Can anyone check the president on records management?

A motion to dismiss a lawsuit against President Trump argues that a president gets to decide what is and isn't a presidential record.

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Press reports that Trump administration staffers were using special messaging applications designed to destroy the contents of communications inspired a lawsuit by two open government groups.

The lawsuit, filed in June by Citizens for Responsibility and Ethics in Washington and the National Security Archive, wanted a federal court to rule that "knowing use" of such burn-after-reading apps and the failure of the administration to issue policy on such apps are violations of the Presidential Records Act.

The Justice Department, in a motion to dismiss the lawsuit, argues that the president has near-total authority over the disposition of presidential records under the law. The government is basing its arguments on a pair of cases from the early 1990s, known in the federal records bar as Armstrong I and Armstrong II, which cover the disposition of electronic records from the National Security Council, and the applicability of the Freedom of Information Act to presidential materials. The motion sets out what read like sweeping authorities for the president when it comes to materials under the Presidential Records Act.

"Courts cannot review the President’s compliance with the Presidential Records Act," the motion argues, and in any case, CREW and NSA lack standing because "private litigants may not bring suit to challenge the President’s compliance with the PRA."

The plaintiffs in the case disagree.

"We think it lacks merit," CREW attorney Anne Weismann told FCW in an email. "Essentially the government is arguing the President has unchecked authority to ignore the Presidential Records Act at will."

Federal records laws got a refresh in 2014, most notably to set a time limit for individuals covered by the Presidential and Federal Records Acts to transfer emails that constitute government records from private accounts to government accounts.

That bill was sponsored by Rep. Elijah Cummings (D-Md.), and went through the House Oversight and Government Reform Committee before passing into law. A Democratic staffer for the committee told FCW, "we would never concede that the president can dispose of any record he wishes."

Additionally, the staffer told FCW, "the 2014 law includes language that clearly allows for the possibility that a court may direct the archivist of the United States to release a presidential record against the wishes of a current or former president."

So who's right? Like a lot of things in federal records law, it hinges on minutiae.

Under the standards set up in Armstrong II, "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."

That suggests that it would be potentially problematic to take an instance of something generally considered a presidential record – say an email with a policy memorandum attached – and decide it no longer qualified. On the other hand, it might not be beyond the power of a president to declare that a new class of communications – say disappearing text messages – do not rise to the level of a presidential record.

Jason R. Baron, formerly chief litigator for the National Archives and Records Administration and now an attorney at Drinker Biddle, raised this very issue in an essay for Bloomberg Law. "If White House counsel reads [the statute] narrowly," Baron wrote, "to exclude apps like 'Confide' within its use of the term 'electronic messaging,' resulting in White House staff not being required to copy or transfer presidential records to an official electronic account before individual communications self-destruct, is that decision reviewable?"

This is just one of many records issues related to the Trump administration that are wending through the courts -- others include whether the president has the authority to delete tweets or block users on Twitter. If it turns out that groups like CREW have the standing to sue, it's likely that before long there will be new case law on a range of digital media records issue that would have been unimaginable a decade ago.

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