, and has published a report on the failures of the George W. Bush administration

to properly preserve records. Bookbinder Decl. ¶¶ 4–6, 16, 18–25, 28–31. CREW also routinely

files FOIA requests to obtain information about the government, including over 130 requests to

the Trump Administration so far, many of which are still pending. Bookbinder Decl. ¶¶ 7–8.

CREW also uses the FOIA to gain information about whether government officials are

complying with ethics obligations. Bookbinder Decl. ¶¶ 14–16. To the extent the documents

sought during the Trump Administration are presidential records not subject to the FOIA, CREW

plans to obtain such records when they later become available pursuant to the PRA. Bookbinder

Decl. ¶¶ 17, 25–27.

Archive staff routinely publish books and other publications of, relating to, or based on,

presidential records acquired through the FOIA. Declaration of Thomas S. Blanton , dated Nov.

3, 2017, ¶¶ 4–5 (“Blanton Decl.”). In previous projects, they have used documents acquired

from every existing presidential library. Blanton Decl. ¶ 5. Archive staff plan to file requests

with the Trump Presidential Library as soon as they are legally permitted, with anticipated topics

of such requests including U.S. relations with Russia and China, U.S. military action in Africa,

and the nuclear escalation between North Korea and the United States. Blanton Decl. ¶ 11. Any

future publications with respect to such topics will require access to a set of, as complete as

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possible, presidential and federal agency records. Blanton Decl. ¶ 6. The Archive also has a

longstanding interest in presidential recordkeeping and has brought several lawsuits against

presidential administrations to prevent the destruction of government records. Blanton Decl. ¶¶

7–9. These include the seminal PRA cases Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991)

(“Armstrong I”) and Armstrong II.

A court in this district already has found a plaintiff to have standing in a case very similar

to this one. In CREW v. Cheney, the plaintiffs alleged that Vice President Cheney, the Executive

Office of the Vice President, and the EOP had improperly excluded records from the PRA, and

accordingly, the plaintiffs sought declaratory judgment or a writ of mandamus. 593 F. Supp. 2d

at 199. The court determined that one of the plaintiffs, Stanley Kutler, had established standing

because, as set forth in a declaration, he had authored numerous publications about American

presidents, using in part the records of former presidents and vice presidents; he planned to

research Vice President Cheney’s advocacy of the “unitary theory” of government, for which he

would need to review the vice president’s emails with staff, as well as other papers; and because,

without access to the vice president’s records, it would be impossible for him to do his research

and give a full scholarly account of his subjects. Id. at 226–27 (citing Pls.’ Reply to Defs.’

Opp’n to Pls.’ Mot. for PI, Ex. 1 P 1). The court found Mr. Kutler’s declaration and associated

allegations “sufficient to establish that Professor Kutler has sought PRA records in the past and

unambiguously intends to do so again in the future.” Id. at 227. The court further found that

destruction of the records would cause him injury when he sought them in the future. Id. at 227.

Here, both the Archive and CREW have submitted declarations showing that they

previously sought and used presidential records and intend to do so in the future. Bookbinder

Decl. ¶¶ 18, 21–27; Blanton Decl. ¶¶ 4–5, 11. Also, the destruction of those records would

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injure the Archive and CREW, who would then be unable to access such records for their

research and publishing. Bookbinder Decl. ¶¶ 19, 23, 27–31; Blanton Decl. ¶ 6. Rather than

being “a highly attenuated chain of possibilities,” Clapper, 568 U.S. at 410, the destruction of

presidential documents will definitely cause clear injury to CREW and the Archive, who will be

unable to review records that Defendants fail to preserve. If the records at issue are not

preserved, “then no speculation is needed to determine what will happen when Professor Kutler

seeks to use them in his future research—they will be unavailable.” Cheney, 593 F. Supp. 2d at

227. Plaintiffs are not required to wait until “records are actually destroyed in order for [their]

claimed injuries to become concrete and imminent.” Id.

Defendants nevertheless argue that CREW and the Archive must allege “a specific intent

to submit a particular FOIA request” and must identify “specific Presidential records (or

categories of records)” that will be the subject of such requests. Def. Memo. at 10–11.

Plaintiffs’ declarations do identify categories of records they anticipate seeking once such

records are made available to the public. This satisfies their burden on standing. See Cheney,

593 F. Supp. 2d at 228. Given that such records will not be available to the public until five

years after President Trump leaves office at the earliest, Defendants’ suggestion that CREW and

the Archive must be able to allege with specificity the particular records they will seek today is

patently ridiculous and contrary to decisions from this district. If CREW and the Archive,

plaintiffs with heightened interests in the preservation of presidential records, are deemed not to

have standing to challenge Defendants’ noncompliance with the PRA, it is unclear who would.

B. Plaintiffs allegations and supporting declarations demonstrate current and ongoing injury related to their claims under the Take Care Clause of the Constitution.

Defendants’ use of “executive orders to transform what would otherwise be federal

records into presidential records” has deprived Plaintiffs of access to federal records under the

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FOIA. Compl. ¶¶ 109–120. Defendants’ continuing misuse of the executive order process to

shield federal records from public access will likewise continue to prevent CREW and the

Archive from obtaining federal records relating to executive orders through the FOIA. An

inability to obtain information that the FOIA requires be made public constitutes injury in fact

for standing purposes. Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998).

For example, CREW has been denied access to federal records relating to the Travel Ban

EO. Bookbinder Decl. ¶¶ 9–10. CREW submitted FOIA requests to CIS, ICE, FAA, DHS,

DOT, and TSA, for records relating to the Travel Ban EO. Bookbinder Decl. ¶ 9. These

agencies should have been involved in the drafting and implementation of the rule changes set

out in the Travel Ban EO. Bookbinder Decl. ¶ 9. In fact, the then Secretary of Homeland

Security publicly announced that his agency was involved. Compl. ¶ 79. As a result, documents

created and maintained by these agencies should properly be considered federal records.

However, the recipient agencies have either denied CREW’s FOIA requests on the basis that no

such records exist, subject to a Kafkaesque shuffling from FOIA office to FOIA office, or simply

failed to respond. Bookbinder Decl. ¶¶ 10–13. In particular, USCIS and TSA responded that

they were unable to locate any records related to the Travel Ban EO. Bookbinder Decl. ¶12, Ex.

F–G. This is because the Defendants have improperly used the PRA to shield agency records

from the purview of FOIA. Thus, through the Defendants’ actions, CREW has been deprived of

access to federal records relating to the Travel Ban EO.

Moreover, Defendants have given no indication that they intend to stop using the

executive order process for this purpose. As a result, CREW and the Archive have been denied,

and will continue to be denied, access to other records that otherwise would be publicly

accessible through the FOIA. CREW’s mission is to “protect[] the right of citizens to be

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informed about the activities of government officials and to ensur[e] the integrity of government

officials.” Compl. ¶ 9. CREW relies upon access to agency records in order to fulfill its

mission. Compl. ¶ 12. Similarly, the Archive engages in investigative journalism and other

functions that require access to agency records. Compl. ¶¶ 11–12. Defendants’ use of the PRA

to prevent Plaintiffs from accessing agency records therefore constitutes an actual injury in fact

that is still ongoing, thus meeting the standing requirements. See Arpaio, 797 F.3d at 19.

In their brief, Defendants misconstrue Plaintiffs’ Take Care claim as a simple complaint

that specific FOIA requests have turned up empty. This is not the case. As explained in supra

Section II.B, Plaintiffs have alleged that the president has violated the Take Care Clause by

subverting the transparency and accountability requirements Congress established in the FOIA

and the APA that were intended to check the massive delegation of power from Congress to

executive agencies. Accordingly, Defendants’ suggestion that the proper recourse is for

Plaintiffs to file FOIA requests, which would turn up empty precisely because of Defendants’

alleged unlawful conduct, is meritless.

IV. Plaintiffs’ claims are not barred by Armstrong I or any other precedent.

Congress enacted the PRA in 1978, following a protracted legal battle between the

United States and President Nixon over his ability to control the records of his presidency after

leaving office. The PRA, which first took effect on January 20, 1981, directs the president to

“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 constitutional, statutory, or other official

or ceremonial duties are adequately documented and that such records are preserved and

maintained as Presidential records[.]” 44 U.S.C. § 2203(a) (2012). The PRA specifies that

“[t]he United States shall reserve and retain complete ownership, possession and control of

Presidential records[.]” 44 U.S.C. § 2202 (2012). As the House Report on the PRA explains, the

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statute was intended to ensure both “the preservation of the historical record of the future

Presidencies” and “public access to the materials” that was “consistent under standards fixed in

law.” H.R. Rep, No. 95-1487, 95th Cong., 2d Sess. § 2 (1978).

The statute defines “presidential records” very broadly, recognizing that “a great number

of 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 his official or

ceremonial duties.” H.R. Rep. No. 95-1487, 95th Cong., 2d Sess. §§ 11–12. Congress

considered “few” of the president’s activities to be “truly private and unrelated to the

performance of his duties,” Id. § 12, and the statutory definition of “presidential records”

reflects this breadth:

documentary materials . . . created or received by the President, his immediate staff, or a unit or individual in the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

44 U.S.C. § 2201(2) (2012). The FRA governs records of components of the EOP that do not

advise or assist the president.

The legislative history of the PRA explains that its intent was to guard against the very

conduct this lawsuit challenges and to protect the interests of individuals and entities such as

plaintiffs here. The PRA was intended to “promote the creation of the fullest possible

documentary record” of a president and insure its preservation for “scholars, journalists,

researchers and citizens of our own and future generations.” 124 Cong. Rec. 34,894 (daily ed.

Oct. 10, 1978) (statement of Rep. John A. Brademas). Indeed, part of the concern Congress had

in the wake of Watergate was the possibility that “[e]vidence vital to ongoing criminal

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investigations could have been permanently lost.” 124 Cong. Rec. 36,845 (daily ed. Oct. 13,

1978) (statement of Sen. Charles H. Percy).

Contrary to the separation of powers arguments raised by the government in this case, the

PRA enjoyed the support of the president at the time. See The Presidential Records Act of 1978:

Hearing on S. 3494 Before the Comm. on Gov’t Affairs 95th Cong. 5 (1978) (testimony of Jay

W. Solomon, Administrator, General Services Administration on Behalf of President Jimmy

Carter) (reading letter from President Carter stating “It is my belief that the official papers and

other historical materials produced during the Administration of a President represent an

important part of our nation’s history. Such materials should be permanently preserved and

should be made available for historical review.”). The PRA also reflected the input of many

components of the Executive, including the White House, the Department of State, the

Department of Defense, the Department of Justice, the Librarian of Congress, and the Archivist.

See 124 Cong. Rec. 36,845 (daily ed. Oct. 13, 1978) (statement of Sen. Charles H. Percy).

Based on an unduly narrow construction of the PRA and the case law interpreting that

statute, Defendants advance the sweeping argument that courts can hear virtually no PRA claims,

including those of Plaintiffs, leaving the president and EOP free to ignore, if not flout, the law.

Defendants’ arguments find no support in the D.C. Circuit’s decisions in Armstrong I, Armstrong

II, or opinions from other courts in this district, by advocating for an executive that is beyond the

reach of Congress and the courts. Their arguments draw no force from precedent, which, far

from closing off review, has recognized the ability of courts to review an expanding universe of

PRA challenges that logically extends to Plaintiffs’ challenges here.

In Armstrong I, the D.C. Circuit addressed the interplay between the PRA and the FRA

and the degree to which courts could review a president’s decisions and actions under each

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statute. The court concluded that with respect to the PRA, Congress intended to preclude

judicial review “of the president’s general compliance with the PRA”—albeit by implication, not

expressly—because such review “would substantially upset Congress’ carefully crafted balance”

between a president’s “control of records creation, management, and disposal” while in office

and “public ownership and access to the records” once a president leaves office. 924 F.2d at 291

(emphasis added). Left unanswered, however, was the breadth of the preclusion for issues

involving a president’s “general compliance with the PRA.”

Two years later, the D.C. Circuit narrowed and further explained the scope of this

preclusion in Armstrong II, when it held that “courts are accorded the power to review guidelines

outlining what is, and what is not, a ‘presidential record’ under the terms of the PRA.” 1 F.3d at

1290. In reaching this conclusion, the court expressly declined to construe its earlier decision in

Armstrong I as “stand[ing] for the unequivocal proposition that all decisions made pursuant to

the PRA are immune from judicial review,” id. at 1293, and eschewed an interpretation of the

PRA that would deprive courts of the ability to review “the initial classification of materials as

presidential records.” Id. at 1294.

Although the D.C. Circuit has not revisited this issue since Armstrong II, several courts in

this district have addressed the meaning and scope of the Armstrong decisions as applied to

judicial review of PRA claims. In CREW v. Cheney, Judge Kollar-Kotelly characterized

CREW’s claim that the vice president had adopted policies and guidelines that excluded most of

his records from the reach of the PRA as “squarely within the types of claims . . . that are subject

to judicial review” under Armstrong II. 593 F. Supp. 2d at 217. Notably, she rejected as

“untenable” the government’s position—asserted here as well—that she should confine

Armstrong II to its facts, reasoning that to do so would “eviscerat[e] its precedential value.” Id.

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at 215. Judge Kollar-Kotelly also stressed that “[t]he distinction between Armstrong I and

Armstrong II, according to the D.C. Circuit, was the type of conduct the plaintiffs were seeking

to challenge, not the vehicle by which plaintiffs were challenging it.” Id.

Similarly, in American Historical Ass’n v. Peterson, the court rejected the government’s

claim that Armstrong I and Armstrong II made unreviewable “discretionary Presidential

decisions alleged to be in excess of statutory authority[.]” 876 F. Supp. 1300, 1313 (D.D.C.

1995) (internal quotation marks omitted). As the court observed, “Armstrong I and Armstrong II

do not mark the beginning and end of the complicated inquiry regarding judicial review under

the PRA[.]” Id. at 1314. Although American Historical Ass’n raised the issue of whether the

court could review under the PRA a president’s disposal decision after he left office—an issue

not presented here—its more expansive interpretation of judicial review generally under the PRA

compels a similar interpretation in this case. See Cheney, 593 F. Supp. 2d at 216 contra. Def.

Memo. at 19–20.

Far from affording Armstrong I the narrowest construction, each of these courts expanded

the scope of judicial review under the PRA to maintain the careful balance Congress struck

between a president’s right to control decisions about the creation, management, and disposal of

his or her records while in office, and the public’s right to a complete historical record of a

president’s actions and decisions upon leaving office. The practices at issue here fall within the

arc of these decisions. Specifically, Defendants’ uncontested use of communications practices

that knowingly prevent the president and his staff from making a threshold classification

decision about whether a particular communication is a presidential record that must be

preserved and their failure to issue guidelines concerning these practices directly impede the

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rights the PRA affords the public, and fall within the category of “classification decisions”

subject to judicial review.

As set forth in the complaint, Signal and Confide automatically and instantaneously

delete electronic messages after a recipient reads them, with no independent action on the part of

the recipient and regardless of their content. Compl. ¶¶ 93–94. In other words, they rob the

recipients of the ability to classify the messages as presidential or personal and to treat them

accordingly. Judicial review of this unlawful practice is, therefore, a logical extension of the

courts’ decisions in Armstrong II and its progeny, which distinguished as unreviewable, creation,

management, and disposition decisions as opposed to “the initial classification of materials as

presidential records,” Armstrong II, 1 F.3d at 1294, which is subject to judicial review.

Here, too, that Plaintiffs “are not pursuing FOIA or FRA claims,” and do not challenge

guidelines that directly implicate those statutes, Def. Memo. at 15, does not shield Defendants’

actions from judicial review where those actions effectively represent an end-run around the

PRA’s core provisions. As the legislative history makes clear, “[d]efining the types of

documentary materials falling within the ambit of either ‘presidential’ or ‘personal’ records is of

primary importance to the act.” H.R. No. 95-1487, 95th Cong., 2d Sess. § 11 (1978). Plaintiffs’

claims seek to give full effect to this purpose.

The PRA’s definitional provisions reinforce this conclusion. The D.C. Circuit in

Armstrong II explained:

A ‘creation’ decision refers to the determination to make a record documenting presidential activities . . . ‘Management decisions’ describes the day-to-day process by which presidential records are maintained . . . Finally, ‘disposal decisions’ describes the process outlined in 44 U.S.C. § 2203(c)–(e) for disposing of presidential records. Judicial review of the President’s action under these provisions is . . . unavailable.

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1 F.3d at 1294 (citations omitted); accord. Cheney, 593 F. Supp.2d at 214. As applied here, the

use of Confide and Signal constitutes neither a “creation” nor a “management” decision. Rather

these apps function completely independently from the decision of a sender to create an email

communication, and they prevent altogether any day-to-day management of the communication

as their very use (and indeed their very purpose) ensures no record will remain to be managed.

Finally, use of these apps does not represent a “disposal decision,” as they ensure destruction in

all cases with no thought involved whatsoever.

None of the other cases Defendants cite alter this conclusion. Although the court opined

in Judicial Watch, Inc. v. NARA that the holding in Armstrong II was narrower than its language

suggests, 845 F. Supp. 2d 288, 297 (D.D.C. 2012), this observation was pure dicta as the case

was decided on redressability grounds with the court concluding the requested relief was not

available under the PRA. Id. at 298–99. CREW v. Cheney, by contrast, sets forth an extended

analysis of the D.C. Circuit precedent, and explains how immunizing decisions that negate the

PRA’s purpose from judicial review “‘borders on the absurd[.]’” 593 F. Supp. 2d at 216

(quoting Am. Historical Ass’n, 876 F. Supp. at 1315). Here, too, it “borders on the absurd” to

conclude Congress passed a statute to protect our national history, but left presidents with

unfettered discretion to ignore the statute at will, and immunized their actions from all judicial

review.

Defendants’ arguments to the contrary reflect a fundamental misunderstanding of

Plaintiffs’ claims. As explained, Plaintiffs do not challenge the “improper[] disposi[tion] of

presidential records,” Def. Memo at 13, nor does their claim start and stop with the “wholesale”

destruction of presidential records. Id. at 18. Rather, Plaintiffs challenge the use of a new

technology that prevents a message recipient from classifying a record as presidential in the first

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place. Plaintiffs also do not challenge “‘the President’s general compliance with the PRA.’”

Def. Memo. at 13 (quoting Armstrong I,924 F.2d at 291). To the contrary, Plaintiffs challenge

the specific use by Defendants of communications practices that “usurp all the critical record-

keeping functions the PRA imposes on the President, his staff and the EOP[.]” Compl. ¶ 93. As

such, Plaintiffs’ claims represent the flip side of Armstrong II and CREW v. Cheney, as Plaintiffs

are challenging Defendants’ use of messaging apps that prevent Defendants from making a

classification decision in the first instance, and are challenging the Defendants’ failure to issue

guidelines concerning the use of message-deleting apps that otherwise prevent such a decision.6

Under the logic of this precedent, both sets of issues are properly subject to review under the

PRA. A contrary conclusion would allow Defendants to evade judicial review simply by

refraining from issuing or rescinding guidelines implementing the PRA; basically, by hiding

from a known problem.

Defendants also contort the meaning of post-Armstrong I decisions to argue for the

president’s “unfettered control” over all aspects of his records and records management, Def.

Memo. at 15, even if it results in a White House that recklessly and knowingly flouts the PRA’s

statutory commands and deprives the public of the historical record to which it is due. To get

there, Defendants start from the same narrow construction of Armstrong I that multiple courts

have rejected, namely that it precludes judicial review of all the president’s recordkeeping

practices and decisions. Def. Memo. at 13 (citing Armstrong I, 924 F.2d at 291). In Armstrong

II, however, the D.C. Circuit expressly rejected this construction, explaining that “[t]he

6 Defendants attempt to escape the impact of CREW v. Cheney by arguing “plaintiffs do not challenge any guidelines[.]” Def. Memo. at 18. But Plaintiffs do challenge the failure of the president, his staff, and the EOP to issue guidelines concerning the use of message-deleting apps like Confide and Signal. Compl. ¶¶ 101–02.

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Armstrong I opinion does not stand for the unequivocal proposition that all decisions made

pursuant to the PRA are immune from judicial review.” 1 F.3d at 1293 (emphasis added).

Not only is Defendants’ construction incompatible with the D.C. Circuit’s own

interpretation of its rulings, but it contravenes the animating principle behind the statute. The

legislative history of the PRA explains that the Act was intended to guard against the very

conduct at issue here and to protect the interests of entities like Plaintiffs. Congress enacted the

PRA to “promote the creation of the fullest possible documentary record” of a president and

ensure its preservation for “scholars, journalists, researchers and citizens of our own and future

generations,”7 124 Cong. Rec. 34,894 (daily ed. Oct. 10, 1978) (statement of Rep. John A.

Brademas), recognizing the “immense historical value” of a president’s records. 124 Cong. Rec.

36,843 (daily ed. Oct. 13, 1978) (statement of Sen. Charles H. Percy). One of the Act’s co-

sponsors, Rep. John A, Brademas, explained:

[T]he past may not be the surest guide to the future, but neither can we in Government afford to ignore its lessons altogether. And essential to understanding the past is access to the historical record, to the documents and other materials that are produced in the course of governing and shed light on the decisions and decisionmaking processes of earlier years.

124 Cong. Rec. 34,894 (daily ed. Oct. 10, 1978). Accepting Defendants’ position here would

undermine these goals by allowing the president to use technology that ensures no record is

created in the first place, depriving the public, historians, journalists, and watchdog groups like

Plaintiffs of a piece of our history.

Finally, Defendants’ interpretation of the PRA would mark the beginning of the end for

the PRA’s utility in the face of ever-changing technology. To be sure, the advent of messaging

apps like Confide and Signal that foreclose any opportunity to classify a message under the PRA

7 The Supreme Court recognized the legitimacy of these interests in Nixon v. Administrator when it upheld the constitutionality of the predecessor law to the PRA. 433 U.S. 425, 452 (1977).

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present new factual challenges that no court has yet addressed. And Congress, in enacting the

PRA, could not have envisioned a technology akin to “reverse invisible ink” that destroys a

record upon contact with the recipient. But these novelties do not justify a hands-off approach,

especially when insulating from judicial review all aspects of the president’s compliance with the

PRA would leave the president and his staff free to ignore the PRA entirely. Technology will

continue to occupy our workplaces, but it should not stymie judicial review of presidential

actions that thwart one of the fundamental tenets of the PRA.

V. The Court has the power to issue the relief sought by Plaintiffs.

Plaintiffs seek mandamus relief under 28 U.S.C. § 1361, which gives district courts

“original jurisdiction of any action in the nature of a mandamus,” as well as declaratory relief

under 28 U.S.C. § 2201 for Defendants’ violations of the PRA and the Take Care Clause. Both

forms of relief may properly issue from the Court in this case.8

A. Plaintiffs state a valid claim for mandamus relief because Defendants have failed to comply with their ministerial duties under the PRA.

Plaintiffs’ request for a “writ of mandamus and injunctive relief ordering the president,

his staff, and the EOP to comply with their mandatory, non-discretionary duties under the PRA,

and the president’s obligations under the take-care clause,” Compl. ¶ 108, meets the well-

established standards for such relief.9 The writ of mandamus sought by Plaintiffs would simply

8 In the portion of their memorandum addressing the relief available to Plaintiffs, Defendants rely again on their assertion that Plaintiffs’ PRA claims are not justiciable. For the reasons explained in Section II.A, supra, the claims advanced in this case are consistent with those that the D.C. Circuit ruled were justiciable in Armstrong II. 1 F.3d at 1294. 9 As the government acknowledges, a court may issue mandamus where “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” Council of & for the Blind of Del. Cnty. Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983); see also Cheney, 593 F. Supp. 2d at 219 (same). “Even when the legal requirements for mandamus jurisdiction have been satisfied, however, a court may grant relief only when it finds ‘compelling . . . equitable grounds.’” In re Medicare

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require Defendants to perform their ministerial duty to issue classification guidelines that are

consistent with the PRA. As members of the public with particularly well-established interests

in the proper classification of presidential records, Plaintiffs have alleged facts that demonstrate a

clear right to relief, that there is no other remedy available, and that the Court’s exercise of

mandamus jurisdiction would be equitable. Contrary to the government’s assertions that

mandamus relief risks violating the constitutional separation of powers, Plaintiffs’ prayers for

relief in fact represent an attempt to uphold that very principle.

1. Defendants have violated their ministerial obligations under the PRA.

The PRA imposes an affirmative obligation on the president to 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 constitutional, statutory, or other official or ceremonial duties

are adequately documented and that such records are preserved and maintained as Presidential

records pursuant to the requirements of this section and other provisions of law.” 44 U.S.C. §

2203(a); see also Compl. ¶¶ 89–90. The PRA further requires that the president categorize

records as either presidential or personal, 44 U.S.C. § 2203(b), based on a statutorily-imposed

definitions of what are presidential and personal records. 44 U.S.C. § 2201(2)–(3); see also

Cheney, 593 F. Supp. 2d at 220. The PRA does not afford the president discretion to destroy

records as he sees fit. See 44 U.S.C. § 2203(c)–(f) (describing the processes by which records

may be destroyed); Cheney, 593 F. Supp. 2d at 220 (“The PRA also requires the [president] to

take steps to assure that [presidential] records, as they are defined in the PRA, are appropriately

maintained and preserved.”); see also Compl. ¶ 95. As laid out in the Section II.A, Plaintiffs

Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (quoting 13th Reg’l Corp. v. U.S. Dep’t of the Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)).

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have pleaded facts demonstrating violations of these duties. See also Compl. ¶¶ 87, 93–97, 101,

110–19.

The classification obligations the PRA creates are ministerial. Cheney, 593 F. Supp. 2d

at 218. Although the court there considered those obligations as they apply to the vice president,

the analysis applies equally to the president: “the PRA provides a definition for [the president’s]

records and requires the [president] to preserve them, . . . the [president] has a ministerial

obligation to preserve [presidential] Records as they are defined in the PRA.” Id. at 220. If it is

not a ministerial duty to issue and implement guidelines that define what a presidential record is,

then Cheney’s holding that there is a ministerial duty to issue classification guidelines is

meaningless.

That even classification decisions under the PRA may require some interpretation and

application is entirely consistent with Cheney’s logic, controlling precedent, and no bar here. In

Nat’l Treasury Employees Union v. Nixon, , the D.C. Circuit engaged in lengthy statutory

analysis of the Federal Pay Comparability Act, 5 U.S.C. § 5301 et seq. (1970), considering the

statute’s text and legislative history before determining that Congress had imposed a ministerial

duty on the president to adjust federal pay scales in October 1972. 492 F.2d 587, 600 (D.C. Cir.

1974). The court defended this approach by quoting from Roberts v. U.S. ex rel. Valentine, 176

U.S. 221 (1900), in which the Supreme Court explained,

Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law directs him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires, in some degree a construction of its language by the officer. Unless this be so, the value of this writ is very greatly impaired.

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Nat’l Treasury Employees Union, 492 F.2d at 602 (quoting Roberts, 176 U.S. at 231). Thus, to

the extent that the government is claiming any ambiguity in the PRA concerning the scope of the

Defendants’ duties at issue here, the Court must interpret the PRA before determining whether

Defendants’ duties under it are ministerial.

2. Defendants’ PRA duties are owed to the public, including Plaintiffs.

The government correctly asserts that Defendants’ duties under the PRA are owed to the

public, see Def. Memo. at 26, but makes the remarkable claim that “[t]he mandamus statute does

not permit a plaintiff to vindicate duties owed to the general public.” Id. This assertion has no

basis in case law, legislative history, or logic, and ignores the fact that CREW and the Archive,

are as much members of “the public” as any other (just perhaps more interested ones).

Neither are particular members of the public foreclosed from seeking mandamus relief

for a ministerial duty owed to “the public” at large. The government’s citation, Def. Memo. at

26, to Armstrong I, for this premise, merely captures the court’s acknowledgement of Congress’

intent that there be public ownership and access to presidential records; that opinion does not

discuss or even mention the standards for mandamus relief. See 924 F.2d at 290; Def. Memo. at

26. The citation to Marbury v. Madison simply proves that there may have been a ministerial

duty owed to the Plaintiff in that case—not that a statutory requirement cannot be interpreted to

impose a ministerial duty on public officials vis-à-vis “the public.” See Def. Memo. at 25.

The legislative history marshalled by the government fares no better. The testimony of

Deputy Attorney General Byron White simply states that mandamus relief should not apply to

the discretionary acts of federal officers. Def. Memo. at 26 (quoting S. Rep. No. 87-1992 (1962)

(“We think it essential that the section . . . specifically limit its exercise to ministerial duties

owed to the plaintiff. Should the language be applied to discretionary acts of Federal officers,

the judicial branch would be invading the executive or legislative function in violation of the

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doctrine of the separation of powers.”) (emphasis added)). White’s statement is true, but it

speaks to the unavailability of mandamus relief for discretionary acts, not whether particular

members of the public may seek mandamus relief for ministerial acts. This literal reading of his

testimony is consistent with the other evidence the government cites. The Senate’s rejection of

an amendment to 28 U.S.C. § 1361 that would have made mandamus relief available to enforce

“a duty owed to the plaintiff or to make a decision in any matter involving the exercise of

discretion” merely demonstrates that the Senate rejected mandamus relief for non-discretionary

acts. Def. Memo. at 26 (quoting S. Rep. No. 87-1992 (1962) (emphasis added)).

The Court should therefore reject out-of-hand the government’s attempt to foreclose

mandamus relief for ministerial duties owed to the public because no particular member of the

public has a right to bring a claim to enforce the right. This Orwellian result would directly

undermine Congress’ intent to make presidential records public property through the PRA.

3. Mandamus relief requiring Defendants to comply with their ministerial duties under the PRA would not raise any separation of power concerns

By failing to issue guidelines that comply with the ministerial duties required of them by

the PRA and then claiming that failure may not be challenged in court, Defendants are claiming

extraordinary authority to decide which laws, if any, apply to them. But if it is “emphatically the

province and duty of the judicial department to say what the law is,” Marbury, 5 U.S. at 177,

courts must be able to distinguish between actual interference with the executive functions of a

president and hollow invocations of “separation of powers” that are deployed by the president to

excuse his conduct. Since Plaintiffs’ claim for mandamus relief simply require the president to

issue and maintain guidelines that are consistent with the congressional mandate reflected in the

PRA, the imposition of mandamus relief in this case would be fully consistent with the

constitutional separation of powers, not a violation of it.

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Enforcing Defendants’ obligations under the PRA does not require the Court to enjoin the

president’s discharge of executive or political functions—the legitimate interest that underlies

true “separation of powers” concerns. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982);

Clinton v. Jones, 520 U.S. 681, 703 (1997). Instead, the duties imposed on Defendants by the

PRA are straightforward, non-discretionary, and do not infringe on the president’s core

constitutional responsibilities. Mandating that Defendants comply with these duties would

require minimal interference by the Court with the executive function.

Contrary to the Defendants’ assertions, such relief is available, even if it is used

sparingly. In Mississippi v. Johnson, 71 U.S. 475, 501 (1867), the Supreme Court left open the

question of whether injunctive relief against the president in his official capacity was available,

but has since upheld such relief on several occasions, including United States v. Nixon, 418 U.S.

683 (1974) and Boumediene v. Bush, 553 U.S. 723 (2008). In accordance with those decisions,

the D.C. Circuit held in Nat’l Treasury Employees Union v. Nixon, that it had jurisdiction “to

support the issuance of a writ of mandamus directing the President to effectuate the pay raise

sought by plaintiff”, even though it ultimately opted to impose declaratory relief instead. 492

F.2d at 616; cf. Franklin v. Massachusetts, 505 U.S. 788, 803 (1992) (“For purposes of

establishing standing, however, we need not decide whether injunctive relief against the

President was appropriate, because we conclude that the injury alleged is likely to be redressed

by declaratory relief against the Secretary alone.”).10 Even if the Court were reluctant to issue

mandamus relief (especially if it considered declaratory relief likely to prove effective), that is

10 These cases, all of which involved claims for injunctive relief against a president, stand in stark contrast with Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010), in which the government finds its dicta that “‘courts do not have jurisdiction to enjoin’ the President .” Def. Memo. at 27.

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not a basis for dismissing Plaintiffs’ claim at this stage. See Franklin, 505 U.S. at 803; Freedom

Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 31 (D.D.C. 2011).

B. Plaintiffs have raised valid claims for declaratory relief.

Declaratory judgments are available in federal court “(1) in disputes involving an actual

case or controversy; (2) where the issue is actual and adversarial; and (3) when the action is not

merely a medium for securing an advisory opinion.” Comm. On Judic. v. Miers, 558 F. Supp. 2d

53, 80 (D.D.C. 2008) (citing Coffman v. Breeze Corp., 323 U.S. 316 (1945)). Further, the

Declaratory Judgment Act (“DJA”) “should be liberally construed to achieve the objectives of

the declaratory remedy.” Id. at 82. Defendants assert that Claims One, Two, and Four

“inappropriately” invoke the Declaratory Judgment Act, because that act does not create a cause

of action. Def. Memo. at 20–21. But this argument relies on the premise that Plaintiffs do not

have causes of action under the PRA and the mandamus statute, which is wrong as set out above

at supra Sections IV and V.A. And because Claim Four is rooted in the Constitution, no further

cause of action is required. See Miers, 558 F. Supp. 2d at 80 (“[W]here the Constitution is the

source of the right allegedly violated, no other source of a right—or independent cause of

action—need be identified”).11

CREW and the Archive have satisfied the conditions set out in the text of the DJA itself.

This is a “case of actual controversy within [this Court’s] jurisdiction,” and Plaintiffs have filed

the “appropriate pleading” seeking a declaration relating to their “rights and other legal

relations[.]” 28 U.S.C. § 2201(a) (2012). Further, this Court has jurisdiction to hear the case

11 This is because, even if a particular statute does not permit review of a president’s actions, they can still be reviewed for constitutionality. Franklin, 505 U.S. at 801. Indeed, as the government has admitted in other cases, “an independent claim of a President’s violation of the Constitution would certainly be reviewable.” See, e.g., Chamber of Commerce, 74 F.3d at 1326– 28 (“[W]e have never held that a lack of a statutory cause of action is per se a bar to judicial review”).

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pursuant to 28 U.S.C. § 1331. Defendants’ argument to the contrary stems from their premise

that no review is permitted under the PRA which, again, is incorrect. Accordingly, because

CREW and the Archive have properly alleged violations of the PRA by Defendants, and these

violations are reviewable and justiciable by this Court, the PRA provides a cause of action for

which declaratory judgment is an appropriate remedy. Further, as the Defendants admit in their

brief, the mandamus statute provides a cause of action sufficient for declaratory relief. Def.

Memo at 22; see also Cheney, 593 F. Supp. 2d at 222 (“Where a plaintiff advances a legally

cognizable claim for mandamus, the plaintiff necessarily also advances a cause of action on

which declaratory relief may lie.”). Thus, while the DJA may12 not create an independent source

of subject matter jurisdiction, as long as subject matter jurisdiction exists under the Mandamus

Act, the Court can “utilize the tool of declaratory relief.” Id. (quoting Nat’l Treasury Employees

Union, 492 F.2d at 616).

CONCLUSION

The motion to dismiss should be denied. Plaintiffs’ Claims One, Two, and Three are

justiciable because they relate to the Defendants’ disregard of the PRA, rather than day-to-day

management decisions under the statute. Plaintiffs’ Claim Four is subject to judicial review

because it relates to the constitutional validity of the president’s actions. Plaintiffs have standing

to bring these claims because the Defendants’ are destroying presidential records that are

essential to Plaintiffs’ work and organizational missions and unlawfully thwarting public access

to records relating to executive orders. A declaratory judgment and writ of mandamus are

appropriate remedies for these claims. Declaratory judgment is available because Plaintiffs have

12 Although there are cases that appear to conclude that the DJA “does not create a cause of action,” Def. Memo. 20–21, the better authority indicates that “the wording of the statute does not indicate that any independent cause of action is required to invoke the DJA.” Miers, 558 F. Supp. 2d at 80.

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both statutory and constitutional causes of action. In addition, mandamus is appropriate because

the Defendants’ obligations under the PRA to categorize and preserve presidential records are

non-discretionary ministerial duties.

Respectfully submitted,

BAKER & MCKENZIE LLP CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

/s/ George M. Clarke III______/s/ Anne L. Weismann______George M. Clarke III, D.C. Bar No. 480073 Anne L. Weismann, D.C. Bar No. 298190 Mireille R. Oldak, D.C. Bar No. 1027998 Conor M. Shaw, D.C. Bar No. 1032074 815 Connecticut Avenue, N.W. 455 Massachusetts Ave., N.W., Sixth Floor Washington, D.C. 20006 Washington, D.C. 20001 Phone: (202) 835-6184 Phone: (202) 408-5565 Fax: (202) 416-7184 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]

/s/ Angela C. Vigil______Angela C. Vigil, Pro Hac Vice 1111 Brickell Avenue, Suite 1700 Miami, FL 33131 Phone: (305) 789-8904 Email: [email protected]

/s/ Katie Marcusse______Katie Marcusse, Pro Hac Vice 100 New Bridge Street London EC4V 6JA United Kingdom Phone: 44 20 7919 1508 Email: [email protected]

Counsel for Plaintiffs

Dated: November 3, 2017

JA141 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 144 of 269 THE IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and NATIONAL SECURITY ARCHIVE, CaseNo. Plaintiffs, 1:17-CV-01228 Hon. Christopher R. Cooper

OF THEHON. DONALD J. TRUMP andTHE THEEXECUTIVE OFFICE PRESIDENT,

Defendants. v.

OF DECLARATION THOMAS S. BLANTON

I, Thomas S. Blanton, declare as follows:of

I am the Executive Director the National Security Archive (the Archive) at 1. George Washington University in Washington, D.C.of I have served in this capacity since 1992.

Prior to that I was the Archive's first director Planning and Research beginning in 1986 until

1989, when I became the Deputy Director.

2. The Archive is an independent, non-governmental, non-profit research institute

founded in 1985 by journalists and scholars to check rising government secrecy. The Archive of collects, analyzes, and publishes U.S. government documents acquired through the Freedom

Information Act (FOIA) in order to enrich scholarship and journalism with primary sources, and

to promote openness and government accountability. The Archive won the 1999 George Polk of of citation- Award, one U.S. journalism's most prestigious prizes, for - in the words the of "piercing self-serving veils government secrecy, guiding journalistsin search for the truth, and

informingus all."

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3. Since its founding, the Archive has filed over 1,240 FOIA and declassification

review requests with the Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan,

· Clinton, and H.W. Bush Presidential Libraries. The documents released in response to these

requests have illuminated United States foreign policy and national security history since the

Second World War. Specifically, the documents the Archive has acquired fromof these

presidential libraries have shed light on the Cuban Missile Crisis, the origins the Vietnam

War, President Richard Nixon's opening to China, communications between the Soviet Union War and the United States throughout the Cold War and as the Cold ended, and the U.S. role

during the human rights atrocities in the former Yugoslavia and Rwanda.

4. Along with my wife Dr. Svetlanaof Savranskaya, who is a senior fellow with the of Archive, I have published two books presidential documents from the Reagan and H.W. Bush

libraries combined with others from Soviet archives. One volume analyzed the fall the Berlin

Wall 1989 (published by Central European University Press in 2010), and the other in of documented and analyzed the Reagan and Bush superpower summits with then-Soviet leader by Mikhail Gorbachev (published CEU Press in 20 16). That first book, Masterpieces History:

The Peaceful End oftlze Cold War Europe. 1989, co-authored with Dr. Savranskaya and Dr. in Vladislav Zubok, won the ArthurS. Link-Warren Kuehl Prize for Documentary Editing ofthe of F. Society for Historians American Foreign Relations.

5. Other Archive staff have published numerous books and reference works based

on documents from presidential libraries. They include Dr. William Burr, an Archive senior

analyst, who published Henry Kissinger's meeting and telephone transcripts with Presidents of Nixon and Ford, and a book on President Nixon's "madman" theory pressure on Vietnam. of Peter Kombluh, director the Archive's Cuba and Chile Documentation Projects, won the

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Douglas Dillon Award for the best book on diplomacy for his book Back Channel to Cuba,

which discusses how every president dating back to Dwight Eisenhower secretly negotiated with

Fidel Castro. Malcolm Byrne, who runs the Archive's Iran project, has interviewed all the

negotiators of the recent Iran nuclear deal, and acquired documents from every presidential

library on U.S.-Iran relations, for a future book. Joyce Battle, director of the Archive's Iraq

Documentation Project, has just published the first in a series of reference collections of

documents on the Iraq War, this one covering the decision to invade in 2003. Her subsequent

publications will cover the occupation, the "surge," and the rise of ISIS. Kate Doyle, a senior

analyst with the Archive, has published numerous articles on U.S.-Mexico relations, especially at

the presidential level, and focusing on arguments and negotiations over migration and the drug

wars. Dr. John Prados, a senior fellow of the Archive, has published more than a dozen books on

presidential decision-making and war-making, including Presidents' Secret Wars and most

recently, The Ghosts of Langley.

6. Continued access to a full historical record of each modem presidency is critical

to the Archive's work. As outlined above, the Archive's scholars and historians rely extensively

on presidential records, and have actively pursued access to and utilized those records.

7. The Archive has a longstanding interest in presidential recordkeeping and the

special challenges presented by new digital technologies. For example, the Archive brought the

first lawsuit seeking to preserve White House e-mail from the Reagan administration, Armstrong

et. al. v. Reagan, when we learned in January 1989 that neither the Reagan White House nor the

National Archives and Records Administration planned to preserve the e-mail back-up tapes that

had provided evidence for the Iran-contra investigations. Our lawsuit successfully obtained an

immediate restraining order on the last night of the Reagan administration against destruction of

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the back-up tapes, and led to a series of judicial rulings during the Bush 41 and Clinton

administrations - all captioned with the last name of the Archive's founding director, Scott

Armstrong- that established govemme tal e-mails as records under the Federal Records Act and

the Presidential Records Act.

8. My 1995 book, White House E-Mail: The Top Secret Computer Messages the

Reagan/Bush White House Tried to Destroy, told the history of the e-mail lawsuits and published

an annotated selection of 500 of the most historically valuable actual e-mail messages that the

litigation preserved. The New York Times (November 26, 1995) commented that the book

presented "a stream of insights into past American policy, spiced with depictions of White House

officials in poses they would never adopt for a formal portrait."

9. The Archive also brought White House e-mail litigation in September 2007

against President George W. Bush, when whistleblowers cited in a Freedom of Information Act

case by CREW alleged failures in White House preservation of e-mails. After CREW joined

with the Archive in this new case, the plaintiffs won in 2009 the restoration of 94 calendar days

worth of White House e-mail from back-up tapes, producing some 22 million more e-mail

messages than the government was able to find prior to the lawsuit.

10. In my role as Executive Director of the Archive, I oversee and am familiar with

the Archive's research, litigation, publishing and public education efforts.

11. Our plans for future projects include filing requests with the Trump Presidential

Library as soon as we are legally permitted on a range of topics. I anticipate those topics will

include U.S. relations with Russia and China, U.S. military action in Africa, the role of foreign

lobbyists, and the nuclear escalation between North Korea and the United States.

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I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Dated: November 3, 2017 THOMAS S. BLANTON

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and NATIONAL SECURITY ARCHIVE,

Plaintiffs, Case No. 1:1 7-CV-01228 Hon. Christopher R. Cooper V.

THE HON. DONALD J. TRUMP and THE EXECUTIVE OFFICE OF THE PRESIDENT,

Defendants.

DECLARATION OF NOAH BOOKBINDER

I, Noah D. Bookbinder, declare as follows:

1. I am the Executive Director of Citizens for Responsibility and Ethics in

Washington ("CREW"), a Plaintiff in the above-captioned action. I have served as Executive

Director of CREW since March 23, 2015.

2. CREW is a nonprofit, non-partisan organization founded in 2002 that works on behalf of the public to foster an ethical and accountable government. CREW is committed to protecting the right of citizens to be informed about the activities of government officials and to ensuring the integrity of government officials. To advance its mission, CREW uses a combination of research, litigation, advocacy, and public education to enforce ethics laws and regulations and to disseminate information to the public about public officials and their actions.

3. In my role as Executive Director of CREW, I oversee and am familiar with

CREW' s research, litigation, advocacy, and public education efforts.

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4. CREW has a longstanding interest in the adequacy of recordkeeping by the executive branch, including compliance by the White House with its responsibilities under the

Presidential Records Act. For example, in 2007, CREW brought a lawsuit against the Executive

Office of the President ("EOP"), the Office of Administ ration, Alan Swendiman (the Head of the

Office of Administration), the National Archives and Records Administration, and Dr. Allen

Weinstein (the Archivist of the United States), challenging their knowing failure to recover, restore, and preserve millions of electronic communications created and/or received within the

White House. See Citizens for Responsibility & Ethics in Washington v. Exec. Office of

President, 587 F. Supp. 2d 48 (D.D.C. 2008). CREW litigated this case for three years until its resolution in 2010.

5. Similarly, in 2008, CREW sued Vice President Richard Cheney, EOP, the

Executive Office of the Vice President, the National Archives and Records Administration, and

Dr. Allen Weinstein (the Archivist of the United States), for unlawfully limiting the scope of vice presidential records subject to the Presidential Records Act (PRA). See Citizens for

Responsibility & Ethics in Washington v. Cheney, 593 F. Supp. 2d 194 (D.D.C. 2009).

6. CREW also brought the instant lawsuit to compel the President and the EOP to comply with their obligations under the FOIA, the PRA, and the Federal Records Act.

7. In addition to litigation, CREW files requests under the Freedom of Information

Act ("FOIA") to obtain information about the government critical to its mission and purpose.

CREW disseminates the documents it receives to these requests on its website, www.citizens forethics.org, and uses those records as the basis for reports, complaints, litigation, or other publications.

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8. Since the start of the Trump Administration, CREW has submitted over 130 requests under the Freedom of Information Act ("FOIA") on a wide variety of subjects. Many of

CREW's FOIA requests are still pending.

9. Several of CREW's FOIA requests have sought documents that originated in the

White House. Among other topics, CREW has filed FOIA requests seeking to learn the extent to which the White House consulted with relevant agencies before issuing an executive order on

January 27, 2017, Protecting the Nation from Foreign Terrorist Entry into the United States (the

"immigration travel ban"). On February 3, 2017, CREW submitted a FOIA request to the

Citizenship and Immigration Services, the Immigration and Customs Enforcement, the Federal

Aviation Administration, Department of Homeland Security, the Department of Transportation, and the Transportation Security Administration, for copies of communications from anyone within or acting on behalf of the EOP concerning the immigration travel ban. As CREW explained in its requests, the requested records would shed light on the role, if any, that agencies played in the development of the immigration travel ban and the extent to which those agencies were provided an opportunity to review and weigh in on the executive order before President

Trump issued it. On February 6, 2017 , CREW filed identical FOIA requests with the Office of the Director of National Intelligence and the State Department. True and correct copies of

CREW's FOIA requests are attached as Exhibit A.

10. By letters dated February 13, 2017, the Department of Homeland Security acknowledged that it had received FOIA requests from CREW for documents sent to or from staff of Citizenship and Immigration Services and the Transportation Security Administration. A true and correct copy of this acknowledgement is attached as Exhibit B. However, CREW never made these particular requests to the Department of Homeland Security. The Transportation

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Security Administration separately acknowledged receipt of CREW's FOIA request by letter dated February 22, 2017. A true and co1Tect copy of this acknowledgement is attached as

Exhibit C.

11. By letter dated March 28, 2017, Immigration and Customs Enforcement stated that it was forwarding CREW' s FOIA request to the Department of Homeland Security FOIA office. A true and co1Tect copy of this letter is attached as Exhibit D. The Department of

Homeland Security responded by letter dated October 19, 2017, stating that Immigration and

Customs Enforcement was the proper office to respond to CREW's request and closing the request with the Department of Homeland Security. A true and correct copy of this letter is attached as Exhibit E.

12. On August 22, 2017, CREW received a response to its February 3, 2017 FOIA request from Citizenship and Immigration Services stating that "[a]fter completing its search for records and reviewing the records compiled, we have determined that users did not create records nor does it have custody and control over records that may be responsive." A true and correct copy of this letter is attached as Exhibit F. By letter dated June 28, 2017, the

Transportation Security Administration also responded to CREW's FOIA request, stating that its

"search failed to produce any records responsive to your request." A true and correct copy of this letter is attached as Exhibit G.

13. By letter dated October 17, 2017, the Department of Homeland Security indicated that Citizenship and Immigration Services was the proper office to respond to requests for documents sent to or from Citizenship and Immigration Services staff and that it was closing

CREW's request. A true and correct copy of this letter is attached as Exhibit H. The

Department of Homeland Security also indi cated, in a letter dated October 16, 2017, that the

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Transportation Security Administration was the proper office to respond to requests for documents sent to or from staff of the Transportation Security Administration and that it was closing CREW's request. A true and correct copy of this letter is attached as Exhibit I. The

Department of Homeland Security never responded to CREW' s request for documents sent to or from staff of the Department of Homeland Security. To date, CREW has not received a response from Office of the Director of National Intelligence or the State Department other than acknowledgements that the requests were received. True and correct copy of these acknowledgements are attached as Exhibit J. CREW received no response from the Department of Transportation.

14. CREW has also used the FOIA to ascertain whether this administration has issued guidance for the White House on ethics and recordkeeping responsibilities. For instance , on

February 10, 2017, CREW submitted a FOIA request to the Office of Management and Budget for records of: "(l) all policies, procedures, and communications issued since January 20, 2017, relating to ethics standards, restrictions, and/or obligations for any employee of the Executive

Office of the President ("EOP"); (2) all policies, procedures, and communications issued since

January 20, 2017, relating to recordkeeping responsibilities for any employee of the EOP; and

(3) all policies, procedures, and communications related to the use of personal and/or non governmental email accounts to conduct official EOP business." As CREW explained in its

FOIA request, the records requested would "shed light on the extent to which White House employees , including those at 0 MB, have been provided guidance on their ethical and recordkeeping responsibilities."

15. CREW has also used the FOIA to gather information about current White House officials that pe11ains to their compliance with ethics requirements. Toward this end, on June 23,

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2017, CREW submitted a FOIA request to the Office of Governmental Ethics ("OGE") for

"copies of the applications for Certificates of Divestiture submitted by the White House to OGE on behalf of Jared Kushner, Ivanka Trump, and their children." CREW's FOIA request was intended to shed light on whether Mr. Kushner and Ms. Trump had divested of interests that might conflict with their responsibilities in the White House. OGE made this information public in response to another FOIA request.

16. In addition, CREW has used the FOIA to shed light on those individuals and entities that are attempting to influence the President in the formulation of policy - information that White House visitor records would reflect. Toward that end, CREW submitted FOIA requests on July 19, 2017, to the Secret Service seeking copies ofrecords of presidential visitors to Mar-a-Lago, in Florida, and the Trump National Golf Club in Bedminster, New Jersey. As

CREW explained in its requests, the requested records would help inform the public about the outside influences that the President is subject to at these properties. Beyond a single document pertaining to a well-publicized visit to Mar-a-Lago by the Japanese Prime Minister, the Secret

Service has refused to produce any other of the requested documents, claiming the requested documents are all presidential records and therefore not subject to the FOIA.

17. To the extent that these and other FOIA requests yield no responsive documents because of unlawful or unconstitutional actions taken by the President and the EOP, CREW is deprived of critical information it needs to fulfill its central mission.

18. CREW will continue its practice of submitting FOIA requests for documents from executive branch agencies on matters that relate to CREW's ongoing research, litigation, advocacy, and public education efforts. To the extent that CREW is unable to obtain certain

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records through FOIA requests during this administration, CREW plans to seek to obtain records

when they become publicly available pursuant to the PRA.

19. For those reasons, and for the reasons explained in greater detail below, CREW

also has an interest in Defendants' preservation ofrecords pursuant to their obligations under the

PRA. The PRA defines presidential records, requires them to be preserved, and makes them

subject to FOIA requests at the earliest five years after a president leaves office. For this reason,

CREW may be unable to file a request for the presidential records of the current administration

for at least eight years.

20. Nonetheless, CREW's ongoing efforts to enforce ethical norms and responsible

government depend in part on an accurate and complete historical record of this and previous

administrations. Improper classification of records today- including those that are the result of

unlawful or incomplete guidance from the President-could result in the loss of presidential

records forever.

21. CREW has a longstanding interest in ensuring that the presidential records of this

administration are preserved in a manner that is consistent with the PRA, as evidenced by

CREW's 2007 litigation of whether the EOP's Office of Administration is an agency subject to the FOIA; a 2010 report entitled "WITHOUT A TRACE: The Story Behind the Missing White

House E-Mails and the Violations of the Presidential Records Act"; and a 2015 FOIA request to the George W. Bush Presidential Library seeking the production of presidential records.

22. In 2007, CREW filed suit against the EOP's Office of Administration (OA) over two FOIA requests seeking records relating to the potential loss of e-mail records of the EOP.

See Citizens for Responsibility & Ethics in Washington v. Office ofAdmin., 559 F. Supp. 2d 9

(D.D.C. 2008), affd, 566 F.3d 2 I 9 (D.C. Cir. 2009). This litigation implicated the PRA in three

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respects. First, the documents at issue in the case would have shed light on potential noncompliance with the document preservation requirements of the PRA. Second, one of the central legal issues in the case was whether the OA was in fact an agency subject to the FOIA or whether CREW's only option would be to seek the same documents through use of the PRA.

Third, to support its argument that the OA was an agency subject to FOIA, CREW relied in part on the presidential records of President Jimmy Carter. See Ex. A. (ECF 26-2), Citizens for

Responsibility & Ethics in Washington v. Office of Admin., No. 1:07-cv-00964-CKK (Sept. 26,

2007).

23. In 2010, CREW published a 54-page report entitled "WITHOUT A TRACE: The

Story Behind the Missing White House E-Mails and the Violations of the Presidential Records

Act" ("Without a Trace"). See https://s3.amazonaws.com/storage.citizensforethics.or g/wp content/uploads/2016/07/20021509/CREW Report Bush White House Email Untold Stories. pdf Without a Trace was based on a review of tens of thousands of pages of Bush-era documents. The report demonstrated that top White House officials knew about the ongoing problems with the email archiving system, but repeatedly refused to take coITective action.

Without a Trace further demonstrated that those failures to address the email archiving system led to the destruction of presidential records that might one day have shed light on critical events that occuITed during in the Bush administration.

24. In 2017, CREW also submitted a FOIA request for presidential records with the

George W. Bush Presidential Library. The request sought all records of communications between August 1, 2015 and February 1, 2017 between the White House and Republican

Members of the House that refeITed, mentioned, or pertained to then-Representative Mark Foley.

The George W. Bush Presidential Library acknowledged receipt of CREW's request and stated

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that it had identified approximately 1945 pages and 9362 electronic files of potentially responsive records for processing.

25. Thus, CREW has previously used presidential records to fulfil multiple aspects of its mission. CREW has relied on presidential records in litigation that clarified whether a component of the EOP was subject to the FOIA or to the PRA, published a lengthy report on the

George W. Bush White House's noncompliance with the PRA, and exercised its right to seek presidential records from a previous administration under the PRA and the FOIA.

26. Based on CREW's previous interest in the PRA and the issues raised by the complaint in the above-captioned case, I anticipate CREW will have an ongoing interest in the current administration's compliance with the PRA (as well as the compliance of future administrations). I also anticipate that CREW will have an ongoing interest in obtaining records produced by the President and the White House through either the FOIA or the PRA.

27. CREW has a particular interest in the decisions that President Trump and his staff have made concerning potential or actual conflicts of interests involving the President, his staff, and senior members of this administration. I also anticipate CREW will seek to obtain records relating to those actual or potential conflicts when they become available to CREW, either under the FOIA or the PRA. To the extent that Defendants are not complying with their responsibilities under the PRA, CREW will be harmed in its ability to fully evaluate the

President's and this administration's compliance with ethics rules and norms and to provide accurate historical context when CREW engages in future litigation and public education. To the extent that Defendants are not complying with their responsibilities under the PRA, CREW's future ability to advocate for ethically-sound legislative solutions and executive branch practices will be harmed.

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28. CREW has additional, immediate interests in the simple fact of whether the

President and the EOP are complying with the PRA.

29. First, to the extent that the President and the EOP have issued guidance that improperly classifies ce1iain documents as presidential records (instead of agency records),

CREW is unable to obtain those documents by submitting FOIA requests to agencies. Improper classification of records under the PRA could delay CREW' s ability to request improperly classified records for at least eight years-assuming the relevant records are in fact preserved.

30. Second, to the extent that certain records are not preserved because certain forms of communications are not subject to guidance that is consistent with the PRA, CREW suffers harm because it irrevocably loses access to those records. Although CREW may not be able to confirm the loss of those records for years, the damage to the historical record occurs at the moment records are not preserved, whether that is due to the lack of a classification guidance or the existence of an unlawful one.

31. Third, if the President and the EOP supplant ordinary agency policymaking processes with White House processes, the President prevents CREW from obtaining documents related to those actions through FOIA requests, thereby thwarting the transparency and accountability that Congress intended would accompany its delegation of power to executive branch agencies. Unlawful subversion of the transparency and accountability requirements that

Congress has mandated agencies follow could delay CREW's ability to request improperly classified records for at least eight years- assuming the relevant records are in fact preserved.

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. di~ Noah D. Bookbinder Dated: November ~ . 2017

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Exhibit A

1 JA158 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 161 of 269 CREW citizens _for. respon~ibility Iand ethtcs tn washtngton February 3, 2017

BY EMAIL: [email protected]

FOIA Officer U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office P.O. Box 648010

Re: Expedited Freedom of Information Act Request

Dear FOIA Officer:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this expedited request for records pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, and Department of Homeland Security ("DHS") regulations.

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from any staff of the U.S. Citizenship and Immigration Services ("USCIS") concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications the domain EOP.gov. using

Please search for responsive records regardless of format, medium, or physical characteristics. We seek records of any kind, including paper records, electronic audiotapes records, , videotapes, photographs, data, and graphical material.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions ofthe requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non exempt, and how the material is dispersed throughout the document. See Mead US. Dep Data Central v. 't ofthe Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and DHS regulations, CREW requests a waiver of fees associated with processing this request for records. The subject of this request

JA159 455 Massachusetts J Avenue, N.W., 6th Floor, Washington, D.C . 20001 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 162 of 269 FOIA Officer February 3, 2017 Page 2

concerns the operations of the federal government, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported , on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 That same evening, President Trump replaced the acting director of U.S. Immigration and Customs 4 Enforcement ("ICE").

The requested records would shed light on the role, if any, DHS and its component USCIS played in the White House's development of the immigration travel ban and the extent to which DHS was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies, including DHS, were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available at https://www.washingtonpos t.com/news/post- politics/wp/2017/01/29/unnamed-white-house-official-on-imp lementing-travel-ban-it-really-is-a-massive-success story/?hpid=hp rhp-top-table-main pp-whbrief-1135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 ( available at cnn.com/2017/01/28/politics/donald- trump -ban/) . 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan . 31, 2017) ( available at https://www. bostonglobe.com/news /politics/2017/01/30/read-full-white-house-statement-sally-yates/HkFReIYJidU9deDelPK 6SM/story.htm]). 4 Press Release, Department of Homeland Security, " Statement From Secretary Kelly on the President' s Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 ( available at https://www.dhs.gov /news /2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homan -acting-ice-director).

JA160 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 163 of 269 FOIA Officer February 3, 2017 Page 3

responsive to this request and to share its analysis with or other means. the public through reports In addition, CREW will disseminate , press releases, to the public any documents it acquires through its website, www.citizensforethics.org from this request , release of information obtained and through www.scribd.com through this request is . The not in CREW's financial interest. CREW further requests that it not be charged search or pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) review fees for this request media. because CREW qualifies as See Nat '! Sec. Archive v. US. a member of the news Dep 't ofDefense , 880 F.2d (holding non-profit a "representative 1381 , 1386 (D.C. Cir. 1989) ofthe news media" and broadly include "any person or organization interpreting the term to which regularly publishes public"). Courts have or disseminates information deemed other non-profit organizations to the comparable to CREW with functions and 's "representatives ofthe missions 125 F. Supp. news media." See, e.g., Cause 3d 145 (D.D.C. 2015); Judicial ofAction v. IRS, 2d Watch, Inc. v. US. D 52, 53-54 (D.D.C. 2000) (self-described ep 't ofJustice , 133 F. Supp. "public interest law requester). firm" qualified as a news media

CREW routinely and systematically disseminates ways. CREW's information to the public website receives tens of thousands in several includes of page views every month a blog that reports on and analyzes . The website ethics, newsworthy developments corruption, and money in politics, regarding government educate as well as numerous reports the public about these issues. CREW has published to In addition, CREW posts under the FOIA at www.scribd.com all of the documents it receives , and those documents have thousands of times. been visited hundreds of

Under these circumstances, CREW satisfies fully the criteria for a fee waiver. Request for Expedition CREW also requests expedition of this request Pursuant to DHS pursuant to 6 C.P.R. §§ 5.5(e)(ii) regulations, CREW has submitted and (iv). Director ofFOIA its request for expedition to Operations because the subject the DHS Senior and exceptional of this request concerns a media interest that raises matter of widespread that questions affecting the public request is enclosed. 's confidence; a copy of

CREW also is entitled to expedition because actual or alleged of the urgency to inform the federal government. As demonstrated public about an disseminating above, CREW is primarily information. As also discussed engaged in public above, the requested records about the extent to which USCIS seek to inform the has been consulted on implementation of the immigration the meaning, scope, and executive order, a matter and persistent questions of grave concern given the that have been raised publicly serious effectiveness. about the order's legality and

Based on the foregoing, CREW request. satisfies the requirements for expedited processing of this

JA161 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 164 of 269 FOIA Officer February 3, 2017 Page 4

Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records , please contact me at (202) 408-5565 or [email protected]. Also , if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Where possible, please produce records in electronic format. Please send the requested records to me either at [email protected] or at Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, 455 Massachusetts Ave., N.W., 6th Floor, Washington, D.C. 20001. Thank you for your assistance in this matter.

Sincerely,

e L. Weismann ChiefFOIA Counsel

Encl.

JA162JA092U

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 165 of 269 citizens for responsibility CREWI and ethics in washington

February 3, 2017

BY EMAIL: [email protected]

FOIA Officer U.S. Immigrations and Customs Enforcement Freedom of Information Act Office 500 12th Street, S.W., STOP-0655 Washington, D.C. 20536-5009

Re: Expedited Freedom of Information Act Request

Dear FOIA Officer:

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from anyone on the staff of the U.S. Immigrations and Customs Enforcement ("ICE"), concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.·

Please search for responsive records regardless of format, medium, or physical characteristics. We seek records of any kind, including paper records, electronic records, audiotapes, videotapes, photographs, data, and graphical material.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). Ifit isyour position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non exempt, and how the material is dispersed throughout the document. See Mead Data Central v. US. Dep't of the Air Force, 566 F.2d 242,261 (D.C. Cir. 1977).

455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 \ 202.408.5565 phone \ 202.588.5020 lax \ www.citizensforethics.org

JA163 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 166 of 269 FOIA Officer February 3, 2017 Page2

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and DHS regulations, CREW requests a waiver offees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation ofthe order provoked widespread international and domestic opposition, including a number oflawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope. 1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful. 3 That same evening, President Trump replaced the acting director ofiCE.4

The requested records would shed light on the role, if any, ICE played in the White House's development of the immigration travel ban and the extent to which ICE was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies, including DHS and components like ICE, were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

CREW is a non-profit corporation, organized under section 501 ( c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available at httos://www.washingtonpost.com/news/post politics/wo/20 I 7/0 1/29/unnamed-white-house-official-on-implementing-travel-ban-it-really-is-a-massive-success storvl?hpid~hp rhp-top-table-main pp-whbrief-113 5pm%3Ahomepage%2Fstory&utm term~. 894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 (available at cnn.com/2017/01/28/politics/donald-trump-ban/). 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) (available at https://www. bostonglobe.com/news/politics/20 17/0 1/30/read-full-white-house-statement-sally-yates/HkFReiYJidU9deDelPK 6SM/story.htrul). 4 Press Release, Department of Homeland Security, "Statement From Secretary Kelly on the President's Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 (available at https://www.dhs.gov/news /20 17/01/3 0/statement-secretarv-kelly-presidents-appointruent-thomas-d-homan-acting-ice-director).

JA164JA092JA092W

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 167 of 269

FOIA Officer February 3, 2017 Page 3 of government officials, to ensuring the integrity of those officials, and to highlighting and working to reduce the influence of money on politics. CREW uses a combination of research, litigation, and advocacy to advance its mission. CREW intends to analyze the information responsive to this request and to share its analysis with the public through reports, press releases, or other means. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www.citizensforethics.org, and through www.scribd.com. The release of information obtained through this request is not in CREW's financial interest.

CREW further requests that it not be charged search or review fees for this request pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) because CREW qualifies as a member of the news media. See Nat'! Sec. Archive v. US. Dep't of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (holding non-profit a "representative of the news media" and broadly interpreting the term to include "any person or organization which regularly publishes or disseminates information to the public"). Courts have deemed other non-profit organizations with functions and missions comparable to CREW's "representatives of the news media." See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.D.C. 2015); Judicial Watch, Inc. v. US. Dep't of Justice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (self-described "public interest law firm" qualified as a news media requester).

CREW routinely and systematically disseminates information to the public in several ways. CREW's website receives tens of thousands of page views every month. The website includes a blog that reports on and analyzes newsworthy developments regarding government ethics, corruption, and money in politics, as well as numerous reports CREW has published to educate the public about these issues. In addition, CREW posts all of the documents it receives under the FOIA at www.scribd.com, and those documents have been visited hundreds of thousands of times.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 6 C.F.R. §§ 5.5(e)(ii) and (iv). Pursuant to DHS regulations, CREW has submitted its request for expedition to the DHS Senior Director ofFOIA Operations because the subject of this request concerns a matter of widespread and exceptional media interest that raises questions affecting the public's confidence; a copy of that request is enclosed.

CREW also is entitled to expedition because of the urgency to inform the public about an actual or alleged federal government. As demonstrated above, CREW is primarily engaged in disseminating information. As also discussed above, the requested records seek to inform the public about the extent to which ICE has been consulted on the meaning, scope, and implementation of the immigration executive order, a matter of grave concern given the serious and persistent questions that have been raised publicly about the order's legality and effectiveness.

JA165 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 168 of 269 FOIA Officer February 3, 2017 Page4

Based on the foregoing, CREW satisfies the requirements for expedited processing ofthis request. Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected]. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

Alme . ismann ChiefFOIA Counsel

Encl.

JA166JA092Y USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 169 of 269 citizens for responsibility CREW Iand ethics in washington

February 3, 2017

BY EMAIL: [email protected]

Douglas C. Taylor, Ph.D. National FOIA Staff (AFN-140) 800 Independence Avenue, S.W. Washington, D.C. 20591

Re: Expedited Freedom of Information Act Request

Dear Dr. Taylor:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this expedited request for records pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and Department of Transportation regulations.

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office ofthe President and/or anyone acting on behalf ofthe Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from the Federal Aviation Administration ("FAA") concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index ofthose documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion ofthe document is non exempt, and how the material is dispersed throughout the document. See Mead Data Central v. US. Dep't ofthe Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and DOT regulations, CREW requests a l waiver of fees associated with processing this request for records. The subject ofthis request concerns the operations of the federal government, and the disclosures likely will contribute to a

455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org JA167JA092Z

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 170 of 269

Dr. Douglas Taylor February 3, 2017 Page2 better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 That same evening, President Trump replaced the acting director of U.S. Immigration and Customs 4 Enforcement ("ICE").

The requested records would shed light on the role, if any, the FAA played in the White House's development of the immigration travel ban and the extent to which the FAA was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing TravelBan: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available athttps://www.washingtonpost.com/news/post politics/wp/2017/01/29/unnamed-white-house-official-on-implementing-travel-ban-it-really-is-a-massive-success- story/?hpid=hp rhp-top-table-main pp-whbrief-l 135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 (available at cnn.com/2017/01/28/politics/donald-trump-ban/). 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) (available athttps:!lwww. bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sally-yates/HkFReIYJidU9deDelPK 6SM/story.html). 4 Press Release, Department of Homeland Security, "Statement From Secretary Kelly on the President's Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 (available athttps://www.dhs.gov/news /2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-director).

JA168

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Dr. Douglas Taylor February 3, 2017 Page 3 or other means. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www.citizensforethics.org, and through www.scribd.com. The release of information obtained through this request is not in CREW's financial interest.

CREW further requests that it not be charged search or review fees for this request pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) because CREW qualifies as a member of the news media. See Nat'! Sec. Archive v. U.S. Dep't of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (holding non-profit a "representative of the news media" and broadly interpreting the term to include "any person or organization which regularly publishes or disseminates information to the public"). Courts have deemed other non-profit organizations with functions and missions comparable to CREW's "representatives of the news media." See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.D.C. 2015); Judicial Watch, Inc. v. U.S. Dep't of Justice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (self-described "public interest law firm" qualified as a news media requester).

CREW routinely and systematically disseminates information to the public in several ways. CREW' s website receives tens of thousands of page views every month. The website includes a blog that reports on and analyzes newsworthy developments regarding government ethics, corruption, and money in politics, as well as numerous reports CREW has published to educate the public about these issues. In addition, CREW posts all of the qocuments it receives under the FOIA at www.scribd.com, and those documents have been visited hundreds of thousands of times.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 49 C.F.R. § 7.31(c)(ii) given the urgency to inform the public about an actual or alleged federal government activity. As demonstrated above, CREW is primarily engaged in disseminating information. As also discussed above, the requested records seek to inform the public about the extent to which the FAA has been consulted on the meaning, scope, and implementation of the immigration executive order, a matter of grave concern given the serious and persistent questions that have been raised publicly about the order's legality and effectiveness.

I certify that the foregoing is true and correct to the best of my knowledge and belief.

Based on the foregoing, CREW satisfies the requirements for expedited processing of this request.

Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected].

JA169

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 172 of 269

Dr. Douglas Taylor February 3, 2017 Page4

Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

e L. Weismann ChiefFOIA Counsel

Encl.

JA170 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 173 of 269 CREW citizens _for. respon~ibility Iand ethtcs tn washtngton February 3, 2017

BY EMAIL: [email protected]

Jonathan Cantor Acting Chief Privacy Officer/Chief FOIA Officer The Privacy Office U.S. Department of Homeland Security 245 Murry Lane SW STOP-0655 Washington, D.C. 20528-0655

Re: Expedited Freedom of Information Act Request

Dear Mr. Cantor:

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from any staff ofDHS concerning the president's executive order, issued on January 27,2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

If it is your position any portion of'the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non exempt, and how the material is dispersed throughout the document. See Mead Data Central v. US. Dep 't ofthe Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org JA171JA092DDJA092H

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 174 of 269

Jonathan Cantor February 3, 2017 Page2

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and DHS regulations, CREW requests a waiver of fees associated with processing this request for records. The subjectofthis request concerns the operations of the federal government, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international ,and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 That same evening, President Trump replaced the acting director of U.S. Immigration and Customs 4 Enforcement ("ICE").

The requested records would shed light on the role, if any, DHS played in the White House's development of the immigration travel ban and the extent to which DHS was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies, including DHS, were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available at https://www.washingtonpost.com/news/post politics/wp/2017/01/29/unnamed-white-house-official-on-implementing-travel-ban-it-really-is-a-massive-success story/?hpid=hp rhp-top-table-main pp-whbrief-1135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 (available at cnn.com/2017/01/28/politics/donald-trump-ban/). 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) (available at https://www. bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sally-yates/HkFReIYJidU9deDelPK 6SM/story.html). 4 Press Release, Department of Homeland Security, "Statement From Secretary Kelly on the President's Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 (available athttps://www.dhs.gov/news /2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-director).

JA172 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 175 of 269 Jonathan Cantor February 3, 2017 Page 3

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities of government officials, to ensuring the integrity of those officials, and to highlighting and working to reduce the influence of money on politics. CREW uses a combination of research, litigation, and advocacy to advance its mission. CREW intends to analyze the information responsive to this request and to share its analysis with the public through reports, press releases, or other means. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www.citizensforethics.org, and through www.scribd.com. The release of information obtained through this request is not in CREW's financial interest.

CREW further requests that it not be charged search or review fees for this request pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) because CREW qualifies as a_ member of the news media. See Nat'! Sec. Archive v. US. Dep'tofDefense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (holding non-profit a "representative of the news media" and broadly interpreting the term to include "any person or organization which regularly publishes or disseminates information to the public"). Courts have deemed other non-profit organizations with functions and missions comparable to CREW's "representatives of the news media." See, e.g., Cause ofAction v. IRS, 125 F. Supp. 3d 145 (D.D.C. 2015); Judicial Watch, Inc. v. US. Dep 't ofJustice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (self-described "public interest law firm" qualified as a news media requester).

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 6 C.P.R. §§ 5.5(e)(ii) and (iv). Pursuant to DHS regulations, CREW has submitted its request for expedition to the DHS Senior Director ofFOIA Operations because the subject of this request concerns a matter of widespread and exceptional media interest that raises questions affecting the public's confidence; a copy of that request is enclosed.

CREW also is entitled to expedition because of the urgency to inform the public about an actual or alleged federal government. As demonstrated above, CREW is primarily engaged in disseminating information. As also discussed above, the requested records seek to inform the public about the extent to which DHS has been consulted on the meaning, scope, and implementation of the immigration executive order, a matter of grave concern given the serious

JA173JA092FFJA092H USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 176 of 269 Jonathan Cantor February 3, 2017 Page4 and persistent questions that have been raised publicly about the order's legality and effectiveness.

Based on the foregoing, CREW satisfies the requirements for expedited processing of this request. Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected]. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

AimeJJ!~ L. Weismann Chief FOIA Counsel

Encl.

JA174JA092GG USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 177 of 269 citizens _for. respon~ibility CREW Iand ethtcs tn washtngton February 3, 2017

BY EMAIL: [email protected]

Kathy Ray U.S. Department of Transportation Office of the Secretary 1200 New Jersey Ave., S.E. W94-122 Washington, D.C. 20590

Re: Expedited Freedom of Information Act Request

Dear Ms. Ray:

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive.Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from the Office of the Secretary concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non exempt, and how the material is dispersed throughout the document. See Mead Data Central v. U.S. Dep 't ofthe Air Force, 566 F.2d 242,261 (D.C. Cir. 1977).

JA092HJA175JA092hHJA092HH 455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 178 of 269

Kathy Ray February 3, 2017 Page2

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and DOT regulations, CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 That same evening, President Trump replaced the acting director of U.S. Immigration and Customs 4 Enforcement ("ICE").

The requested records would shed light on the role, if any, DOT played in the White House's development of the immigration travel ban and the extent to which DOT was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available at https://www.washingtonpost.com/news/post- politics/wp/2017/01/29/unnamed-white-house-official-on-implementing-travel-ban-it-really-is-a-massive-success- story/?hpid=hp rhp-top-table-main pp-whbrief-1135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 (available at cnn.com/2017/01/28/politics/donald-trump-ban/) . 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) (available at https://www. bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sally-yates/HkFReIYJidU9deDelPK 6SM/story.html). 4 Press Release, Department of Homeland Security, "Statement From Secretary Kelly on the President's Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 (available at https://www.dhs.gov/news /2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-director).

JA176

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Kathy Ray February 3, 2017 Page 3

CREW routinely and systematically disseminates information to the public in several ways. CREW' s website receives tens of thousands of page views every month. The website includes a blog that reports on and analyzes newsworthy developments regarding government ethics, corruption, and money in politics, as well as numerous reports CREW has published to educate the public about these issues. In addition, CREW posts all of the documents it receives under the FOIA at www.scribd.com, and those documents have been visited hundreds of thousands of times.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 49 C.F.R. § 7.31(c)(ii) given the urgency to inform the public about an actual or alleged federal government activity. As demonstrated above, CREW is primarily engaged in disseminating information. As also discussed above, the requested records seek to inform the public about the extent to which DOT has been consulted on the meaning, scope, and implementation of the immigration executive order, a matter of grave concern given the serious and persistent questions that have been raised publicly about the order's legality and effectiveness.

I certify that the foregoing is true and correct to the best of my knowledge and belief.

JA177

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 180 of 269

Kathy Ray February 3, 2017 Page4

Based on the foregoing, CREW satisfies the requirements for expedited processing of this request.

Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected]. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

Anne L. Weismann Chief FOIA Counsel

Encl. I I I t

JA178

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 181 of 269 citizens for responsibility CREWI and ethics in washington

February 3, 2017

BY EMAIL: [email protected]

FOIA Officer U.S. Transportation Security Administration TSA-20, East Tower FOIA Branch 601 South 12th Street Arlington, VA 20598-6020

Re: Expedited Freedom of Information Act Request

Dear FOIA Officer:

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from anyone on the staff of the U.S. Transportation Security Administration ("TSA"), concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non exempt, and how the material is dispersed throughout the document. See Mead Data Central v. US. Dep't of the Air Force, 566 F.2d 242,261 (D.C. Cir. 1977).

455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 I 202.408.5565 phone I 202.588.5020 fax I www.citiZfAl§ thics.org

JA179

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 182 of 269

FOIA Officer February 3, 2017 Page2

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and DHS regulations, CREW requests a waiver of fees assodated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 Thatsame 4 evening, President Trump replaced the acting director ofI CE.

The requested records would shed light on the role, if any, TSA played in the White House's development of the immigration travel ban and the.extent to which TSA was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies, including DHS and components like TSA, were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available athttps://www.washingtonpost.com/news/post politics/wp/2017/01/29/unnamed-white-house-official-on-implementing-travel-ban-it-really-is-a-massive-success story/?hpid=hp rhp-top-table-main pp-whbrief-1135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 (available at cnn.com/2017/01/28/politics/donald-trump-ban/). 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) (available at https://www. bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sally-yates/HkFReIYJidU9deDelPK 6SM/story.html). 4 Press Release, Department of Homeland Security, "Statement From Secretary Kelly on the President's Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 (available at https://www.dhs.gov/news /2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-director).

JA180

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 183 of 269

CREW further requests that it not be charged search or review fees for this request pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) because CREW qualifies as a member of the news media. See Nat'! Sec. Archive v. US. Dep'tofDefense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (holding non-profit a "representative of the news media" and broadly interpreting the term to include "any person or organization which regularly publishes or disseminates information to the public"). Courts have deemed other non-profit organizations with functions and missions comparable to CREW's "representatives of the news media." See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.D.C. 2015); Judicial Watch, Inc. v. US. Dep't of Justice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (self-described "public interest law firm" qualified as a news media requester).

CREW routinely and systematically disseminates information to the public in several ways. CREW' s website receives tens of thousands of page views every month. The website includes a blog that reports on and analyzes newsworthy developments regarding government ethics, corruption, and money in politics, as well as numerous reports CREW has published to educate the public about these issues. In addition, CREW posts all of the documents it receives under the FOIA at www.scribd.com, and those documents have been visited hundreds of thousands of times.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 6 C.F.R. §§ 5.5(e)(ii) and (iv). Pursuant to DHS regulations, CREW has submitted its request for expedition to the DHS Senior Director of FOIA Operations because the subject of this request concerns a matter of widespread and exceptional media interest that raises questions affecting the public's confidence; a copy of that request is enclosed.

CREW also is entitled to expedition because of the urgency to inform the public about an actual or alleged federal government. As demonstrated above, CREW is primarily engaged in disseminating information. As also discussed above, the requested records seek to inform the public about the extent to which TSA has been consulted on the meaning, scope, and implementation of the immigration executive order, a matter of grave concern given the serious and persistent questions that have been raised publicly about the order's legality and effectiveness.

JA181

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 184 of 269

FOIA Officer February 3, 2017 Page4

Based on the foregoing, CREW satisfies the requirements for expedited processing of this request. Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected]. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

e L. eismann Chief FOIA Counsel

Encl.

JA182

USCA Case #18-5150 Document citizens#1770929 for responsibility Filed: 01/30/2019 Page 185 of 269 CREWI and ethics in washington

February 6, 2017

BY EMAIL: [email protected]

Jennifer Hudson Director, Information Management Office Office of the Director of National Intelligence Washington, D.C. 20511

Re: Expedited Freedom of Information Act Request

Dear Ms. Hudson: Citizens for Responsibility and Ethics in Washington ("CREW") makes this expedited request for records pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, and Office of the Director of National Intelligence ("ODNI") regulations.

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from the State Department concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non- exempt, and how the material is dispersed throughout the document. See Mead Data Central v. US. Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and ODNI regulations, CREW requests a waiver of fees associated with processing this request for records. The subject of this request

455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 I 202.408.5565 phone I 202.588.5020 fax I www.citi8 2Wthics.org

JA183

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 186 of 269

Jennifer Hudson February 6, 2017 Page2 concerns the operations of the federal government, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order's meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order's final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 That same evening, President Trump replaced the acting director of U.S. Immigration and Customs Enforcement ("ICE").4

The requested records would shed light on the role, if any, ODNI played in the White House's development of the immigration travel ban and the extent to which State·was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

1 See, e.g., Jenna Johnson, Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 2017 (available at https://www.washingtonpost.com/news/post- politics/wp/2017/01/29/unnamed-white-house-official-on-implementing-travel-ban-it-really-is-a-massive-success- story/?hpid=hp rhp-top-table-main pp-whbrief-1135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 (available at cnn.com/2017/01/28/politics/donald-trump-ban/). 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) (available at https://www. bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sally-yates/HkFReIYJidU9deDelPK 6SM/story.html). 4 Press Release, Department of Homeland Security, "Statement From Secretary Kelly on the President's Appointment of Thomas D. Homan as Acting ICE Director," Jan. 30, 2017 (available at https://www.dhs.gov/news /2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-director).

JA184

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 187 of 269

Jennifer Hudson February 6, 2017 Page 3 responsive to this request and to share its analysis with the public through reports, press releases, or other means. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www.citizensforethics.org, and through www.scribd.com. The release of information obtained through this request is not in CREW's financial interest.

CREW further requests that it not be charged search or review fees for this request pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) because CREW qualifies as a member of the news media. See Nat'! Sec. Archive v. U.S. Dep't of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (holding non-profit a "representative of the news media" and broadly interpreting the term to include "any person or organization which regularly publishes or disseminates information to the public"). Courts have deemed other non-profit organizations with functions and missions comparable to CREW's "representatives of the news media." See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.D.C. 2015); Judicial Watch, Inc. v. U.S. Dep't of Justice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (self-described "public interest law firm" qualified as a news media requester). ·

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 32 C.F.R. § 1700.12 given the urgency to inform the public about actual or alleged activity. As outlined above, CREW is an entity engaged primarily in publicizing information in order to inform the public. As also discussed above, the requested records seek to inform the public about the extent to which ODNI has been consulted on the meaning, scope, and implementation of the executive order, a matter of grave concern given the serious and persistent questions that have been raised publicly about the order's legality and effectiveness. The requested information is urgently needed because it has a particular value that will be lost if not distributed quickly given that it concerns a breaking news story related to the intense national and international turmoil caused by President Trump's immigration executive order.

I certify that the foregoing is true and correct to the best of my knowledge and belief.

Based on the foregoing, CREW satisfies the requirements for expedited processing of this request.

JA185 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 188 of 269

Jennifer Hudson February 6, 2017 Page4

Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected]. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

e L. Weismann Chief FOIA Counsel

JA186JA092SS USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 189 of 269 citizens .for. respon~ibility CREW and ethtcs tn I washtngton February 6, 2017

BY FACSIMILE: (202) 261-8579

U.S. Department of State Office of Information Programs and Services A/GIS/IPS/RL Department of State, SA-2 Washington, D.C. 20522-8100

Re: Expedited Freedom of Information Act Request

Dear FO IA Officer:

Specifically CREW requests copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from the State Department concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

If it is your position any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions ofthe requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non exempt, and how the material is dispersed throughout the document. See Mead Data Central v. US Dep 't ofthe Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).

JA187JA0JA092TTJA0922 455 Massachusetts Avenue, N.W., 6th Floor, Washington, D.C. 20001 I 202.408.5565 phone I 202 .588.5020 fax I www.citizensforethics.org USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 190 of 269

FOIA Officer February 6, 2017 Page 2

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A) and State Department regulations, CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government , and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. See 5 U.S.C. § 552(a)(4)(A)(iii). Moreover, the request primarily and fundamentally is for non-commercial purposes. See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

As has been widely reported, on January 27, 2007, President Trump issued an executive order barring baring entrants from seven countries with majority Muslim populations for 90 days and suspending for 120 days all refugee admissions. Implementation of the order provoked widespread international and domestic opposition, including a number of lawsuits challenging the order as unlawful and unconstitutional. International travelers at airports throughout the country faced mass confusion, and senior administration officials presented incomplete and often contradictory interpretations of the order' s meaning and scope.1 Reportedly the order was developed by the White House policy team, and at least career staff at DHS did not see the order' s final details until Friday.2 On January 31, 2017, President Donald Trump fired Acting Attorney General Sally Q. Yates after she announced publicly the Department of Justice would not defend the executive order unless and until she became convinced it was lawful.3 That same evening, President Trump replaced the acting director of U.S. Immigration and Customs 4 Enforcement ("ICE").

The requested records would shed light on the role, if any, the State Department played in the White House's development of the immigration travel ban and the extent to which State was provided an opportunity to review and weigh in on the executive order before President Trump issued it. Given the extensive news reporting suggesting the relevant agencies were largely left in the dark any information about how the order was vetted could help alleviate widespread concerns that the order was hastily drafted without sufficient consideration of its legal and practical ramifications.

1 S ee, e.g., Jenna Johnson , Unnamed White House Official on Implementing Travel Ban: 'It Really is a Massive Success Story.' Washington Post, Jan. 29, 20 I 7 ( available at https://www.washingtonpos t.com/news/post- politics/wp/2017/0I /29/unnamed-white -house-o fficial-on-implementing-travel-ban-it-really-is-a-massive-success story/?hpid=hp rhp-top-table-main pp-whbrief-1135pm%3Ahomepage%2Fstory&utm term=.894c8cb3f632). 2 Evan Perez, Pamela Brown and Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 30, 2017 ( available at cnn.com/2017/01/28/politics/dona ld-trump-ban/) . 3 Read the Full White House Statement on Sally Yates, Boston Globe (Jan. 31, 2017) ( available at https://www . bostonglobe.com/news /politics/20I 7/0 I /30/read-full-white-house-statement-sally-yates/HkFRelYJidU9deDelPK 6SM/story.html). 4 Press Release, Department of Homeland Security, " Statement From Secretary Kelly on the President 's Appointment of Thomas D. Homan as Acting ICE Director," Jan . 30 , 2017 ( available at https://www.dhs.gov /news /2017/0I /30/statement-secretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-d irector).

JA188 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 191 of 269

FOIA Officer February 6, 2017 Page 3

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities of government officials, to ensuring the integrity of those officials, and to highlighting and working to reduce the influence of money on politics. CREW uses a combination of research , litigation , and advocacy to advance its mission. CREW intends to analyze the information responsive to this request and to share its analysis with the public through reports, press releases , or other means. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www.citizensforethics.org, and through www.scribd.com. The release of information obtained through this request is not in CREW's financial interest.

CREW further requests that it not be charged search or review fees for this request pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) because CREW qualifies as a member of the news media. See Nat'! Sec. Archive v. US Dep't of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989) (holding non-profit a "representative of the news media" and broadly interpreting the term to include "any person or organization which regularly publishes or disseminates information to the public"). Courts have deemed other non-profit organizations with functions and missions comparable to CREW's "representatives of the news media." See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.D.C. 2015); Judicial Watch, Inc. v. US Dep't of Justice, 133 F. Supp. 2d 52, 53-54 (D.D.C. 2000) (self-described "public interest law firm" qualified as a news media requester).

CREW routinely and systematically disseminates information to the public in several ways. CREW' s website receives tens of thousands of page views every month. The website includes a blog that reports on and analyzes newsworthy developments regarding government ethics, corruption, and money in politics, as well as numerous reports CREW has published to educate the public about these issues. In addition, CREW posts all of the documents it receives under the FOIA at www.scribd.com, and those documents have been visited hundreds of thousands of times.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

Request for Expedition

CREW also requests expedition of this request pursuant to 22 C.F.R. § 171.1l(f) given the urgency to inform the public about actual or alleged activity. As outlined above, CREW is an entity engaged primarily in publicizing information in order to inform the public. As also discussed above, the requested records seek to inform the public about the extent to which the State Department has been consulted on the meaning, scope, and implementation of the executive order, a matter of grave concern given the serious and persistent questions that have been raised publicly about the order' s legalit y and effectiveness. The requested information is urgently needed because it has a particular value that will be lost if not distributed quickly given that it concerns a breaking news story related to the intense national and international turmoil caused by President Trump's immigration executive order.

JA189 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 192 of 269

FOIA Officer February 6, 2017 Page 4

I certify that the foregoing is true and correct to the best of my knowledge and belief.

Based on the foregoing, CREW satisfies the requirements for expedited processing of this request. Conclusion

If you have any questions about this request or foresee any problems in fully releasing the requested records, please contact me at (202) 408-5565 or [email protected]. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination.

Sincerely,

nne L. Weismann Chief FOIA Counsel

JA190 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 193 of 269

Exhibit B

JA191 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 194 of 269 U.S. Department of Homeland Security Washington, DC 20528

Homeland Security

February 13, 2017

SENT VIA E-MAIL TO: [email protected]

Anne Weismann Chief Counsel CREW 1400 Eye St, NW Suite 450 Washington, DC 20005

Re: 2017-HQFO-00335

Dear Ms. Weismann:

This letter acknowledges receipt of your February 03, 2017, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), for all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from any staff of the U.S. Citizenship and Immigration Services ("USCIS") concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov. This office received your request on February 3, 2017.

Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. § 5.5(a) of the DHS FOIA regulations, the Department processes FOIA requests according to their order of receipt. Although DHS’ goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances. As your request seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request pursuant to 5 U.S.C. § 552(a)(6)(B). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.

We have queried the appropriate component(s) of DHS for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.

JA192 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 195 of 269

Your request has been assigned reference number 2017-HQFO-00335. Please refer to this identifier in any future correspondence. To check the status of your FOIA request, you may contact this office at 1-866-431-0486 or 202-343-1743, or you may check the status of your request online at http://www.dhs.gov/foia-status.

Sincerely,

LaEbony Livingston FOIA Program Specialist

JA193 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 196 of 269 U.S. Department of Homeland Security Washington, DC 20528

Homeland Security

February 13, 2017

SENT VIA E-MAIL TO: [email protected]

Anne Weismann Chief Counsel CREW 1400 Eye St, NW Suite 450 Washington, DC 20005

Re: 2017-HQFO-00319

Dear Ms. Weismann:

This letter acknowledges receipt of your February 03, 2017, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), for all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from any TSA staff concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States". This office received your request on February 03, 2017.

As it relates to your request for expedited processing and fee waiver, your request is granted.

Your request has been assigned reference number 2017-HQFO-00319. Please refer to this identifier in any future correspondence. To check the status of your FOIA request, you may

JA194

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 197 of 269

JA195 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 198 of 269

Exhibit C

JA196 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 199 of 269 U.S. Department of Homeland Security Transportation Security Administration Freedom of Information Act Branch 601 S. 12th Street Arlington, VA 20598-6020

2/22/2017

Freedom of Information Act/Privacy Act Request Acknowledgement

Requester Name and Address: Request Date: February 07, 2017 Anne Weismann Date Received: February 17, 2017 [email protected] Case Number: 2017-TSFO-00139 Fee Waiver Requested: Yes Expedited Requested: Yes Ms. Weismann:

Your request has been received in this office for processing. Please see below to learn if we need additional clarification and/or documentation in order to continue processing your request. If the first box is checked, nothing more is required from you. If other boxes are checked and we do require supplemental information, you have 30 calendar days to respond. If you do not respond within 30 days, we will administratively close your case; however, you may resubmit your request at any time. If you have any questions, please contact this office at (571) 227-2300 or [email protected].

No additional information is needed; we entered your request in our processing queue. Because you have asked for copies of records about yourself, we must verify your identity to ensure that your personal information is released only to you. Enclosed is the appropriate form that can be used to satisfy this requirement.

Because you have submitted a third party request, we must receive a statement from the subject of the request verifying his/her identity and certifying his/her agreement that records concerning him/her may be released to you. Enclosed is the appropriate form that can be used to satisfy this requirement.

We determined your request is too broad in scope or does not specifically identify the records you seek. You must describe the records with as much information as possible to enable us to locate them, if they exist, with a reasonable amount of effort.

Your request for expedited processing is denied because you do not qualify under one of the two required categories: 1) Circumstances in which the lack of expedited treatment could pose an imminent threat to life or physical safetly, or 2) A particular urgency existed to inform the public about government activity beyond the public's right to know.

Please be advised that the FOIA does not require federal agencies to answer questions or create records in response to a FOIA request. Please modify your request ensuring you specifically describe the records you seek.

JA197 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 200 of 269

Exhibit D

JA198 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 201 of 269 Freedom of Information Act Office

U.S. Department of Homeland Security 500 12th St SW, Stop 5009 Washington, DC 20536

March 28, 2017

Anne Weismann CREW 1400 Eye St, NW Suite 450 Washington, DC 20005

RE: ICE FOIA Case Number 2017-ICFO-14756 DHS FOIA Case Number 2017-HQFO-00320

Dear Ms. Weismann:

This acknowledges receipt of your February 03, 2017, Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE), for Copies of all communications from January 1, 2017 to the date of the request sent to and from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Order of the President, including the Trump transition team, to or from anyone on staff of the U.S. Immigration and Customs Enforcement (ICE) concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States". Your request was received in this office on March 23, 2017.

Upon initial review of your request, I have determined that the information you are seeking is under the purview of the Department of Homeland Security FOIA Office, a DHS component. Therefore, I am referring your request to the Deputy FOIA Officer for DHS, James Holzer, for processing and direct response to you. You may contact that office in writing at 245 Murray Lane, SW STOP-0655, Washington, D.C. 20528-0655 or via telephone at 866-431-0486.

Your request has been assigned reference number 2017-ICFO-14756. Please refer to this identifier in any future correspondence. To check the status of an ICE FOIA/PA request, please visit http://www.dhs.gov/foia-status. Please note that to check the status of a request, you must enter the 2016-ICFO-XXXXX or 2017-ICFO-XXXXX tracking number.You may contact this office at (866) 633-1182. Our mailing address is 500 12th Street, S.W., Stop 5009, Washington, D.C. 20536-5009.

Sincerely,

Catrina M. Pavlik-Keenan

JA199 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 202 of 269 [Type text]

FOIA Officer

JA200 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 203 of 269

Exhibit E

JA201 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 204 of 269 U.S. Department of Homeland Security Washington, D.C. 20528

Homeland Security

Privacy Office, Mail Stop 0655

October 19, 2017

SENT VIA EMAIL TO: [email protected]

Anne Weismann Chief Counsel CREW 1400 Eye St, NW Suite 450 Washington, DC 20005

Re: 2017-HQFO-00320 2017-ICFO-14756

Dear Ms. Weismann:

This is the Privacy Office’s final response to your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), Privacy Office, dated February 3, 2017, and received in this office on February 3, 2017. You requested documents regarding all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from anyone on the staff of the U.S. Immigrations and Customs Enforcement ("ICE"), concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States".

After further review of your request, it was determined that the United States Immigration & Customs Enforcement (ICE) is the proper office to respond to your request. Therefore, we are closing your request with our office. You may contact the ICE FOIA Office at 866-633-1182 for the status of your request and refer to case number 2017-ICFO-14756.

If you need to contact our office again about this matter, please refer to 2017-HQFO-00320. You may contact this office at 1-866-431-0486 or 202-343-1743.

Sincerely,

/s/ LaEbony Livingston FOIA Program Specialist

JA202 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 205 of 269

Exhibit F

JA203

U.S. Department of Homeland Security USCA Case #18-5150 Document #1770929 Filed: 01/30/2019National Records PageCenter 206 of 269 P.O. Box 648010 Lee's Summit, MO 64064-8010

U.S. Citizenship and Immigration Services

August 22, 2017 COW2017000118

Anne L Weismann CREW 455 Massachusetts Avenue NW, Sixth Floor Washington, DC 20001

Dear Anne L Weismann:

This is in response to your Freedom of Information Act/Privacy Act (FOIA/PA) request received in this office February 08, 2017 for information relating to all communications from January I, 2017 to the present regarding President Donald J. Trump's Executive Order Protecting the Nation from Foreign Terrorist Entry into the U.S

After completing its search for records and reviewing the records compiled, we have determined that users did not create records nor does it have custody and control over records that may be responsive. If you have reason to believe that responsive records do exist, and you can provide us with additional information, we will conduct another search. Please forward the additional information to the address listed above and reference the control number which appears on this correspondence. If, after the second search no responsive records are located, you will be notified. At that time you may appeal the determination by following the directions set forth below.

You have the right to file an administrative appeal within 90 days of the date of this letter. By filing an appeal, you preserve your rights under FOIA and give the agency a chance to review and reconsider your request and the agency's decision. You may file an administrative FOIA appeal to users at: users FOIA/PA Appeals Office, 150 Space Center Loop, Suite 500, Lee's Summit, MO 64064-2139. Both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal."

If you would like to discuss our response before filing an appeal to attempt to resolve your dispute without going through the appeals process, you may contact our FOIA Public Liaison, Jill Eggleston, for assistance at:

U.S. Citizenship and hnmigration Services National Records Center, FOIA/PA Office P. 0. Box 648010 Lee's Summit, MO 64064-8010 Telephone: 1-800-375-5283 Email: [email protected]

www.uscis.gov

JA204 COW20USCA 17000118Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 207 of 269 Page 2

If you are unable to resolve your FOIA dispute through our FOIA Public Liaison, the Office of Government Information Services (OGIS), the Federal FOIA Ombudsman's office, offers mediation services to help resolve disputes between FOIA requesters and Federal Agencies. The OGIS does not have the authority to handle requests made under the Privacy Act of 1974. The contact information for OGIS is:

Office of Government Information /Services National Archives and Records Administration 860 I Adelphi Road- OGIS College Park, MD 20740-6001 Telephone: 202-741-5770 877-684-6448 Email: [email protected] Website: OGIS.ARCHIVES.GOV

If you should have any additional questions about your request, please direct your inquiries to this office. You may also fax any correspondence to (816) 350-5785.

Sincerely, ~7~ Jill A. Eggleston Director, FOIA Operations

JA205JA092LLLJA092H USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 208 of 269

Exhibit G

JA206 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 209 of 269 U.S. Department of Homeland Security Freedom of Information Act Branch 601 South 12th Street Arlington, VA 20598-6020

June 28, 2017

3600.1 Case Number: 2017-TSFO-00139

Anne Weismann Citizens for Responsibility and Ethics in Washington 1400 Eye St, NW Suite 450 Washington, DC 20005

Dear Ms. Weismann:

This letter responds to your Freedom of Information Act (FOIA) request dated February 07, 2017, addressed to the Transportation Security Administration (TSA) FOIA Branch seeking access to “all communication from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President, including, but not limited to, anyone on the Trump transition team, to or from anyone on the staff of the [TSA], concerning the president’s executive order, issued on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States.””

Our search failed to produce any records responsive to your request. The rules and regulations of the Transportation Security Administration applicable to Freedom of Information Act requests are contained in the Code of Federal Regulations, Title 6, Part 5. They are published in the Federal Register and are available for inspection by the public.

Fees

There are no fees associated with processing this request because the fees incurred do not exceed the minimum threshold necessary for charge.

Administrative Appeal

In the event that you wish to appeal this determination, an administrative appeal may be made in writing to Kimberly Walton, Assistant Administrator, Office of Civil Rights & Liberties, Ombudsman and Traveler Engagement (CRL/OTE), Transportation Security Administration, 601 South 12th Street, East Building, E7-121S, Arlington, VA 20598-6033. Your appeal must be submitted within 90 days from the date of this determination. It should contain your FOIA request number and, to the extent possible, the reasons why you believe the initial determination should be reversed. In addition, the envelope in which the appeal is mailed should be prominently marked “FOIA Appeal.” Please note that the Assistant Administrator’s determination of the appeal will be administratively final.

Additionally, you have the right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as

JA207 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 210 of 269

a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001; e-mail at [email protected]; telephone at 202-741-5770; toll free at 1-877-684- 6448; or facsimile at 202-741-5796.

If you have any questions pertaining to your request, please feel free to contact the FOIA Branch at 1- 866-364-2872 or locally at 571-227-2300.

Sincerely,

Regina McCoy FOIA Officer

JA208 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 211 of 269

Exhibit H

JA209 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 212 of 269 U.S. Department of Homeland Security Washington, D.C. 20528

Homeland Security

Privacy Office, Mail Stop 0655

October 17, 2017

SENT VIA EMAIL TO: [email protected]

Anne Weismann Chief Counsel CREW 1400 Eye St, NW Suite 450 Washington, DC 20005

Re: 2017-HQFO-00335

Dear Ms. Weismann:

This is the Privacy Office’s final response to your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), Privacy Office, dated February 3, 2017, and received in this office on February 3, 2017. You requested documents regarding all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from any staff of the U.S. Citizenship and Immigration Services ("USCIS") concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States." This request includes both written and electronic communications, including but not limited to email communications using the domain EOP.gov.

After further review of your request, it was determined that the U.S. Citizenship & Immigration Services (USCIS) is the proper office to respond to your request. Therefore, we are closing your request with our office. You may contact the USCIS FOIA Office at 1-800-375-5283 for the status of your request.

If you need to contact our office again about this matter, please refer to 2017-HQFO-00335. You may contact this office at 1-866-431-0486 or 202-343-1743.

Sincerely, /s/

LaEbony Livingston FOIA Program Specialist

JA210 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 213 of 269

Exhibit I

JA211 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 214 of 269 U.S. Department of Homeland Security Washington, DC 20528

Homeland Security

Privacy Office, Mail Stop 0655 October 16, 2017

SENT VIA EMAIL TO: [email protected]

Anne Weismann CREW 1400 Eye St, NW Suite 450 Washington, DC 20005

Re: 2017-HQFO-00319 2017-TSFO-00139

Dear Ms. Weismann:

This is the Privacy Office’s final response to your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), dated February 3, 2017, and received by this office on February 3, 2017. You are seeking all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from any TSA staff concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States."

After further review of your request, it was determined that the Transportation Security Administration (TSA) is the proper office to respond to your request. Therefore, we are closing your request with our office. You may contact the TSA FOIA Office at 1-866-FOIA-TSA or 571-227-2300 for the status of your request and refer to case number 2017-TSFO-00139.

If you need to contact our office again about this matter, please refer to 2017-HQFO-00319. You may contact this office at 1-866-431-0486 or 202-343-1743.

Sincerely,

LaEbony Livingston FOIA Program Specialist

JA212 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 215 of 269

Exhibit J

JA213 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 216 of 269

United States Department of State

Washington, D.C. 20520 I

Dear Requester,

The cut-off date is the date the search is initiated unless you have provided. a specific timeframe.

After consideration of your request for expedited processing under the Department's rules governing Freedom of Information Act requests, we have determined that your request does warrant expedited processing.

" I We have considered your request for a fee waiver. Based upon the information provided in your letter, your request for a fee waiver has been granted; therefore, your request will be processed at no charge to you.

We will notify you as soon as responsive material has been retrieved and reviewed.

Should you want to contact us, you may call our FOIA Requester Service Center at (202) 261-8484 or send an email to [email protected]. Please refer to the Case Control Number in any communication.·

Sincerely, Requester Communications Branch r Office of Information Programs & Services

Office ofInformation Programs and Services Inquiries: US. Department ofState, SA-2 Phone: 1-202-261-8484 Washington, DC 20522-8100 FAX: 1-202-261-8579 Website: www.foia.state.gov E-mail: [email protected]

JA2142H OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE USCA Case #18-5150 DocumentWASHINGTON, #1770929 DC 20511 Filed: 01/30/2019 Page 217 of 269

MAR 1 0 2017 Anne Weismann 455 Massachusetts Avenue, N.W., 6'h Floor Washington, DC 20001

Reference: ODNI Case DF-2017-00189

Dear Ms. Weismann:

This acknowledges receipt of your email dated 27 February 2017 (Enclosure), received in the Information Management Division of the Office of the Director of National Intelligence (ODNI) on 28 February 2017. Pursuant to the Freedom oflnformation Act (FOIA), 5 U.S.C. § 552, as amended, you requested copies of all communications from January 1, 2017 to the present sent to or from anyone within the Executive Office of the President and/or anyone acting on behalf of the Executive Office of the President including, but not limited to, anyone on the Trump transition team, to or from the ODNI concerning the president's executive order, issued on January 27, 2017, "Protecting the Nation From Foreign Terrorist Entry Into the United States."

We will contact you as soon as possible if additional information or clarification is needed to process your request. All fees associated with the processing of this request have been waived.

With respect to your request for expedited processing, please be advised that ODNI handles all requests in the order we received them on a "first-in, first-out" basis. We make exceptions to this rule only when a requester establishes a compelling need under the standards in our regulations. A "compelling need" exists: 1) when the matter involves an imminent threat to the life or physical safety of an individual, or 2) when a person primarily engaged in Disseminating information makes the request and the information relevant to a subject of Public urgency concerning an actual or alleged Federal government activity. Your request does not demonstrate a "compelling need" under these criteria and, therefore, we deny your request for expedited processing.

We may be unable to provide a response within the 20 working days stipulated by the FOIA. Ifwe have not responded to you by the 20th working day, you have the right to consider our inability to meet the 20 day requirement for a response as a denial, and may appeal to the ODNI, Information Management Division, Washington, DC 20511 within 90 days of that date. It would seem more reasonable, however, to allow us sufficient time to continue processing your request and respond as soon as we can. You will have the right to appeal any denial of records/information at that time.

JA215 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 218 of 269

If you have any questions, please feel free to email our Requester Service Center at [email protected] or call us at (301) 243-1499. You can also contact ODNI's FOIA Liaison at DN!-FOIA-Liaison(dl,dni.gov.

Sincerely, "~ll~oh~ Chief, FOIA Branch Information Management Division

Enclosure

JA216JA092WWWJA092H USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 219 of 269

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JA219 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 222 of 269

THE WHITE HOUSE

W A S H I N G T O N

April 11, 2017 The Honorable Jason Chaffetz Chairman The Honorable Elijah E. Cummings Ranking Member United States House of Representatives Committee on Oversight and Government Reform 2157 Rayburn House Office Building Washington, D.C. 20515

Dear Chairman Chaffetz and Ranking Member Cummings:

Thank you for your letter of March 8, 2017 requesting information about White House compliance with the Presidential Records Act (PRA). The White House is committed to preserving records of activities which relate to or have an effect upon the carrying out of the President's constitutional, statutory or other official or ceremonial duties. All White House employees have been trained on their responsibilities under the PRA.

Responses to your specific questions are as follows:

Question 1

Your letter seeks identification of senior officials covered by the PRA who have used an "alias email account" to conduct official business. The White House has consulted with the Archivist concerning the National Archives and Records Administration's (NARA) interpretation of the term "alias email account." NARA interprets " alias email account" to mean multiple email accounts. There are no senior officials covered by the PRA with multiple accounts. As is common in large organizations, the White House's Information Technology system creates mirrored addresses for each user for security and other reasons. However, there is only one e-mail account per user independent of the number of addresses.

Questions 2, 3, & 4

Questions 2 through 4 of your letter asks for the White House to disclose policies involving "the use of non-official electronic accounts," "the use of official text message or other messaging or communications applications, and social media platforms," and how presidential records created or transmitted on certain electronic messaging accounts are "secured and preserved." It is the policy of the White House to comply with the preservation requirements of the PRA regardless of where presidential records reside, how they are created, or the manner in which they are transmitted.

JA220 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 223 of 269 Chairman Jason Chaffetz & Ranking Member Elijah Cummings April 11, 2017 Page 2

Question 5

All White House personnel have received or will receive mandatory in-person training on their obligations under the PRA. The Office of the Counsel to the President provided this training to virtually all personnel within the first weeks of the new Administration and continued to provide regular training sessions for new personnel. Moreover, the Office of the Counsel to the President provides written guidance to inform employees of PRA requirements.

Question 6

Your letter also asks for "a detailed description of the electronic system ... to archive email and other electronic records." In order to accommodate the Committee's request while balancing the concerns for IT security, your staff should contact Chris Herndon of the White House Information Service to discuss the most appropriate way to address your need for this information.

Finally, the White House is in receipt of your letter to White House Chief of Staff Reince Priebus, dated March 8, 2017, seeking information about the Executive Office of the President's (EOP) compliance with the Federal Records Act (FRA) and the Freedom oflnformation Act (FOIA). As I am sure you know, the components within the EOP subject to the FRA and FOIA are Executive Branch agencies not under the supervision of the President's Chief of Staff for purposes of their compliance with the FRA and FOIA. As such, the heads of those components are in the best position to receive requests from your Committee concerning compliance under the appropriate statutes.

This Administration is committed to the effective implementation of Federal records preservation and public access laws. Thank you for your attention to this important matter.

Assistant to the President and Director of Legislative Affairs

JA221 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 224 of 269

Exhibit B

JA222 TREY GOWDY, SOUTH CAROLINA ONE HUNDRED FIFTEENTH CONGRESS ELIJAH E. CUMMINGS, MARYLAND CHAIRMANUSCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page RANKING225 of MINORITY 269 MEMBER (!Congressof tbe Wniteb �tates J!,ouse of l\epresentatibes COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

2157 RAYBURN HOUSE OFFICE BUILDING

WASHINGTON, DC 20515-6143

MAJORITY {202) 225-507 4 MINORITY (202) 225-5051

http://ovetsight.house.gov

September 25, 2017

The Honorable Donald F. McGahn, II Counsel to the President The White House Washington, D.C. 20006

Dear Mr. McGahn:

Congress passed the Presidential Records Act to provide the framework for managing and preserving records created or received by the President, Vice President, their immediate staff, or individuals in the Executive Office of the President whose function is to assist or advise the President. Many emails fromWhite House employees are considered records under the Act and therefore subject to certain recordkeeping requirements. This Committee has legislative jurisdiction over the Presidential Records Act, as well as the Federal Records Act and Freedom of InformationAct. 1 As technology has changed and the use of email and other modem forms of electronic communication have become ubiquitous, the Committee has been active in updating portions of these laws. These updates include the Presidential and Federal Records Act Amendments of2014 and the FOIA Improvement Act of2016.2

As part of our regular oversight duties, the Committee, from time to time, inquires of the Executive Branch departments and agencies about their compliance with these federal laws. 3 With numerous public revelations of senior executive branch employees deliberately trying to circumvent these laws by using personal, private, or alias email addresses to conduct official government business, the Committee has aimed to use its oversight and investigative resources to prevent and deter misuse of private forms of written communication.4 Based on yesterday's Politico reporting regarding private email use forofficial government business by a senior

1 U.S. House of Rep's, Rule X(n)(l0). 2 Pub. L. No. 113-187 (2014); Pub. L. No. 114-185 (2016). 3 See, e.g., Letter fromHenry Waxman, Chairman, H. Comm. on Oversight and Gov't Reform, to Michael Astrue, Comm'r, U.S. Soc. Sec. Admn., et al. (Apr. 12, 2007). 4 See Letter from Darrell Issa, Chairman, H. Comm. on Oversight and Gov't Reform, to JeffreyZients, Acting Dir., Officeof Mgmt. & Budget, et al. (Dec. 13, 2012); Letter from Jason Chaffetz, Chairman, H. Comm. on Oversight and Gov't Reform, to Kathleen McGettigan, Acting Dir., Officeof Personnel Mgmt., et al. (Mar. 8, 2017).

JA223JA092DDDDJA092H

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 226 of 269 The Honorable Donald F. McGahn, II September 25, 2017 Page 2

member of the President's staff,5 today we write towards a similar end to you and the heads of the Cabinet departments and other CFO Act agencies.

As a follow-up to the White House's April 11, 2017, response to the Committee's letter on March 8, 2017, please provide the following documents and information by October 9, 2017:

1. Have you or any non-career official at the White House ever used a personal email account to conduct official business? If so, please identify the individual and the account used, and provide evidence of measures to ensure compliance with federal law.

Have you or any non-career official at the White House ever used an alias email account to conduct official business? If so, please identify the individual and the account used, and provide evidence of measures to ensure compliance with federal law.

3. Have you or any non-career official at the White House ever used text messages, phone based message applications, or encryption software to conduct official business? If so, please identify the individual, cellular number and account used, and provide evidence of measures to ensure compliance with federal law.

4. Please identify any changes to the White House's policies or directives for any of the following areas since January 1, 2017:

a. Policies referring or relating to the use of non-official electronic messaging accounts, including email, text message, messaging applications, and social media platforms to conduct official business, including but not limited to archiving and recordkeeping procedures;

b. Policies referring or relating to the use of official text message or other messaging or communications applications, and social media platforms to conduct official business, including but not limited to archiving and recordkeeping procedures; and

c. Policies and procedures to ensure all communications related to the creation or transmission of federal records on official electronic messaging accounts other than email, including social networking platforms, internal agency instant messaging systems and other communications applications, are properly captured and preserved as federal records.

5 Josh Dawsey, Kushner used private email to conduct White House business, POLITICO (Sept. 24, 2017), available at http://www.politico.com/story/2017/09/24/jared-kushner-private-email-white-house-24307 l.

JA224 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 227 of 269 The Honorable Donald F. McGahn, II September 25, 2017 Page 3

An attachment to this letter provides additional instructions about responding to this request. Thank you in advance for responding fully and in a timely manner. If you have any questions about this request, please contact Drew Baney of the Majority staff on the Committee at (202) 225-5074 and Krista Boyd of the Minority staff on the Committee (202) 225-9493.

Sincerely,

Enclosures

JA225 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 228 of 269

Responding to Committee Document Requests

1. In complying with this request, you are required to produce all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agents, employees, and representatives acting on your behalf. You should also produce documents that you have a legal right to obtain, that you have a right to copy or to which you have access, as well as documents that you have placed in the temporary possession, custody, or control of any third party. Requested records, documents, data or information should not be destroyed, modified, removed, transferred or otherwise made inaccessible to the Committee.

2. In the event that any entity, organization or individual denoted in this request has been, or is also known by any other name than that herein denoted, the request shall be read also to include that alternative identification.

3. The Committee’s preference is to receive documents in electronic form (i.e., CD, memory stick, or thumb drive) in lieu of paper productions.

4. Documents produced in electronic format should also be organized, identified, and indexed electronically.

5. Electronic document productions should be prepared according to the following standards:

(a) The production should consist of single page Tagged Image File (“TIF”), files accompanied by a Concordance-format load file, an Opticon reference file, and a file defining the fields and character lengths of the load file.

(b) Document numbers in the load file should match document Bates numbers and TIF file names.

(c) If the production is completed through a series of multiple partial productions, field names and file order in all load files should match.

(d) All electronic documents produced to the Committee should include the following fields of metadata specific to each document;

BEGDOC, ENDDOC, TEXT, BEGATTACH, ENDATTACH, PAGECOUNT,CUSTODIAN, RECORDTYPE, DATE, TIME, SENTDATE, SENTTIME, BEGINDATE, BEGINTIME, ENDDATE, ENDTIME, AUTHOR, FROM, CC, TO, BCC, SUBJECT, TITLE, FILENAME, FILEEXT, FILESIZE, DATECREATED, TIMECREATED, DATELASTMOD, TIMELASTMOD, INTMSGID, INTMSGHEADER, NATIVELINK, INTFILPATH, EXCEPTION, BEGATTACH.

6. Documents produced to the Committee should include an index describing the contents of the production. To the extent more than one CD, hard drive, memory stick, thumb drive, box or folder is produced, each CD, hard drive, memory stick, thumb drive, box or folder should contain an index describing its contents.

JA226 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 229 of 269

7. Documents produced in response to this request shall be produced together with copies of file labels, dividers or identifying markers with which they were associated when the request was served.

8. When you produce documents, you should identify the paragraph in the Committee’s schedule to which the documents respond.

9. It shall not be a basis for refusal to produce documents that any other person or entity also possesses non-identical or identical copies of the same documents.

10. If any of the requested information is only reasonably available in machine-readable form (such as on a computer server, hard drive, or computer backup tape), you should consult with the Committee staff to determine the appropriate format in which to produce the information.

11. If compliance with the request cannot be made in full by the specified return date, compliance shall be made to the extent possible by that date. An explanation of why full compliance is not possible shall be provided along with any partial production.

12. In the event that a document is withheld on the basis of privilege, provide a privilege log containing the following information concerning any such document: (a) the privilege asserted; (b) the type of document; (c) the general subject matter; (d) the date, author and addressee; and (e) the relationship of the author and addressee to each other.

13. If any document responsive to this request was, but no longer is, in your possession, custody, or control, identify the document (stating its date, author, subject and recipients) and explain the circumstances under which the document ceased to be in your possession, custody, or control.

14. If a date or other descriptive detail set forth in this request referring to a document is inaccurate, but the actual date or other descriptive detail is known to you or is otherwise apparent from the context of the request, you are required to produce all documents which would be responsive as if the date or other descriptive detail were correct.

15. Unless otherwise specified, the time period covered by this request is from January 1, 2009 to the present.

16. This request is continuing in nature and applies to any newly-discovered information. Any record, document, compilation of data or information, not produced because it has not been located or discovered by the return date, shall be produced immediately upon subsequent location or discovery.

17. All documents shall be Bates-stamped sequentially and produced sequentially.

18. Two sets of documents shall be delivered, one set to the Majority Staff and one set to the Minority Staff. When documents are produced to the Committee, production sets shall be delivered to the Majority Staff in Room 2157 of the Rayburn House Office Building and the Minority Staff in Room 2471 of the Rayburn House Office Building.

JA227 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 230 of 269

19. Upon completion of the document production, you should submit a written certification, signed by you or your counsel, stating that: (1) a diligent search has been completed of all documents in your possession, custody, or control which reasonably could contain responsive documents; and (2) all documents located during the search that are responsive have been produced to the Committee.

Definitions

1. The term “document” means any written, recorded, or graphic matter of any nature whatsoever, regardless of how recorded, and whether original or copy, including, but not limited to, the following: memoranda, reports, expense reports, books, manuals, instructions, financial reports, working papers, records, notes, letters, notices, confirmations, telegrams, receipts, appraisals, pamphlets, magazines, newspapers, prospectuses, inter-office and intra- office communications, electronic mail (e-mail), contracts, cables, notations of any type of conversation, telephone call, meeting or other communication, bulletins, printed matter, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, questionnaires and surveys, and work sheets (and all drafts, preliminary versions, alterations, modifications, revisions, changes, and amendments of any of the foregoing, as well as any attachments or appendices thereto), and graphic or oral records or representations of any kind (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings and motion pictures), and electronic, mechanical, and electric records or representations of any kind (including, without limitation, tapes, cassettes, disks, and recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or nature, however produced or reproduced, and whether preserved in writing, film, tape, disk, videotape or otherwise. A document bearing any notation not a part of the original text is to be considered a separate document. A draft or non-identical copy is a separate document within the meaning of this term.

2. The term “communication” means each manner or means of disclosure or exchange of information, regardless of means utilized, whether oral, electronic, by document or otherwise, and whether in a meeting, by telephone, facsimile, email (desktop or mobile device), text message, instant message, MMS or SMS message, regular mail, telexes, releases, or otherwise.

3. The terms “and” and “or” shall be construed broadly and either conjunctively or disjunctively to bring within the scope of this request any information which might otherwise be construed to be outside its scope. The singular includes plural number, and vice versa. The masculine includes the feminine and neuter genders.

4. The terms “person” or “persons” mean natural persons, firms, partnerships, associations, corporations, subsidiaries, divisions, departments, joint ventures, proprietorships, syndicates, or other legal, business or government entities, and all subsidiaries, affiliates, divisions, departments, branches, or other units thereof.

JA228 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 231 of 269

5. The term “identify,” when used in a question about individuals, means to provide the following information: (a) the individual's complete name and title; and (b) the individual's business address and phone number.

6. The term “referring or relating,” with respect to any given subject, means anything that constitutes, contains, embodies, reflects, identifies, states, refers to, deals with or is pertinent to that subject in any manner whatsoever.

7. The term “employee” means agent, borrowed employee, casual employee, consultant, contractor, de facto employee, independent contractor, joint adventurer, loaned employee, part-time employee, permanent employee, provisional employee, subcontractor, or any other type of service provider.

JA229 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 232 of 269

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM U.S. HOUSE OF REPRESENTATIVES 115TH CONGRESS

NOTICE OF APPEARANCE OF COUNSEL

Counsel submitting: ______

Bar number: ______State/District of admission: ______

Attorney for: ______

Address: ______

Telephone: ( ______) ______- ______

Pursuant to Rule 16 of the Committee Rules, notice is hereby given of the entry of the

undersigned as counsel for ______in (select one):

All matters before the Committee

The following matters (describe the scope of representation):

______

All further notice and copies of papers and other material relevant to this action should be directed to and served upon:

Attorney’s name: ______

Attorney’s email address: ______

Firm name (where applicable): ______

Complete Mailing Address: ______

______

I agree to notify the Committee within 1 business day of any change in representation.

______Signature of Attorney Date

JA230JA092KKKKJA092H USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 233 of 269

Exhibit C

JA231 TREY GOWDY, SOUTH CAROLINA ONE HUNDRED FI FTEENTH CONGRESS ELIJAH E. CUMMINGS, M ARYLAND CUSCAHAIRMAN Case #18-5150 Document #1770929 Filed: 01/30/2019 Page RA234N KI NG ofM INORI 269TY MEMBER ~ongress of tbe ltniteb ~tates J!)ouse of l\epresentatibes

COMMITIEE ON OVERSIGHT AND GOVERNMENT REFORM

2157 R AYBURN H OUSE OFFICE B UILDING

W ASHINGTON, DC 20515- 61 43

MAJOOtlY (202) 225-5074 MtNORtlY (202)225-5051 http://oversight.house.gov

September 25 , 2017

Jared Kushner Senior Advisor to the President The White House 1600 Pennsylvania A venue, NW Washington, D.C. 20500

Dear Mr. Kushner:

Last night, Politico reported that you have been using a personal email account to communicate with senior White House officials and others about government business. 1 The report also stated that you and your wife set up a private family domain for your personal email use shortly before starting your positions at the White House.2 In response to tllis report, yom attorney admitted that you sent and received official emails on your personal email account "from January tlu·ough August."3

Republican Members of Congress expressed shock and outrage when former Secretary of State Hillary Clinton used a personal email account. For example, Rep. Trey Gowdy, who served as Chairman of the House Select Committee on Benghazi, wrote on March 19,2015, to Secretary Clinton's attorney:

The public has a right to access public records. The public has a right to certainty that no classified or sensitive information was placed at risk of compromise. The public has a right to know who was advising the Secretary of State about official matters. The public has a right to a full , comprehensive and thorough accounting of Secretary Clinton's tenure. Moreover, there are other committees in both the House and Senate that have equities with respect to matters arising during Secretary Clinton's service to our country. Finally, the media, as a conduit between government and the public, has a right to inspect documents in the public domain. All of these entities have the right to be assmed the record is complete as well as to avoid burdensome and costly work and litigation to reconstruct public records.4

1 Kushner Used Private Email to Conduct White House Business, Politico (Sept. 24, 20 17) (online at www.pol itico.com/story/20 17 /09/24/jared-kushner-private-email-white-house-243071 ).

2 /d.

3 Kushner Used Personal Email Account for Government Business, New York Times (Sept. 24, 20 17) (on Iine at www.nytimes.com/20 17/ 09/24/us/politics/kushner-personal-email.html?mcubz=3). 4 Letter from Chairman Trey Gowdy, House Select Committee on Benghazi, to David E. Kendall (Mar. 19, 20 15) (onl ine at

JA232JA092MMMMJA092H

USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 235 of 269 Mr. Jared Kushner Page 2

Under the Presidential and Federal Records Act Amendments of 2014, which was passed after Secretary Clinton left office and before you assumed your position, the President, Vice President, and other federal employees who create records using non-governmental email accounts must copy their official account or forward the records to their government email account within 20 days.5 It is unclear from recent press reports whether you have complied with this law.

On March 8, 2017, our former Chairman, Rep. Jason Chaffetz, and I sent a bipartisan letter to White House Counsel Don McGahn asking whether any senior White House officials used non-official email accounts to conduct official business. 6 On April 11, 2017, White House Director of Legislative Affairs Marc Short sent a response stating: "There are no senior officials covered by the PRA with multiple accounts."7 This statement appears to be inaccurate, although it is possible that Mr. Short was referring to senior officials with multiple official governmental email accounts and that he did not know about your personal email account at the time he wrote this letter to the Committee.

On March 10, 2015, in my position as Ranking Member of the House Select Committee on Benghazi, I joined all Democrats on the Select Committee in writing to the State Department. Our letter noted that Secretary Clinton asked for all 55,000 pages of emails from her personal account to be released to the public, and we asked the State Department to prioritize the review of emails relating to Benghazi "in order to make them available to the public first without 8 waiting for the full review of all 55,000 pages of documents."

Before requesting copies or calling for the public release of all official emails you sent or received on your personal email account, I first request that you preserve all official records and copies of records in your custody or control and that you provide the information requested below. Your actions in response to the preservation request and the information you provide in response to this letter will help determine the next steps in this investigation.

This letter requests that you preserve all responsive documents, communications, and other data ("records") that may be required for our oversight and investigative duties. The term

https://benghazi.house.gov Isites/repubIicans.benghazi.house.gov/files/TG%20 letter%20to%20Kendal1%203.19.15.p df).

5 44 u.s.c. §2209.

6 Letter from Chairman Jason Chaffetz and Ranking Member Elijah E. Cummings, Committee on Oversight and Government Reform, to Donald F. McGahan, II, Counsel to the President (Mar. 8, 2017) (online at https://oversight.house.gov/wp-content/uploads/2017/03/2017-03-08-JEC-EEC-to-McGahn-WH-Presidential- Records-Act-due-3-22.pdf).

7 Letter from Marc T. Short, Assistant to the President and Director for Legislative Affairs, to Chairman Jason Chaffetz and Ranking Member Elijah E. Cummings, Committee on Oversight and·Government Reform (Apr. I 1, 2017) (online at https://democrats- oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2017- 04-11%20Short- WH%20to%20JEC%20EEC%20-%20PresidentiaI%20Records%20Act"/o20re%203-8_0.pdf).

8 Letter from Ranking Member Elijah E. Cummings et al., House Select Committee on Benghazi, to Secretary John Kerry, Department of State (Mar. 10, 2015) (online at http://democrats- benghazi.house.gov/sites/democrats.benghazi.house.gov/files/documents/2015_03_ l O_Letter_from_Dem_Members _to_State_re_Clinton_Emails.pd/).

JA233 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 236 of 269

Mr. Jared Kushner Page 3

"records" is broad and inc ludes log file s and metadata . For purposes of this request, " preserve" mean s taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletio n, shredding, incine ration, wiping, relocation, migration, theft, or mutation of electronic records, including emails, as well as negligent or intentional handling which would foreseeably make such records incomplete or inacce ssible. Specifically, you should:

1. exercise reasonable efforts to identify and notify former employees and contractors, subcontractors, and consultants who may have access to such records that they are to be preserved;

2. exercise reasonable efforts to identi fy, recover, and preserve any records which have been deleted or marked for deletion but are still recoverable; and

3. if it is the routine practice of any employee or contractor to destroy or otherwise alter such records, either halt such practices or arrange for the preservation of complete and accurate duplicate s or copies of such records, suitable for production, if requested.

In addition, I request that you provide the following information:

1. the email addresses for all email accounts you have used to conduct official business since you were appointed to work in the White House;

2. a list of all emails you sent or received on non-governmental accounts in which you have conducted official business;

3. the names of all individual s on these emails, the email addresses of those individuals, and the dates of those emails;

4. the indi vidual or entity that set up and maintains the security of your private family domain; and

5. all conmmnications and documents regarding the security of your private family domain.

If you have any questions about this request, please contact Krista Boyd of my staff at (202) 225-9493. Thank you for your immediate attention to this matter.

Sincerely,

cc. The Honorable Trey Gowdy, Chairman

JA234 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 237 of 269

Exhibit D

JA235 USCA Case #18-5150 Document #1770929 Filed: 01/30/2019 Page 238 of 269

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al.,

Plaintiffs, Case No. 17-cv-1228 (CRC) v.

DONALD J. TRUMP et al.,

Defendants.

MEMORANDUM OPINION

This 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.

The use 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

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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.

The 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.

To the 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.

Plaintiffs’ 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

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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.

I. Background

A. The Presidential Records Act and the Federal Records Act

The 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.

The 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.

“Presidential 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

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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).

The PRA 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.

The 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).

The FRA directs the head of every federal agency to “make and preserve records

containing adequate and proper documentation of the organization, functions, policies, decisions,

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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.

B. Factual and Procedural Background

The 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.

In 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

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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 grant it.

II. Legal Standard

The 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)).

With 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.

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2013). The Court may look to materials outside the pleadings when deciding the motion.

Jerome Stevens Pharma., 402 F.3d at 1253.

In turn, “[t]o survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Dismissal is ultimately proper if “the ‘plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’” Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002) (citation omitted). In contrast to a motion under Rule 12(b)(1), when evaluating

a motion under Rule 12(b)(6) the Court may consider only the facts in the complaint, any

documents attached to or incorporated into the complaint, and matters of which the Court may

take judicial notice. See, e.g., EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624

(D.C. Cir. 1997).

Finally, when a plaintiff fails to state a valid cause of action, the proper remedy is to

dismiss the complaint under Rule 12(b)(6) for failure to state a claim: whether a plaintiff has

stated “claims ‘upon which relief can be granted’ depends in part on whether there is a cause of

action that permits [the plaintiff] to invoke the power of the court to redress the violations of

law” alleged. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 188 (D.C. Cir. 2006); see also Bell

v. Hood, 327 U.S. 678, 682 (1946) (“[T]he failure to state a proper cause of action calls for a

judgment on the merits and not for a dismissal for want of jurisdiction.”).

III. Analysis

CREW’s complaint raises four claims. The first three allege violations of the Presidential

Records Act and rely on a cause of action under the Court’s mandamus jurisdiction: Count I

seeks a declaratory judgment that the use of messaging apps like Confide and Signal violates the

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Act; Count II seeks a declaratory judgment that the failure to promulgate guidelines concerning

these apps violates the Act; and Count III seeks a writ of mandamus or injunctive relief requiring

the Defendants to comply with their duties under the Act. Count IV, in contrast, is brought

directly under the Take Care Clause of the Constitution: CREW seeks a declaratory judgment

that the Trump Administration’s use of executive orders violates the Clause’s mandate to

“faithfully execute” the laws. The Court will first address whether CREW states a claim as to

the three Presidential Records Act counts and then turn to the fourth count invoking the Take

Care Clause.1

A. Counts I through III

The government first argues that Counts I through III must be dismissed because judicial

review is precluded under the Presidential Records Act, as interpreted by the D.C. Circuit’s

Armstrong decisions. And even if that were not so, it further argues that CREW still fails to state

a valid mandamus claim and thus lacks a cause of action for its first three counts. The Court will

entertain the government’s Armstrong argument but ultimately declines to resolve it, finding that

dismissal is proper regardless because CREW fails to state a valid mandamus claim.

1. The Presidential Records Act and the Armstrong decisions

The government maintains that the Court should dismiss Counts I through III because

judicial review of these claims is precluded by the Presidential Records Act, as determined by

1 The government initially disputed whether CREW met the injury-in-fact requirement for standing. Defs.’ Mem. P. & A. Supp. Mot. Dismiss (“Gov. MTD”) at 8–11. It withdrew that challenge, however, in light of declarations that CREW submitted along with its opposition brief attesting to the organization’s plans to file future FOIA requests for records generated by the current Administration. Gov. Reply at 3 n.1. The Court agrees that CREW has alleged a sufficiently concrete and impending injury—namely, the unavailability of records that would have been responsive to future FOIA requests—to establish standing.

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the D.C. Circuit in the Armstrong I decision. Defs.’ Mem. P. & A. Supp. Mot. Dismiss (“Gov.

MTD”) at 11–12. CREW counters that its allegations fall within the narrow swath of claims that

were found to be reviewable in Armstrong II. CREW Opp’n at 32; see Armstrong v. Executive

Office of the President (“Armstrong II”), 1 F.3d 1274 (D.C. Cir. 1993) (per curiam).

Although the parties did not brief the issue, it is not immediately apparent that Armstrong

I precludes review of CREW’s mandamus claim, as opposed to a claim under the Administrative

Procedure Act. Armstrong I involved a suit brought by a group of plaintiffs under the APA

against then-President Ronald Reagan, then-Vice President George H.W. Bush, the National

Security Council, and the Archivist of the United States, seeking to prevent the deletion of

materials from White House computer systems. Armstrong I, 924 F.2d at 286. On appeal, the

D.C. Circuit first held that the President is not an “agency” for purposes of the APA. Id. at 289.

It then held that the Presidential Records Act “is one of the rare statutes that . . . impliedly

preclude[s] judicial review.” Id. at 290. Thus, the court concluded, “[t]he APA does not

authorize judicial review of the President’s compliance with the PRA because the President is

not an ‘agency’ . . . and because the PRA precludes judicial review of the President’s record

creation and management decisions.” Id. at 297.

The government argues that Armstrong I bars CREW’s mandamus claims because

“mandamus—like other forms of judicial review—is not available when judicial review is

precluded.” Gov. MTD at 22. But while Armstrong I could be read to preclude all forms of

judicial review, including mandamus, that case solely involved APA claims and thus did not

squarely present the question of whether the PRA precludes mandamus claims as well. And

there are reasons to think that implied preclusion of APA review might not by itself prevent

mandamus review. For one, the D.C. Circuit has permitted mandamus review even when the

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relevant statute expressly stripped all other bases of jurisdiction. Ganem v. Heckler, 746 F.2d

844, 850 (D.C. Cir. 1984) (holding that mandamus actions could be brought for certain violations

of the Medicare Act because while the Act stripped other bases of jurisdiction it did not

specifically strip mandamus jurisdiction).2

And judges in this District have held that mandamus is available “even when the statute

that creates the duty does not contain a private cause of action.” Judicial Watch, Inc. v. Nat’l

Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 42 (D.D.C. 2002) (citing Chamber of Commerce

v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)); see also Freedom Watch, Inc. v. Obama, 807 F. Supp.

2d 28, 34 (D.D.C. 2011). Finally, courts should take a cautious approach to foreclosing

mandamus review given the backstop nature of mandamus relief—it is only available when

“there is no other adequate remedy available to the plaintiffs.” Council of and for the Blind of

Delaware Cnty. Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983). It would be

somewhat counterintuitive to conclude that a statute like the PRA (1) impliedly forecloses APA

review, (2) thereby creating a need for mandamus review, and yet (3) impliedly forecloses that

review as well.

Nor do the cases the government cites clearly indicate that Armstrong I forecloses

mandamus review. See Gov. MTD at 22. Unlike here, those cases overwhelmingly involve

statutes with provisions expressly precluding jurisdiction or judicial review, often worded to

remove all jurisdiction or judicial review. If anything, these cases emphasize that Congress

2 See also In re Bayou Shores SNF, LLC, 828 F.3d 1297, 1313 & n.24 (11th Cir. 2016) (compiling cases from other circuits reaching the same conclusion); cf. In re al-Nashiri, 791 F.3d 71, 77 (D.C. Cir. 2015) (holding that because the jurisdiction-stripping provision in the Military Commissions Act did not expressly strip mandamus jurisdiction, the court had jurisdiction to consider a mandamus claim under the All Writs Act).

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knows how to withdraw mandamus if it wishes, either by explicitly stripping all jurisdiction or

judicial review, see, e.g., I.R.C. § 7421(a); 28 U.S.C. § 1447(d), or by stripping mandamus

authority specifically, see, e.g., 8 U.S.C. § 1252(a)(2)(B); 38 U.S.C. § 511(a). “The fact that

Congress knows how to withdraw a particular remedy and has not expressly done so is some

indication of a congressional intent to preserve that remedy.” Ganem, 746 F.2d at 852. In sum,

it is not as clearly established as the government suggests that Armstrong I prevents mandamus

review in addition to review under the APA.

But even if Armstrong I did preclude mandamus actions, CREW argues that its first three

claims fall within a category of claims that are subject to judicial review under the D.C. Circuit’s

decision in Armstrong II. Following subsequent proceedings on remand, the Armstrong case

returned to the D.C. Circuit two years later, this time with the plaintiffs arguing that the

Executive Office of the President was violating the Presidential Records Act by issuing

guidelines that improperly instructed federal agencies to treat agency records as presidential

records and thereby shield them from immediate release under FOIA. See Armstrong II, 1 F.3d

at 1290. Unlike in Armstrong I, the D.C. Circuit this time found that the plaintiffs’ claims were

reviewable. The court held that although “the PRA impliedly precludes judicial review of the

President’s decisions concerning the creation, management, and disposal of presidential records

during his term of office,” courts “may review guidelines outlining what is, and what is not, a

‘presidential record’” because to hold otherwise would “be tantamount to allowing the PRA to

functionally render the FOIA a nullity.” Id. at 1293–94.

The parties dispute the precise contours of the exception created by Armstrong II.

CREW argues that Armstrong II establishes a clear dichotomy: record creation, management,

and disposal decisions are not reviewable, but record classification decisions are. CREW Opp’n

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at 30–31; see also CREW, 593 F. Supp. 2d at 214 (district court adopting CREW’s approach).

And in its view, permitting the use of the challenged messaging apps constitutes a reviewable

classification decision. CREW Opp’n at 31. The government contests this understanding of

Armstrong II, contending that it only allows for the review of classification guidelines, which are

not implicated here. Gov. MTD at 15. Alternatively, it argues that even if CREW’s reading of

Armstrong II is correct, judicial review is still precluded because CREW is challenging creation,

management, and disposal decisions, not classification decisions. Id. at 18. Ultimately, the Court

need not resolve these competing interpretations because, to the extent judicial review is

available here at all, CREW must still state a valid mandamus claim. And as the Court will now

explain, it has not done so.

2. Whether CREW has stated a valid mandamus claim

As noted, the first three counts of CREW’s complaint allege violations of the Presidential

Records Act. To reach the merits on these claims, CREW must assert a valid cause of action.

See, e.g., Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 273 (D.C. Cir. 2015). The

Presidential Records Act does not itself provide one. See Judicial Watch, Inc. v. NARA, 845 F.

Supp. 2d 288, 299 n.5 (D.D.C. 2012); CREW, 593 F. Supp. 2d at 218. Nor can the Declaratory

Judgment Act standing alone supply a cause of action: it “is not an independent source of

federal jurisdiction” and thus “the availability of [declaratory] relief presupposes the existence of

a judicially remediable right.” Schilling v. Rogers, 363 U.S. 666, 677 (1960).

CREW therefore relies on its mandamus cause of action to sustain the first three counts

of its complaint.3 CREW Opp’n at 41. Federal courts have jurisdiction over suits “in the nature

3 A valid mandamus claim can sustain declaratory relief. Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587, 616 (D.C. Cir. 1974).

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of mandamus to compel an officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is “drastic” and

“available only in ‘extraordinary situations.’” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)

(en banc). Furthermore, even if a plaintiff makes out the required elements for mandamus,

“whether mandamus relief should issue is discretionary.” Id.

In order to obtain mandamus relief, a plaintiff must show that the defendant owes her a

“clear and compelling” duty. Id. (citation omitted). The duty must be “so plainly prescribed as

to be free from doubt and equivalent to a positive command.” Wilber v. U.S. ex rel. Kadrie, 281

U.S. 206, 218 (1930); see also U.S. ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931) (“The

law must not only authorize the demanded action, but require it; the duty must be clear and

indisputable.”). In other words, “mandamus is inappropriate except where a public official has

violated a ‘ministerial’ duty.” Consol. Edison Co. of N.Y., Inc. v. Ashcroft, 286 F.3d 600, 606

(D.C. Cir. 2002). “A ministerial duty is one that admits of no discretion, so that the official in

question has no authority to determine whether to perform the duty.” Swan v. Clinton, 100 F.3d

973, 977 (D.C. Cir. 1996). “[I]f there is no clear and compelling duty under the statute as

interpreted, the [Court] must dismiss the action.” In re Cheney, 406 F.3d at 729.

CREW contends that it has identified a clear and compelling duty here: the duty to issue

(effective) record classification guidelines. See, e.g., CREW Opp’n at 35–36 (“The writ of

mandamus sought by Plaintiffs would simply require Defendants to perform their ministerial

duty to issue classification guidelines that are consistent with the PRA.”); id. at 37 (“The

classification obligations the PRA creates are ministerial.”). The Court disagrees.

The Court will start, as it ought, with the relevant text of the Presidential Records Act.

Two provisions matter here. First, the statute directs that “[t]hrough the implementation of

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records controls and other necessary actions, the President shall take all such steps as may be

necessary to assure that . . . [presidential] records are preserved and maintained” in accordance

with the statute. 44 U.S.C. § 2203(a). Second, the statute provides that “[d]ocumentary

materials produced or received by the President” or his staff “shall, to the extent practicable, be

categorized as Presidential records or personal records upon their creation or receipt.” Id.

§ 2203(b). CREW argues that these two provisions create a clear and compelling duty on the

part of the President to issue effective classification guidelines.

Unfortunately for CREW, neither of these two provisions obligates the President to

perform any duty with the requisite level of specificity that mandamus requires. For one, neither

provision references classification guidelines in particular, let alone commands their creation.

Subsection (a) refers to the “implementation of records controls,” id. § 2203(a), but nothing in

the statute says those “controls” must include classification guidelines. Similarly, while

subsection (b) might direct that records be classified, it says nothing about who must classify

these records or how she must go about doing so. In all, the statute does not require that any

particular classification guidance be created, let alone that the President must create it.

By contrast, when courts have found that a statute creates a clear and compelling duty,

the statute has ordinarily described the precise action the officer must undertake. See, e.g., N.

States Power Co. v. U.S. Dep’t of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997) (holding that

statute providing that the Department “‘shall begin’ disposing’” of nuclear waste by January 31,

1998 created a “duty to act [that] could hardly be more clear”); 13th Reg’l Corp. v. U.S. Dep’t of

Interior, 654 F.2d 758, 760–61 (D.C. Cir. 1980) (holding that statute that “directed” the Secretary

of Interior “to make a study of all Federal programs primarily designed to benefit Native people”

created a ministerial duty (citation omitted)). The PRA’s silence as to any specific requirement

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is deafening for purposes of mandamus review: without a clear command to undertake any

particular action, CREW has an uphill battle to show that a clear and compelling duty exists.

The battle is made all the more difficult by the discretion accorded the President in

determining how to carry out his obligations under the Presidential Records Act. The statute

simply directs the President to take such actions “as may be necessary” to preserve records, a

phrase necessarily carrying a substantial degree of discretion to determine what steps are

necessary. Indeed, even the President’s duty to preserve records allows for some degree of

discretion: The Act permits the President to destroy Presidential records “that no longer have

administrative, historical, informational, or evidentiary value” but it defines none of these terms.

44 U.S.C. § 2203(c).4 Thus, the President must determine what it means for a record to no

longer have “value” and whether any particular, individual record has any remaining “value.” In

light of the overall discretion accorded the President to manage presidential records—including

which records to maintain or destroy—and the statute’s silence as to any specific duty to create

classification guidelines, CREW has failed to show the statute creates a ministerial duty to issue

classification guidance.

Judge Kollar-Kotelly’s decision in CREW v. Cheney is not to the contrary. The court

there held that the Vice President (and, consequently, the President) has no discretion “to change

the definition of Vice-Presidential [or Presidential] records provided by Congress.” 593 F. Supp.

2d at 220. As the court explained, “[b]ecause the PRA provides a definition for Vice-

Presidential records,” the Vice President had no “discretion to apply whatever definition of Vice-

4 The statute does require the President to undertake certain specific notifications prior to the destruction of records. See 44 U.S.C. § 2203(c). CREW does not raise an argument that the President has failed to comply with any ministerial duties as regards these procedures.

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Presidential records he decided suited him when undertaking his preservation obligations.” Id. at

220–21. Put another way, the Vice President and President lack discretion to issue classification

guidelines that conflict with the statute. But the mere fact that they cannot issue guidelines at

odds with the statute does not mean they must issue those guidelines in the first instance.

Limitations on an officer’s discretion when undertaking a particular action do not automatically

impose a limitation on the officer’s discretion to undertake that action. And, again, the PRA

creates no obligation to issue guidelines to begin with. That—along with the more expansive

discretion generally accorded the President to make decisions regarding how to adequately

preserve records—yields the conclusion that the statute does not clearly command the actions

CREW seeks to compel.

To sum up, CREW points to no duty that is sufficiently clear and compelling to meet the

stringent requirements for mandamus relief. While the Presidential Records Act may obligate

the President to take steps to preserve records, it nowhere dictates which steps to take. And

while CREW may question the effectiveness of any guidance the President has issued regarding

the preservation of his records, the Act nowhere clearly and definitively directs him to issue

particular guidelines. Because CREW has not identified a ministerial duty, it has failed to state a

valid mandamus claim. The Court must therefore dismiss Counts I through III of the Complaint.

B. Count IV

This leaves the fourth count of CREW’s complaint. Unlike the preceding three counts,

Count IV does not invoke the Presidential Records Act. Instead, CREW seeks a declaration that

President Trump has violated his obligation under the Take Care Clause to ensure that “the Laws

be faithfully executed,” U.S. CONST. art. II, § 3, cl. 5, by following a practice of making policy

through executive order rather than administrative rulemaking (or adjudication). This is so,

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CREW says, because centralizing policymaking in the White House avoids the creation of

agency records under the Federal Records Act and thereby shields records from disclosure under

other statutes like the APA and FOIA. Compl. ¶¶ 110–19. CREW does not root this count in

any statutory cause of action; it proceeds directly under the Constitution’s Take Care Clause

itself. See CREW Opp’n at 41. Thus, CREW raises a difficult question: Can a plaintiff obtain

declaratory relief against the President directly under the Take Care Clause?

The government offers what at first blush appears to be an easy answer: the Supreme

Court made clear over 150 years ago in Mississippi v. Johnson, 71 U.S. 475 (1866), that federal

courts cannot review the President’s obligation to take care to “faithfully execute” the laws.

Gov. MTD at 29; Gov. Reply at 12, 22. Johnson involved a suit seeking to enjoin then-President

Andrew Johnson from enforcing the post–Civil War Reconstruction Acts. 71 U.S. at 498. The

Supreme Court declined to do so. Id. at 499. It first distinguished two prior cases where it had

granted writs of mandamus, explaining that these cases involved “a mere ministerial duty” where

“[t]here was no room for the exercise of judgment.” Id. The Court then explained that

[v]ery different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts, and to detail sufficient military forces to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

Id. In deference to the “executive and political” nature of the President’s duty, the Johnson

Court adhered to “the general principles which forbid judicial interference with the exercise of

Executive discretion.” Id.

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The government here seizes on Johnson’s description of the President’s duty under the

Take Care Clause, interpreting it as holding the Clause to be entirely non-justiciable. See Gov.

MTD at 29; Gov. Reply at 12, 22. But the picture is cloudier than the government—or CREW

for that matter—makes it out to be.

For one, Johnson and subsequent cases discuss limitations on the ability of federal courts

to issue an injunction against the President, but CREW seeks only declaratory relief. It is not as

clearly settled that a court cannot issue a declaratory judgment against the President. On the one

hand, the D.C. Circuit has recognized that “similar considerations regarding a court’s power to

issue [injunctive] relief against the President himself apply to [a] request for declaratory

judgment.” Swan, 100 F.3d at 976 n.1; see also Franklin, 505 U.S. at 827 (Scalia, J., concurring

in part and concurring in the judgment) (arguing that federal courts cannot issue a declaratory

judgment against the President).

On the other hand, the D.C. Circuit has issued a declaratory judgment directly against the

President. In National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974), a

federal employees union brought suit against then-President Richard Nixon (and only him)

seeking to force the President to effectuate a pay raise passed by Congress. Id. at 616. After

concluding that it could issue a writ of mandamus directing the President to implement the pay

raise, the court instead elected to enter a declaratory judgment stating that the President had a

constitutional duty to do so. Id. at 615.5 In light of this D.C. Circuit decision, it is not fully

5 The Supreme Court’s decision in Clinton v. City of New York, 524 U.S. 417 (1998) may be another such case. The President was a defendant in that case and a declaration that the Line Item Veto Act was unconstitutional ultimately issued. Id. at 448–49. The Court was also careful to note that the plaintiffs in that case “sought a declaratory judgment that the Line Item Veto is unconstitutional and that the particular [line item veto issued] was invalid” but that

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established that Johnson forecloses the issuance of a declaratory judgment order against the

President for a Take Care Clause violation.6

It is also unclear whether Johnson forecloses any and all possible Take Care Clause

claims, particularly against executive branch officials other than the President.7 While Johnson

can be fairly read to suggest that a Take Care Clause claim is outright non-justiciable, the

government cites no case adopting that understanding of Johnson and the Court is aware of none.

In fact, the Supreme Court suggested that the Clause’s justiciability is an open question by sua

sponte directing the litigants in United States v. Texas to address whether the Obama

Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents

(“DAPA”) policy violated the Take Care Clause. See United States v. Texas, 136 S. Ct. 906

(2016). That question was left unresolved when the lower court’s decision was affirmed by an

equally divided Court. See 136 S. Ct. 2271 (2016).8

And finally, it may be the case that Johnson is best understood as a political question

case, rather than one about the Take Care Clause in particular. The D.C. Circuit has hinted at

“neither set of plaintiffs sought injunctive relief against the President,” suggesting that the Court found important the distinction between declaratory and injunctive relief. Id. at 425 n.9.

6 The government cites the D.C. Circuit’s statement in Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010), that courts “have never submitted the President to declaratory relief.” But, as discussed, the D.C. Circuit has itself submitted the President to declaratory relief. See Nat’l Treasury Emps. Union, 492 F.2d at 616. The decision in Newdow never cites or discusses National Treasury Employees Union.

7 Notably, CREW also seeks declaratory relief as to the Executive Office of the President. The government does not discuss whether any limitations on issuing relief as to the President in particular apply to declaratory relief against that defendant.

8 The decision below in that case also declined to address the parties’ Take Care Clause arguments. Texas v. United States, 809 F.3d 134, 146 n.3 (5th Cir. 2015).

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such an understanding, stating that the Supreme Court ultimately dismissed the case “on the

ground that it presented a political question.” Nat’l Treasury Emps. Union, 492 F.2d at 348

(citing Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867) and Mississippi v. Stanton, 154 U.S. 554

(1893)). All of this is to say that while Johnson may prevent a court from issuing an injunction

to the President concerning a discretionary duty, that case does not so clearly foreclose the

declaratory judgment claim at issue here.

At this juncture, however, the Court need not resolve the larger extant questions

regarding the existence or scope of Take Care Clause claims. Even assuming some universe of

viable Take Care Clause claims exists, CREW’s claim here does not fall within it. CREW does

not challenge any of the President’s executive orders themselves, nor does it argue that they

exceed the President’s authority to issue. CREW Opp’n at 18. Nor does CREW offer any

reason why an administration could not, in good faith, elect to act through executive order rather

than administrative action, even if that decision has incidental effects on the preservation of

government records and the public’s access to them. And the Court is aware of no authority

preventing the President from electing to “faithfully execute” the laws by executive order rather

than administrative process (assuming, of course, that the particular executive order at issue does

not exceed the President’s authority). Put another way, CREW does not dispute that the

President has the discretion to make policy by executive order. The Supreme Court has advised

that “[h]ow the President chooses to exercise the discretion Congress has granted him is not a

matter for [the courts’] review.” Dalton v. Specter, 511 U.S. 462, 476 (1994). The Court will

not ignore that counsel here.

* * *

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For the foregoing reasons, the Court will grant the government’s motion to dismiss. A

separate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: March 20, 2018

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSBILITY AND ETHIDS IN WASHINGTON et al.,

Plaintiffs, Case No. 17-cv-1228 (CRC) v.

DONALD J. TRUMP et al.,

Defendants.

ORDER

For the reasons stated in the accompanying Memorandum Opinion, it is hereby

ORDERED that [11] Defendants’ Motion to Dismiss is GRANTED.

This is a final appealable order.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: March 20, 2018

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al.,

Plaintiffs, Case No. 17-cv-1228 (CRC) v.

DONALD J. TRUMP et al.,

Defendants.

ORDER

Plaintiffs Citizens for Responsibility and Ethics in Washington and the National Security

Archive (collectively “CREW”) brought suit against President Donald Trump and the Executive

Office of the President, alleging violations of the Presidential Records Act and the Take Care

Clause of the Constitution. In response, the federal defendants moved to dismiss the case. The

Court did so on March 20, 2018. It held that CREW had failed to state a valid mandamus claim

because the sole duty it pointed to—the failure to issue effective guidelines—was not a

ministerial duty sufficient to support mandamus relief. See Citizens for Responsibility & Ethics

in Washington v. Trump (“CREW”), -- F. Supp. 3d. --, 2018 WL 1401271, at * 7–9 (D.D.C.

Mar. 20, 2018). The Court further held that CREW had failed to state a valid Take Care Clause

claim. Id. at *11.

CREW has now filed what it styles as a Rule 59(e) motion to alter or amend judgment.

“A Rule 59(e) motion ‘is discretionary’ and need not be granted unless the district court finds

that there is an ‘intervening change of controlling law, the availability of new evidence, or the

need to correct a clear error or prevent manifest injustice.’” Firestone v. Firestone, 76 F.3d 1205,

1208 (D.C. Cir. 1996) (per curiam) (citation omitted).

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CREW argues that there was clear error in the Court’s prior order because it failed to

“address claims raised by [CREW] in their Complaint.” Mem. P. & A. Supp. Pls.’ Mot. Amend

Alter J. at 1.1 Specifically, CREW claims that it identified two other actions undertaken by the

federal defendants—(1) the knowing use of certain instant messaging applications that

automatically delete messages upon receipt or reading and (2) the failure to follow statutorily-

required notifications prior to destroying presidential records, id. at 3, 7—that constitute

violations of ministerial duties under the Presidential Records Act. These two duties sustain its

mandamus claim, CREW says. The federal defendants raise several arguments in response: that

CREW has not filed a proper Rule 59(e) motion because it seeks to amend an opinion, not a

judgment; that CREW waived its arguments as to these two new duties and, in any event, neither

supports a mandamus claim; and that judicial review is precluded by the Presidential Records

Act. Defs.’ Opp’n Pls.’ Mot. Alter Amend J. at 6–16.

The Court agrees with the federal defendants on their second point: CREW forfeited its

arguments that either of the two duties it now points to—to refrain from using auto-deletion

message applications or to adhere to the statutory requirements for notification prior to

destroying presidential records—are ministerial duties supporting a mandamus claim. As to this

latter duty, the mandamus count of CREW’s complaint never once mentions a failure to adhere

to the statutory requirements for notification. See Compl. ¶¶ 103–108. Nor does CREW’s

opposition to the federal defendants’ motion to dismiss. See Mem. P. & A. Opp’n Defs.’ Mot.

Dismiss (“CREW Opp’n”) at 35–41. Consequently, it has forfeited this argument.

1 CREW raises no arguments as to the Court’s dismissal of its Take Care Clause claim.

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So, too, the argument that the federal defendants are violating a ministerial duty by using

auto-deletion messaging applications. While CREW may have mentioned these obligations in its

complaint, Compl. ¶ 107, it did not do so in its opposition to the motion to dismiss, see CREW

Opp’n at 35–41. Rather, in arguing why it stated a valid mandamus claim, CREW repeatedly

stated that the duty being violated here was only the duty to issue effective guidelines. See id. at

35 (“The writ of mandamus sought by Plaintiffs would simply require Defendants to perform

their ministerial duty to issue classification guidelines that are consistent with the [Presidential

Records Act].” (emphasis added)); id. at 37 (“If it is not a ministerial duty to issue and

implement guidelines that define what a presidential record is . . . ” (emphasis added)); id. at 39

(“Since Plaintiffs’ claim for mandamus relief would simply require the president to issue and

maintain guidelines that are consistent with the congressional mandate reflected in the

[Presidential Records Act] . . .” (emphasis added)). By failing to identify any other duties in its

opposition, CREW has forfeited its argument that the use of auto-deletion applications also

violates a ministerial duty.

Finally, even if CREW had not forfeited this final argument, it would be unavailing. As

the Court explained in its prior opinion, “neither of the[] two [statutory] provisions [CREW

points to] obligates the President to perform any duty with the requisite level of specificity that

mandamus requires.” CREW, 2018 WL 1401271 at *8. Rather, the Presidential Records Act

accords the President discretion “to manage presidential records—including which records to

maintain or destroy.” Id. Nowhere does the Act specifically prohibit the use of any particular

means of communication. As such, even if CREW had not forfeited its argument that the use of

auto-deletion applications violated a ministerial duty, it still does not point to a sufficiently

ministerial duty to sustain its mandamus claim.

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For these reasons, it is hereby

ORDERED that [22] Plaintiffs’ Motion to Alter or Amend Judgment is DENIED.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: June 25, 2018

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THE WHITE HOUSE WASHINGTON

February 22, 2017

MEMORANDUM FOR ALL PERSONNEL

THROUGH: DONALD F. McGAHN II Counsel to the President

FROM: STEFAN C. PASSANTINO Deputy Counsel to the President, Compliance and Ethics

SCOTT F. GAST Senior Associate Counsel to the President

JAMES D. SCHULTZ Senior Associate Counsel to the President

SUBJECT: Presidential Records Act Obligations

Purpose

To remind all personnel of their obligation to preserve and maintain presidential records, as required by the Presidential Records Act (“PRA”).

Discussion

The PRA requires that the Administration take steps “to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained.” This memorandum outlines what materials constitute “presidential records” and what steps you must take to ensure their preservation.

What Are Presidential Records?

“Presidential records” are broadly defined as “documentary materials . . . created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President,1 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.” Presidential records include material in both paper and electronic form.

1 The PRA applies to the following Executive Office of the President (“EOP”) entities: White House Office, Office of the Vice President, Council of Economic Advisors, Executive Residence, Office of Administration, Office of Policy Development (DPC and NEC), National Security Council, President’s Commission on White House Fellows, and President’s Intelligence Advisory Board.

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Some materials that are considered presidential records include:

• Memos, letters, notes, emails, faxes, reports, and other written communications sent to or received from others, including materials sent to or received from persons outside government;

• Drafts, marked-up edits, or comments that are circulated or shown to others;

• Notes or minutes of meetings that are circulated or shown to others;

• Meeting minutes, memos to file, notes, drafts, and similar documents that are created or saved for the purpose of accurately documenting the activities or deliberations of the Administration, even if such materials are not circulated or shown to others;

• PowerPoint presentations, audio recordings, photos, and video footage;

• Emails, chats, and other electronic communications that are created or received in the course of conducting activities related to the performance of the President’s duties, but that are sent from or received on non-official accounts; and

• Transition materials, but only if they are used in the course of official government business.

Purely personal records that do not relate to or have an effect upon the carrying out of the President’s official duties do not need to be preserved. Similarly, political records need not be preserved unless they relate to or have a direct effect upon the President’s official duties. Finally, certain materials that lack historic value are not covered by the PRA – for example, notes, drafts, and similar documents that are not circulated or that are not created or saved for the purpose of documenting the activities or deliberations of the Administration.

What Steps Should Be Taken to Preserve Presidential Records?

Paper Records. You should preserve hard-copy presidential records in organized files. To the extent practicable, you should categorize materials as presidential records when they are created or received. You should file presidential records separately from other material. Paper records are typically collected at the end of your White House service, but may be collected at an earlier point by contacting the White House Office of Records Management (“WHORM”). Any records collected by WHORM remain available to the staff member who provided them.

Electronic Records. You must preserve electronic communications that are presidential records. You are required to conduct all work-related communications on your official EOP email account, except in emergency circumstances when you cannot access the EOP system and must accomplish time sensitive work. Emails and attachments sent to and from your EOP account are automatically archived.

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Ifyou ever sendor receive email that qualifies as a presidential record using any other account, you must preserve that email by copying it to your official EOP email account or byforwarding it to your official email account within twenty (20) days. After preserving the email, you must delete it from the non-EOP account. Any employee who intentionallyfails to take these actions may be subject to administrative or even criminal penalties.

The same rnles apply to other fonns of electronic communication, including text messages. You should not use instant messaging systems, social networks, or other internet-based means of electronic communication to conduct official business without the approval ofthe Office of the White House Counsel. Ifyou ever generate or receive presidential records on such platfo1ms, you must preserve them by sending them to your EOP email account via a screenshot or other means. After prese1v ing the communications, you must delete them from the non-EOP platfo1m.

Electronic documents that qualify as presidential records and only exist in electronic format must be saved on your network drive or regularly synchronized to it. You must archive files that you are no longer using; you must not delete them. Your network drive will be captured upon your depa1ture from the EOP, which will secure any presidential records you have saved.

At all times, please keep in mind that presidential records are the prope1ty of the United States. You may not dispose of presidential records. When you leave EOP employment, you may not take any presidential records with you. You also may not take copies of any presidential records without prior authorization from the Counsel's office. The willful destruction or concealment of federal records is a federal crime punishable by fines and imprisonment.

Any questions about com liance with the Presidential Records Act ma Passantino , Scott Gast , or Jim Schultz

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CERTIFICATE OF SERVICE

I hereby certify that on January 30, 2019, I electronically filed the foregoing

Corrected Joint Appendix with the Clerk of the Court for the United States Court

of Appeals for the District of Columbia Circuit using the Court’s CM/ECF

system, which serves the filed document electronically on all attorneys of record

on the day the document is filed.

Dated: January 30, 2019 /s/ George M. Clarke III George M. Clarke III

Attorney for the Plaintiffs-Appellants