Access to Public Information
Bubon v. Russia
Closed Contracts Expression
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A District Court in Columbia denied motion to plaintiffs in a lawsuit brought against the U.S. President Donald J. Trump and the Executive Office of the President (EOP) for alleged failures to create, maintain and properly dispose of records of meetings and interactions with foreign leaders. The plaintiffs sought a writ of mandamus ordering compliance with duties and a declaratory judgment on several grounds, including primarily the violation of non-discretionary duties under the Presidential Records Act (PRA) and the interference of the President with the agencies tasked with creation and maintenance of records in compliance of the Federal Records Act (FRA). The Court, citing separation of powers and few limiting precedents from the early 1990s, found that it lacked authority to oversee compliance of the President’s daily acts and dismissed the complaint for lack of jurisdiction and failure to state a claim.
On May 7, 2019, the plaintiffs, three organisations namely Citizens for Responsibility and Ethics in Washington (CREW), National Security Archive (NSA) and Society for Historians of American Foreign Relations (SHAFR), filed a complaint citing Trump’s affirmative failure to create and retain records of meetings with certain foreign leaders, including the Russian President Vladmir Putin and the North Korean Leader, Kim Jung-Un.
Specifically, they claimed that Trump had interfered with the proper and adequate documentation of the agency records, shielded his conversations with the main strategic adversaries of the United States, as well as, at times, confiscated interpreter’s notes with instructions not to disclose anything. This, according to the plaintiffs, led to (i) failure of the Trump administration to comply with the mandatory provisions of the PRA which imposes an obligation to create, classify and preserve records, and (ii) violation of the PRA, FRA and Article II Section 3 of the Constitution (Take Care clause) and implementation of policies and practices therein.
The complainants sought relief on several counts:
On August 9, 2019, the Defendants sought to dismiss the complaint citing lack of subject matter jurisdiction on the ground of the bar on judicial review of the President’s recordkeeping practices under the PRA. They argued that the grant of a writ of mandamus necessarily obligates a “clear duty to act” which is absent in the case, as well as that the absence of a judicially remediable right prohibits any declaratory reliefs sought by the plaintiffs.
District Judge Amy Berman Jackson delivered the judgment of the District Court. The principle issue before the Court was whether it lacked the jurisdiction to consider the motion of the plaintiffs due to the substantial nature of limitations placed by the PRA on the Court’s powers of judicial review.
The creation, classification retention and disposal of federal government records is governed by the Presidential Records Act 44 U.S.C. § 2201 and the Federal Records Act 44 U.S.C. § 3101. Under the PRA, the President is required to take all steps to adequately document, preserve and maintain “presidential records” (defined in § 2201(2)). The disposal of such records by the President can be done only after the views of the Archivist of the United States is obtained, who may in turn choose to notify Congress, in which case the President is required to wait for a period of 60 days from the date of such notification to destroy the records. On the contrary, the FRA governs management of federal agency records. FRA records are required to be adequately safeguarded against their removal or loss, with destruction possible only in accordance with the procedure under FRA.
Before the Court, the defendants had argued that the Federal Rule of Civil Procedure 12(b)(1) mandates that the plaintiff bear the burden of establishing jurisdiction, which was inadequately discharged as Federal Courts were “courts of limited jurisdiction” [p. 6]. Further, the defendants, based on the holding in Armstrong v. Bush (“Armstrong I”), 924 F.2d 282, 285–86 (D.C. Cir. 1991), had contested that no judicial review of President’s recordkeeping practices and decisions was possible under the PRA. To this, the plaintiffs had pointed out an exception to the holding in Armstrong I, as held in Armstrong v. Exec. Office of the President (“Armstrong II”), 1 F.3d 1274, 1290 (D.C. Cir. 1993), where it was determined that courts are accorded the power to review guidelines in cases outlining “what is, and what is not, a ‘presidential record’” [p. 8] under the terms of PRA.
In examining the issue of lack of Court’s jurisdiction, the Court delved into a historical analysis of the PRA as well as Armstrong I and Armstrong II cases. Furthermore, the District Court also noted the judgment of the D.C. Circuit in Citizens for Responsibility & Ethics in Wash. v. Trump 924 F.3d 602 (D.C. Cir. 2019) where a similar differentiation between “classification” of records and “review” of executive practices/actions contravening PRA was made. Citing these cases, the Court held that supervision of the day-to-day operations of the White House is outside the ambit of the district judge, even in exceptional cases threatening the preservation and public access of presidential records.
The Court then answered the claims made by plaintiffs. Per Claim 1, the plaintiffs had sought a writ of mandamus compelling compliance of PRA, whereas, as per Claim 2, they requested a declaratory and injunctive relief against the defendants for violation of the mandatory, non-discretionary obligations to create records. The Court held that the nature of these claims rendered a challenge to the “administrative recordkeeping practices” and was not enough to relieve the parties of the jurisdictional bar stipulated by Armstrong I nor to bring the claims within the exceptions carved by Armstrong II. Taking cue from the D.C. Circuit’s decision in CREW v Trump where an attempt by one of the plaintiffs of this case to cast the intentional and regular use of a messaging service which automatically deleted messages as soon as they are read as a “reviewable” classification under Armstrong II was rejected by the court, the District Court also rejected a similar attempt in this case. In response to the allegations by the plaintiffs that the Congress had expressed serious concern over the impugned practices concerning deletion of communications through regular use of such controversial messaging services, the Court, however, noted that it is the Congress that can review the statutes invoked in the present case which grant the executive such “unfettered control.” [p. 14]
With respect to Claim 3 seeking declaration of the violation of PRA and FRA by the President and EOP, the Court noted that it focuses in particular on the creation of records while providing translation or interpretation services to the President, thus directing the attention of the Court to the “operations under, and implementation of the entire federal recordkeeping regime” [p. 16]. In the absence of a factual allegation of an actual classification of a record of the meeting with a foreign leader as a presidential record, the Court held that this claim also falls prey to the bar on judicial review in Armstrong I. Similarly, the Court also viewed disposal of presidential records by Trump without obtaining the views of the Archivist as a challenge to the day-to-day management of his records under PRA.
Finally, on the claim of the plaintiffs concerning violation of the constitutional obligation predicated by the Take Care Clause, the Court held that it was a mere attempt to disguise and circumvent the preclusion of judicial review and to avoid the scrutiny under Armstrong I. Thus, the complaint disallowed the Court from granting the reliefs in entirety and did not satisfy the requirements of mandamus jurisdiction.
On the claims of the plaintiff alleging violation of the FRA, the Court posited that no clear duty of the President or the EOP was shown, nor a violation of any such duty by the defendant.
It is also important to note that this case lays down a clear distinction between a ‘ministerial’ and a ‘discretionary’ duty, any direction on the latter by the Court being prohibited under law. The Court referred to Franklin v. Massachusetts, 505 U.S. 788, 802 (1992), Mississippi v. Johnson, 71 U.S. (4. Wall.) 475, 499–501 (1866) and Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996) to hold that while a writ a mandamus may be permitted for a ministerial duty that admits of no discretion, no such action is possible for a discretionary duty. Interestingly, the Court held that even though section 2203(a) of the PRA states that the President “shall” take all steps to document, preserve and maintain presidential records, it is not a mandatory obligation. This provision, requiring the President to exercise his discretion and considerable judgment and to take steps “as may be necessary”, was not held to be a purely ministerial obligation.
After a careful consideration of the aforementioned factors and reasons, the District Court granted the motion to dismiss to the defendants.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts freedom of expression, increasing the palpable risk of permanent loss of presidential records to the public at large. The right to seek and receive information is a crucial component of the freedom of expression and in particular important for the consolidation, functioning and preservation of democratic systems of government. By limiting judicial review into the alleged recordkeeping malpractices at higher levels of government, the Court has instead sought refuge under the separation of powers doctrine, rather than guaranteeing full respect for fundamental rights, and in particular, the freedom of expression.
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