Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 1 of 39 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1101 K Street N W Suite 201 Washington DC 20005 NATIONAL SECURITY ARCHIVE Gelman Library George Washington University 2130 H Street N W Suite 701 Washington DC 20037 SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS Department of History Middle Tennessee State University 1301 East Main Street Box 23 Murfreesboro TN 37132 Plaintiffs v DONALD J TRUMP in his official capacity as President of the United States 1600 Pennsylvania Avenue N W Washington DC 20503 EXECUTIVE OFFICE OF THE PRESIDENT 725 17th Street N W Washington DC 20503 Defendants ____________________________________ Civil Action No _________ COMPLAINT 1 This is a civil action for declaratory injunctive and mandamus relief to address a policy and practice of violating the Presidential Records Act 44 U S C §§ 2201–2209 “PRA” the Federal Records Act “FRA” 44 U S C §§ 3101 et seq and Article II Section 3 of the Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 2 of 39 Constitution which imposes on the President a duty to “take care that the laws be faithfully executed ” Plaintiffs challenge 1 the failure of President Donald J Trump and the Executive Office of the President “EOP” to comply with their mandatory non-discretionary duties under the PRA including their failure to create and preserve records of the meetings and discussions the President and other senior White House staff have with foreign leaders 2 the classification of the notes of an interpreter employed by the State Department as well as all other information shared in the President’s meetings and discussions with foreign leaders as presidential records beyond the reach of the Freedom of Information Act “FOIA” in violation of the PRA and FRA 3 the failure of President Trump his staff and the EOP to solicit the views of the Archivist of the United States “Archivist” in writing and to transmit to Congress a disposal schedule prior to disposing of presidential records and 4 President Trump’s violation of his constitutional obligation to take care that the laws—including the PRA and the FRA—are faithfully executed 2 The PRA enacted in the wake of President Nixon’s resignation and attempt to seize control of his presidential records reflects Congress’s judgment that presidential records are owned by the United States on behalf of the American people Toward that end Congress required that essential records of the President’s business be created in the first place Specifically the PRA mandates that “ t hrough the implementation of records management controls and other necessary actions 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 Together 2 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 3 of 39 with the PRA’s imposition of restrictions on the President’s ability to destroy his or her records this dictate is the first and most critical step in creating a public historical record of a presidency 3 Congress also codified the public’s right of eventual access to the records of a president Beginning as early as five years after a President leaves office members of the public may file FOIA requests seeking that president’s records 44 U S C § 2204 Failure to record and preserve the essential activities deliberations decisions and policies of a presidency as the PRA requires places that information forever beyond the reach of the public The public’s rights of ownership and access are meaningless if there is no mechanism to enforce the president’s congressionally-imposed obligation to create those records in the first place 4 Likewise 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 To achieve this result the FRA requires that “ 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 ” 44 U S C § 3101 Conversely the head of each agency “shall notify the Archivist of any actual impending or threatened unlawful removal deletion erasure or other destruction of records in the custody of the agency 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 If the head of an agency does not follow the requirements of 44 U S C § 3106 a “the Archivist shall request the Attorney General to initiate such an action and shall notify the Congress when such a request has been made ” 44 U S C § 3106 b 3 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 4 of 39 5 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 a f The FOIA’s purpose is completely undermined when records that should be accessible through this mechanism are never preserved Further improperly classifying records as presidential and not federal agency records removes them from agency control and the reach of the FOIA while a President is in office 6 The PRA’s and FRA’s mandates have particular force now when the need for accurate records of U S foreign policy could not be greater Creating records of U S foreign policy is critical to ensure that private researchers and historians have access to the documentary history of this presidency and to ensure that the critical checks and balances built into our system function as the founders intended The creation of a record of President Trump’s meetings with foreign leaders also is critical for our government to carry out an effective foreign policy The next individual who becomes President should not be left to guess what promises or deals President Trump made on behalf of the American people when President Trump was performing a core constitutional duty 7 As numerous news reports document however President Trump has had at least five separate meetings with Russian President Vladimir Putin without note takers present meaning that no official U S record of those meetings exists In addition on at least one occasion President Trump confiscated a State Department interpreter’s notes after a secret meeting with President Putin in Germany and ordered the interpreter not to disclose to anyone what he had heard More recently President Trump had a one-on-one meeting in Vietnam with North Korea’s leader Kim Jong-Un with only two interpreters present apparently leaving no U S record of this interaction 4 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 5 of 39 8 These recordkeeping failures apparently extend to other White House officials like Senior White House Adviser Jared Kushner who in a recent meeting with top Saudi officials excluded State Department officials thereby avoiding the creation of a record of his conversations The absence of records in these circumstances when the President and his top advisers are exercising core constitutional and statutory powers causes real incalculable harm to our national security and the ability of our government to effectively conduct foreign policy because the documentary record of this administration’s foreign policy regarding Russia North Korea and Saudi Arabia will be unavailable to policy makers and forever lost to history 9 Beyond presenting a national security matter of deep concern the actions of the President and his top aides violate both the PRA the FRA and the Constitution’s Take Care Clause and deprive Plaintiffs and the public of the valuable records of this presidency Their policy and practice of failing to create—or affirmatively directing others not to create—records of meetings with Putin Kim Jong-Un Saudi officials and possibly others will harm Plaintiffs’ attempts to understand this presidency and help articulate and educate the public on what lessons should be learned Absent the requested relief the loss of these records likely will continue and create a growing hole in the historical record of the presidency JURISDICTION AND VENUE 10 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 28 U S C § 1361 mandamus and 28 U S C §§ 2201 and 2202 the Declaratory Judgment Act 11 Venue in this district is proper pursuant to 28 U S C § 1391 e 5 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 6 of 39 PARTIES 12 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 information made available to the public under the FRA and PRA including records of former presidents and uses the FOIA to obtain information about the government critical to its mission and purpose CREW has filed hundreds of FOIA requests since the start of the Trump administration including with those EOP components subject to the FOIA 13 CREW also has a longstanding interest in government compliance with recordkeeping laws including the PRA and the FRA CREW has brought numerous lawsuits to compel compliance with these laws including a lawsuit pending in the U S Court of Appeals for the D C Circuit CREW v Trump No 18-5150 D C Cir that challenges the failure of the President and EOP to comply with the mandatory non-discretionary duties the PRA imposes on them CREW’s interest in the preservation of presidential records also is evidenced by CREW's 2007 litigation of whether the EOP’s Office of Administration is an agency subject to the FOIA see Citizens for Responsibility Ethics in Washington v Office of Admin 559 F Supp 2d 9 D D C 2008 aff’d 566 F 3d 219 D C Cir 2009 a report entitled “Without a Trace The Story Behind the Missing White House E-Mails and the Violations of the Presidential Records Act ” see https www citizensforethics org press-release crew-releases-new-report-without-atrace-the-missing-white-house-emails-vio last visited April 30 2019 and a 2015 FOIA request 6 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 7 of 39 to the George W Bush Presidential Library seeking the production of all records of communications between August 1 2005 and February 1 2007 between the White House and Republican Members of the House that referred mentioned or pertained to then-Representative Mark Foley 14 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 CREW also anticipates that it will file FOIA requests for presidential records from this administration once they become available pursuant to the FOIA Failure to create presidential records and improper classification of agency records as presidential records harms CREW by preventing or delaying CREW’s access to agency and presidential records A president’s failure to obtain the Archivist’s approval in writing and to submit a disposal schedule to Congress prior to disposing of presidential records deprives CREW of an opportunity to learn of improper disposal decisions until long after they occur 15 Plaintiff National Security Archive “the Archive” founded in 1985 by journalists and scholars to check rising government secrecy 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 located at the George Washington University and is one of the leading non-profit users of the FOIA In these roles the Archive has established an extraordinary track record of highly credible award-winning investigative journalism and scholarship including receipt of the George Polk Award in 2000 for “piercing self-serving veils of government secrecy guiding journalists in search for the truth and informing us all ” Together with its founding director Scott Armstrong the Archive brought the 7 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 8 of 39 series of lawsuits against the Executive Office of the President that resulted in the recognition that White House email record-keeping practices and guidelines are subject to judicial review 16 Since its founding the Archive has filed over 1300 FOIA and declassification review requests with the Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan George H W Bush Clinton and George 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 Among other things the documents the Archive acquired from these presidential libraries have shed light on the Cuban Missile Crisis the origins of the Vietnam War President Nixon’s opening to China communications between the Soviet Union and the United States throughout the Cold War and as the Cold War ended and the U S role during the human rights atrocities in the former Yugoslavia and Rwanda Continued access to a full historical record of each modern presidency is critical to the Archive’s work The Archive intends to file requests with the Trump Presidential Library as soon as is legally permitted likely on a range of topics covering the Trump presidency’s foreign policy 17 Archive staff have published books based on records of former presidents For example Archive Executive Director Thomas S Blanton and Archive Senior Analyst Dr Svetlana Savranskaya have published two books based on head-of-state meeting transcripts from the Reagan and George H W Bush libraries combined with others from Soviet archives One volume also co-authored with Dr Vladislav Zubok analyzed the fall of the Berlin Wall in 1989 based on documents of heads-of-state meetings and the other published and analyzed a complete series of the Reagan and Bush superpower summit meeting transcripts with then-Soviet leader Mikhail Gorbachev Their future plans include filing FOIA requests for presidential records from the Trump administration as soon as they are legally permitted on a range of topics that likely 8 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 9 of 39 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 18 Another Archive staffer Senior Analyst William Burr has published books and other writings drawing on declassified records of presidential meetings with foreign leaders One book The Kissinger Transcripts The Top Secret Talks with Beijing and Moscow New Press 1998 published for the first time the White House record of President Richard Nixon’s meeting with Mao Zedong in February 1972 Another book Nixon’s Nuclear Specter The Secret Alert of 1969 Madman Diplomacy and the Vietnam War University Press Kansas 2015 drew upon records kept by National Security Adviser Henry Kissinger of his meetings and telephone conversations with President Nixon Other publications such as edited collections of documents posted on the Archive’s website have included declassified records prepared by State Department and White House officials of presidential meetings with foreign leaders 19 Plaintiff Society for Historians of American Foreign Relations “SHAFR” is a professional society dedicated to the study of U S foreign relations On behalf of its nearly 1 000 members it advances its mission “to promote the study advancement and dissemination of knowledge about U S foreign policy” by awarding research grants and prizes holding conferences publishing an academic journal Diplomatic History and furthering archival access to government documents 20 SHAFR’s members depend on preservation of and access to presidential records in order to present a full and accurate accounting of the past in their teaching public speaking exhibitions and publications SHAFR members have disseminated research findings to the public on the basis of archival research conducted in every presidential library SHAFR members have filed many thousands of FOIA and mandatory declassification review requests with 9 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 10 of 39 presidential libraries and have long advocated for the preservation declassification and public availability of government records notably including presidential records because of the fundamental importance of these records for their investigation of the country’s past 21 SHAFR members will begin using the internal diplomatic and national security records of the Trump administration as soon as they become available They and their scholarship on the Trump administration will be substantially harmed by a failure to properly create and maintain key presidential records Policymakers national security personnel political analysts and the wider public rely on the archival research SHAFR members conduct on presidential records for evidence-based analyses of presidential decision-making and other topics of great importance to U S democracy Without the proper creation and preservation of presidential records SHAFR members will not be able to fulfill their professional responsibility to provide evidence-based assessments of the conduct of U S foreign policy during the Trump administration 22 SHAFR’s journal Diplomatic History routinely publishes articles based on new research in presidential libraries such as a 2017 article by Frédéric Bozo based on FOIA requests relating to Iraq from the Clinton Presidential Library Recent books published by SHAFR members that are based on records in presidential libraries include Kelly J Shannon’s U S Foreign Policy and Muslim Women’s Human Rights which used Clinton Library records to trace that administration’s global women’s rights policies Books by SHAFR members that rely heavily on accounts of conversations and meetings between U S presidents and foreign leaders include Jeffrey Engel’s When the World Seemed New George H W Bush and the End of the Cold War 10 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 11 of 39 23 For all Plaintiffs access to presidential records is essential to fulfill their core missions The ongoing failure of President Trump and his top advisors to create and preserve records of their conversations and meetings with certain foreign leaders and their actions that have prevented the State Department from creating and preserving its own records deprive and will continue to deprive the Plaintiffs of access to the documentary history of this presidency and administration In the process Plaintiffs and other members of the American public will lose vital information and insight into presidential policies and decision making which are critical to interpret and prevent illegal or unwise government action 24 President 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 requirement that he take all necessary steps 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 preserved and maintained as presidential records President Trump also has a unique responsibility as President to take care that laws including the PRA FRA and FOIA are faithfully executed 25 Defendant Executive Office of the President “EOP” includes the agency known as the EOP and its individual components With the exception of 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 the EOP is subject to the PRA STATUTORY FRAMEWORK 26 Congress enacted the PRA in 1978 to ensure both “the preservation of the historical record of the future Presidencies” and “public access to the materials” of a presidency 11 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 12 of 39 H R Rep No 95-1487 95th Cong 2d Sess § 2 1978 Through the PRA and its predecessor statute the Presidential Recordings and Materials Preservation Act of 1974 Congress sought to prevent a repeat of the protracted legal battle that ensued between the United States and President Richard M Nixon over the ownership and control of his presidential records after leaving office 27 To preserve the historical record the PRA directs the President as follows 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 emphasis added 28 The PRA further specifies that “ t he United States shall reserve and retain complete ownership possession and control of Presidential records ” 44 U S C § 2202 29 In imposing these requirements Congress through the PRA recognized that with the President “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 a president’s activities to be “truly private and unrelated to the performance of his duties ” Id § 12 30 The PRA’s definition of “presidential records” reflects this breadth by defining presidential records 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 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 12 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 13 of 39 44 U S C § 2201 2 The PRA also includes within the definition of “documentary material” “electronic or mechanical recordations ” 44 U S C § 2201 1 31 The PRA also defines what are not presidential records a category that includes “any documentary materials that are official records of an agency ” 44 U S C § 2201 2 B The PRA cross-references the definition of agency records supplied by the FOIA which makes clear that agency information made or received by an agency while conducting agency business is an agency record 5 U S C § 552 f See also 44 U S C § 3301 defining federal record for purposes of FRA 32 The PRA imposes a multi-step process on the President before any presidential records can be destroyed While in office a President may dispose of his or her presidential records only after making an affirmative determination that the records “no longer have administrative historical informational or evidentiary value ” 44 U S C § 2203 c After making that determination the President must obtain the written views of the Archivist on the proposed destruction 44 U S C § 2203 c 1 - 2 If the President receives written confirmation that the Archivist intends to take any action with respect to the proposed destruction the President must notify the appropriate congressional committee of the president’s intention 60 days before the proposed disposal 44 U S C § 2203 d This process reflects the care Congress took to ensure that presidential records could be destroyed only after considered deliberation by multiple stakeholders 33 Presidential records ultimately are made available to members of the public including Plaintiffs through the FOIA Once a President leaves office the Archivist assumes custody and control over the former president’s records 44 U S C § 2203 g Beginning five years after a President leaves office members of the public can begin filing FOIA requests for 13 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 14 of 39 presidential records 44 U S C § 2204 b 2 Although some materials can be withheld or redacted for an extended period of time they too eventually become available to members of the public including Plaintiffs 44 U S C § 2204 a 34 The House Report on the PRA suggests that Congress intended the PRA to be binding on the President The report stated that the PRA “would terminate the tradition of private ownership of Presidential papers and the reliance on volunteerism to determine the fate of their disposition Instead the preservation of the historical record of the future Presidencies would be assured and public access to the materials would be consistent under standards fixed in law ” H R No 95-1487 95th Cong 2d Sess § 2 1978 emphasis added See Sara Worth Trump and the Toothless Presidential Records Act Yale Law School Media Freedom Information Access Clinic Mar 11 2019 available at https law yale edu mfia case-disclosed trump-andtoothless-presidential-records-act 35 Agency records are subject to different records creation maintenance and destruction rules codified in the FRA 44 U S C §§ 3101 et seq For the purposes of the FRA the term records includes 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 cross-referenced in and applied to chapter 31 of title 44 by 44 U S C § 2901 1 36 The FRA requires that the “head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization functions policies 14 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 15 of 39 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 FRA further requires that the head of each agency establish a records management program 44 U S C § 3102 establish safeguards against the removal or loss of records 44 U S C § 3105 and “notify the Archivist of any actual impending or threatened unlawful removal defacing alteration corruption deletion erasure or other destruction of records in the custody of the agency” and with the assistance of the Archivist “initiate action through the Attorney General for the recovery of records” unlawfully removed 44 U S C § 3106 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 exemptions 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 government entities that fall outside the Administrative Procedure Act’s definition of “agency ” including the Office of the President are not subject to the FOIA initially See e g Kissinger v Reporters Comm for Freedom of the Press 445 U S 136 156 1980 However as described above the public may request documents under FOIA 15 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 16 of 39 beginning five years after the conclusion of a president’s term of office or last consecutive term of office 44 U S C § 2204 a b 2 FACTUAL BACKGROUND 39 Accurate records of a president’s interactions with foreign leaders are a matter of extreme importance for the nation’s foreign policy and the historical record Those interests are heightened in a presidency that has been marked by departures from the normal procedures of international diplomacy including multiple reports of the refusal to create records of highestlevel meetings and significant divergences between the administration’s version of a conversation and that of the foreign government involved 40 In May 2017 notable discrepancies appeared between the official readout of the President’s meeting with Russian diplomats and reports that emerged later As president Mr Trump met with Russian Foreign Minister Sergey Lavrov and then-Russian Ambassador Sergey Kislyak on May 10 2017 in the Oval Office The readout of the meeting released by the White House Office of the Press Secretary states that among other topics discussed President Trump “emphasized the need to work together to end the conflict in Syria ” and “emphasized his desire to build a better relationship between the United States and Russia ” Readout of President Donald J Trump’s Meeting with Foreign Minister Sergey Lavrov of Russia May 10 2017 available at https ua usembassy gov readout-president-donald-j-trumps-meeting-foreignminister-sergey-lavrov-russia 41 Several days later it was revealed that beyond what was in the readout President Trump also disclosed highly classified “code-word” information to the Russian Foreign Minister and Ambassador Greg Miller and Greg Jaffe Trump revealed highly classified information to Russian foreign minister and ambassador Washington Post May 15 2017 available at 16 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 17 of 39 https www washingtonpost com world national-security trump-revealed-highly-classifiedinformation-to-russian-foreign-minister-and-ambassador 2017 05 15 530c172a-3960-11e7-9e48c4f199710b69_story html last visited April 30 2019 In addition President Trump told the two Russians that his firing the previous day of FBI Director James B Comey “had relieved ‘great pressure’” and that he was “not under investigation ” Matt Apuzzo Maggie Haberman and Matthew Rosenberg Trump Told Russians That Firing ‘Nut Job’ Comey Eased Pressure From Investigation New York Times May 19 2017 available at https www nytimes com 2017 05 19 us politics trump-russia-comey html last visited April 30 2019 42 In July 2017 President Trump had his first reported face-to-face meeting with President Putin in Hamburg Germany during the G-20 Summit Reportedly President Trump confiscated his interpreter’s notes after the meeting and ordered the interpreter not to disclose to anyone what he had heard including to administration officials Peter Baker Trump and Putin Have Met Five Times What Was Said Is a Mystery New York Times Jan 15 2019 available at https www nytimes com 2019 01 15 us politics trump-putin-meetings html last visited April 30 2019 Greg Miller Trump has concealed details of his face-to-face encounters with Putin from senior officials in administration Washington Post Jan 13 2019 available at https www washingtonpost com world national-security trump-has-concealed-details-of-hisface-to-face-encounters-with-putin-from-senior-officials-in-administration 2019 01 12 65f6 686c-1434-11e9-b6ad-9cfd62dbb0a8_ story html last visited April 30 2019 The interpreter for that summit as with every meeting President Trump has with foreign leaders was an employee or contractor of the State Department’s Office of Language Services See 6 FAM Foreign Affairs Manual 1530 Assignment of Interpreters to Official Visits and High-Level Meetings 17 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 18 of 39 43 State Department translators and interpreters “serve as the ears voice and words in foreign languages of the President the First Lady the Vice President the Secretary of State the National Security Advisor and other Cabinet officials ” U S Department of State Diplomacy in Action Office of Language Services General Information available at https www state gov m a ols index htm last visited April 30 2019 They are part of “a tradition of language support for the conduct of foreign policy that dates back to 1789 ” Id In past administrations interpreters not only provided interpretation services in meetings between presidents and foreign heads of state or foreign ministers but also prepared written memoranda memorializing what was said For example a Memorandum of Conversation describing what was discussed at a meeting between the President and the German chancellor on June 4 1965 regarding Vietnam available at https history state gov historicaldocuments frus196468v02 d331 last visited April 30 2019 was drafted by the interpreter 44 Although then-Secretary of State Rex Tillerson also was at the G-20 Summit and provided some limited details publicly about the meeting his account reportedly “is at odds with the only detail that other administration officials were able to get from the interpreter ” specifically that when Putin denied “any Russian involvement in the U S Election Trump responded by saying ‘I believe you ’” Miller Washington Post Jan 13 2019 45 During a dinner that followed President Trump had a conversation with President Putin without any accompanying American witnesses Peter Baker Trump and Putin Have Met Five Times What Was Said Is a Mystery New York Times Jan 15 2019 available at https www nytimes com 2019 01 15 us politics trump-putin-meetings html U S officials did not learn of these actions until a senior State Department official and a White House advisor “sought information from the interpreter beyond a readout shared by Tillerson ” Miller 18 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 19 of 39 Washington Post Jan 13 2019 The White House did not disclose the private discussion until after word had leaked out from other sources Julie Hirschfeld Davis Trump and Putin Held a Second Undisclosed Private Conversation New York Times Jul 18 2017 available at https www nytimes com 2017 07 18 world europe trump-putin-undisclosed-meeting html last visited April 30 2019 46 Following these meetings President Trump tweeted that in his meeting with President Putin he “strongly pressed President Putin twice about Russian meddling in our election He vehemently denied it ” Donald J Trump @realDonaldTrump July 9 2017 available at https twitter com realdonaldtrump status 884012097805406208 last visited April 30 2019 President Trump also denied that sanctions had been discussed during the meeting Donald J Trump @realDonaldTrump July 9 2017 available at https twitter com realdonaldtru mp status 884027201804488704 last visited April 30 2019 47 Russian officials however provided an “alternative account” claiming the President “had accepted Mr Putin’s denial of the election interference and had even said that some in the United States were ‘exaggerating’ Moscow’s role without proof ” Julie Hirschfeld Davis David E Sanger and Glenn Thrush Trump Questions Putin on Election Meddling at Eagerly Awaited Encounter New York Times July 7 2017 available at https www nytimes com 2017 07 07 world europe trump-putin-g20 html last visited April 30 2019 The absence of any transcripts or notes from the meeting makes it impossible to verify the veracity of either the President’s claims or the characterizations of the meeting provided by Russian officials 48 Presidents Trump and Putin also chatted informally a number of times during the November 2017 Asia-Pacific Economic Cooperation Summit in Da Nang Vietnam Dan Merica Trump Putin shake hands chat multiple times at Asia-Pacific summit CNN Nov 11 2017 19 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 20 of 39 available at https www cnn com 2017 11 09 politics donald-trump-vladimir-putinvietnam index html last visited April 30 2019 While White House Press Secretary Sarah Sanders told reporters that the two would not have a formal meeting during the summit President Putin’s spokesperson said “ t he meeting will take place on the sidelines ” Id Despite the “diplomatic dust-up” from their previous meeting at the G-20 Summit in Germany over whether President Trump had in fact accepted President Putin’s denials of any Russian meddling in the 2016 presidential election id reportedly no official transcript or notes of their “sidelines” meetings in Vietnam exist Baker New York Times Jan 15 2019 49 On July 16 2018 President Trump held a much-heralded summit with President Putin in Helsinki Finland During their two-hour private meeting the two were accompanied only by interpreters Adam Taylor Trump met Putin in Helsinki More than 200 days later will we ever find out what they said Washington Post March 5 2019 available at https www washingtonpost com world 2019 03 05 trump-met-putin-helsinki-more-than-days-later-will-weever-find-out-what-they-said last visited April 30 2019 Following their tête-à-tête Presidents Trump and Putin held a press conference during which President Trump ignoring the findings of U S intelligence agencies reported that President Putin had provided him with an “extremely strong and powerful” denial of Russian interference in the 2016 election Taylor Washington Post Mar 5 2019 50 When subsequently questioned about what the two discussed in Helsinki Director of National Intelligence Dan Coats stated “I’m not in a position to either understand fully or talk about what happened in Helsinki ” Aaron Blake Dan Coats’s subtle-yet-stunning admission about Trump’s meeting with Putin Washington Post Aug 2 2018 available at https www 20 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 21 of 39 washingtonpost com news the-fix wp 2018 08 02 trumps-meeting-with-putin-is-apparentlybeing-kept-secret-even-from-u-s-intelligence last visited April 30 2019 51 White House National Security Advisor John Bolton claimed President Trump had told President Putin at the Helsinki summit that “U S troops would stay in Syria until Moscow forced out its Iranian allies ” Taylor Washington Post Mar 5 2019 But with no transcript from the summit or observers to the meeting there is no way to verify the accuracy of Bolton’s claims Reportedly President Trump’s interpreter left the meeting “with pages of notes ” Miller Washington Post Jan 13 2019 but there is no indication those notes have been shared with anyone 52 President Trump’s fifth meeting with President Putin took place in Buenos Aires Argentina in November 2018 during another G-20 Summit Like his second meeting with President Putin in Germany President Trump conducted the conversation without anyone else from the U S present beyond his wife—no translator no note-taker and no official member of his delegation James Politi Demetri Sevastopulo and Henry Foy Trump sat down with Putin at G20 without US note-taker Financial Times Jan 29 2019 available at https www ft com content 61842ec4-23a0-11e9-8ce6-5db4543da632 Alex Ward Trump met Putin without staff or note takers present – again Vox Jan 29 2019 available at https www vox com 2019 1 29 18202515 trump-putin-russia-g20-ft-note last visited April 30 2019 Instead President Putin had his own translator present Id As a result no U S transcript or other record of the meeting exists According to “people familiar with the conversation it appeared longer and more substantive than the White House has acknowledged ” Politi Sevastopulo and Foy Financial Times Jan 29 2019 21 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 22 of 39 53 Beyond the optics of President Trump meeting repeatedly in private with President Putin the absence of any detailed written record of President Trump’s five publicly reported meetings with President Putin have shielded those conversations from the public and prevented even top U S officials from knowing fully what President Trump said to and promised President Putin who heads a country that is one of the United States’ main foes A former Russia adviser to President Bill Clinton expressed how “disconcerting” it is “to hide information from your own team ” and “ v eterans of past administrations” explained that “ w hen they meet with foreign leaders presidents typically want at least one aide in the room—not just an interpreter — to avoid misunderstandings later ” Baker New York Times Jan 15 2019 Former Deputy Secretary of State Strobe Talbott said that proceeding in secrecy like President Trump has done “handicaps the U S government—the experts and advisers and Cabinet officers who are there to serve the president —and it certainly gives Putin much more scope to manipulate Trump ” Miller Washington Post Jan 13 2019 President Trump’s apparent categorical exemption of meetings with President Putin from the scope of the PRA violates his non-discretionary obligations 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 preserved and maintained ” 44 U S C § 2203 a 54 In the absence of records of President Trump’s conversations with President Putin U S officials reportedly have had to rely instead on “U S intelligence agencies tracking the reaction in the Kremlin ” Miller Washington Post Jan 13 2019 55 According to President Putin’s public statements in addition to these one-on-one meetings Presidents Putin and President Trump talk “regularly” by phone Tucker Higgins Russian leader Vladimir Putin President Trump and I ‘regularly talk over the phone’ CNBC 22 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 23 of 39 June 5 2018 available at https www cnbc com 2018 06 05 putin-says-he-talks-to-trumpregularly html last visited April 30 2019 Presidential aides reportedly have been allowed to listen in on only some of these conversations and often Russia has been the “first to disclose those calls when they occur and release statements characterizing them in broad terms favorable to the Kremlin ” Miller Washington Post Jan 13 2019 56 One of the more noteworthy phone conversations between Presidents Putin and Trump occurred after President Putin was re-elected in an election that was widely perceived as corrupt and fundamentally anti-democratic Despite the notation in President Trump’s briefing papers “DO NOT CONGRATULATE ” President Trump in fact congratulated the newly reelected President Putin Carol D Leonnig David Nakamura and Josh Dawsey Trump’s national security advisers warned him not to congratulate Putin He did it anyway Washington Post Mar 20 2018 available at https www washingtonpost com politics trumps-national-securityadvisers-warned-him-not-to-congratulate-putin-he-did-it-anyway 2018 03 20 22738ebc-2c6811e8-8ad6-fbc50284fce8_story html 57 More recently President Trump met with North Korean leader Kim Jong-Un in Hanoi Vietnam at a critical second nuclear summit In a highly unusual move the only other individuals present for their meeting were interpreters who were not there to create a record of the conversation with note takers again banned from the meeting leaving U S policymakers in the dark about what transpired and leaving no historical record Deb Riechmann and Foster Klug Trump-Kim go one-on-one Who will know what was really said Associated Press Feb 27 2019 available at https www apnews com 9ae27ac4e4254958adcd5350881f983e last visited on April 30 2019 Experts on North Korea have expressed concerns that these private 23 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 24 of 39 conversations provide the North Korean leader with “an opportunity to win concessions from Trump that working-level officials would have advised him not to offer ” Id 58 Congress for its part expressed concerns that these practices violate the PRA in a letter from the Chairs of the House Committee on Oversight and Reform the House Committee on Foreign Affairs and the House Permanent Select Committee on Intelligence to White House Acting Chief of Staff Mick Mulvaney dated February 21 2019 The letter notes that it appears President Trump has violated the PRA based on press reports of President Trump confiscating the notes of his interpreter from the Hamburg Germany summit earlier reports that President Trump physically tore up his records leaving to staff the task of taping them back together the inability of U S officials to obtain information about the President’s Helsinki meeting with President Putin and reports that President Trump may not be documenting the calls and meetings that do not appear on his schedule To date the White House has not responded to this letter 59 On March 4 2019 these same Chairs on behalf of their committees wrote a letter to Secretary of State Michael Pompeo concerning communications between Presidents Trump and Putin The letter noted the multiple press reports of President Trump taking steps to conceal the details of his conversations with President Putin and expressed the concern that if true they would “raise profound national security counterintelligence and foreign policy concerns especially in light of Russia’s ongoing active measures campaign to improperly influence American elections ” The letter went on to note that if true President Trump’s actions “undermine the proper functioning of government most notably the State Department’s access to critical information germane to its diplomatic mission and its ability to develop and execute foreign policy that advances our national interests ” The Chairs on behalf of their committees 24 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 25 of 39 further expressed their “serious concerns that materials pertaining to specific communications may have been manipulated or withheld from the official record in direct contravention of federal laws which expressly require that Presidents and other administration officials preserve such materials ” 60 Recent reporting reveals that these recordkeeping failures extend to other top White House officials Senior White House Advisor Jared Kushner whom the President has charged with bringing peace to the Middle East recently met in Saudi Arabia with Saudi Crown Prince Mohammed bin Salman and King Salman According to a White House statement the three discussed “the peace efforts as well as American-Saudi cooperation and plans to improve conditions in the region through investment ” Ben Hubbard Kushner Met With Saudi Crown Prince to Push Mideast Peace Plan New York Times Feb 27 2019 available at https www ny times com 2019 02 27 world middleeast kushner-Mohammed-bin-Salman html last visited April 30 2019 Reportedly U S embassy staff in Riyadh “were not read in on the details of Jared Kushner’s trip or the meetings he held with members of the country’s Royal Court ” Erin Banco Embassy Staffers Say Jared Kushner Shut Them Out of Saudi Meetings Daily Beast March 7 2019 available at https www thedailybeast com embassy-staffers-say-jaredkushner-shut-them-out-of-saudi-meetings last visited April 30 2019 The only State Department official who was allowed to attend the meeting is someone who focuses on Iran Id As a result the U S embassy “was largely left in the dark on the details of Kushner’s schedule and his conversations with Saudi officials ” Id 61 Rep Eliot L Engel Chair of the House Committee on Foreign Affairs expressed his concern with the sidelining of Embassy personnel during the planning and conducting of Kushner’s Middle East meetings in a March 28 2019 letter to Secretary of State Pompeo As 25 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 26 of 39 Chairman Engel explained “U S government resources are expended to support embassies in countries around the world to aid in the planning and execution of U S foreign policy and an official visit to the Middle East by a senior White House aide would presumably bear meaningfully on the conduct of U S foreign policy in that region ” See https www docu mentcloud org documents 5782881-Eliot-Engel-Letter html last visited April 30 2019 62 This policy and practice by President Trump and other top White House officials like Jared Kushner of failing and or refusing to create or preventing others from creating records of their meetings with foreign leaders including at least Putin Kim Jong-Un and Saudi officials deviates sharply from the protocols and practices of prior administrations Victoria J Nuland a career State Department diplomat explained “All five of the presidents whom I worked for Republicans and Democrats wanted a word-for-word set of notes if only to protect the integrity of the American side of the conversation against later manipulation by the Soviets or the Russians ” Baker New York Times Jan 15 2019 Public reporting confirms the views of former U S officials that the President’s recordkeeping practices differ radically from those of previous presidents “who have relied on senior aides to witness meetings and take comprehensive notes then shared with other officials and departments ” Miller Washington Post Jan 13 2019 63 Consistent with this reporting on information and belief in previous administrations when presidents and other top White House officials met with foreign leaders in another country or in the United States designated officials had the responsibility of preparing a record of the meeting Depending on the administration’s procedures State Department officials including at times State Department interpreters sometimes drafted Memoranda of Conversation or “Memcoms ” The record of the meeting would then be shared with officials who had a need to 26 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 27 of 39 know at the White House the State Department and other agencies The memcon would become part of the official record at the White House and the agencies 64 On information and belief in previous administrations when presidents had “one- on-one” conversations with foreign leaders those interactions were almost without exception three-on-three Each principal would be joined by two others a translator and a note-taker In some cases the notetaker was a State Department employee In other cases the notetaker was a National Security Council employee Although Plaintiffs are aware of instances in which translation and notetaking responsibilities were fulfilled by a single individual that practice predates 1970 65 On information and belief in previous administrations when presidents in fact had an actual one-on-one conversation with a foreign leader the protocol called for a member or members of the president’s delegation to be debriefed on what was said in that conversation which would then be written up and either included in an official record of the meeting or sent out in a new email In both instances the description of the one-on-one meeting between a President and foreign leader would be part of the official State Department record 66 On information and belief in addition to these federal agency records EOP components such as the National Security Council often would generate documents memorializing what was said in meetings between the President and or his top aides and foreign leaders regardless of where those meetings occurred These records were treated as presidential records that were preserved as part of the record of that presidency 67 On information and belief in previous administrations when presidents had telephone conversations with foreign leaders a U S transcriber would be tasked with listening in on the calls and preparing a transcript The transcript which was designated as the Official Call 27 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 28 of 39 Transcript was prepared in addition to any readout the White House prepared for public and other dissemination and was preserved as a presidential record 68 Beyond these recordkeeping failures President Trump and his White House have ignored other obligations the PRA imposes For example notwithstanding his preservation obligations President Trump had and may still have a habit of ripping up papers when he was done with them which some described as “his unofficial ‘filing system ’” Annie Karni Meet the guys who tape Trump’s papers back together Politico June 10 2018 available at https www politico com story 2018 06 10 trump-papers-filing-system-635164 last visited April 30 2019 69 Further Jared Kushner reportedly used an encrypted message service WhatsApp as well as a personal email account to conduct official business including to communicate with Saudi Crown Prince Mohammed bin Salman Andrew Desiderio and Kyle Cheney Cummings demands docs on Kushner’s alleged use of encrypted app for official business Politico Mar 21 2019 available at https www politico com story 2019 03 21 elijah-cummings-jared-kushnerencrypted-app-1230978 last visited April 30 2019 Similarly White House Advisor Ivanka Trump also reportedly conducts official White House business through a personal email account as did former Deputy National Security Adviser K T McFarland when communicating about the transfer of “‘sensitive U S nuclear technology to Saudi Arabia ’” id notwithstanding the statutory requirement that they use only their official electronic message accounts except in certain specifically prescribed circumstances 44 U S C § 2209 a These other recordkeeping violations also are the subject of ongoing congressional inquiries Id 70 Moreover use by White House staff and others associated with the Trump administration and the Trump campaign of encrypted communications stymied the investigation of Special Counsel Robert Mueller In his recently released Report on the Investigation Into 28 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 29 of 39 Russian Interference In the 2016 Presidential Election Mr Mueller noted in his executive summary “the Office learned that some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records ” Id Executive Summary to Volume I at 10 71 The recently released report by Special Counsel Mueller also revealed President Trump’s general antipathy toward note-taking In a meeting with then-White House Counsel Don McGahn the President chastised him for taking notes proclaiming “Lawyers don’t take notes I never had a lawyer who took notes ” Id Vol II p 117 PLAINTIFFS’ CLAIMS FOR RELIEF CLAIM ONE For Mandamus Relief Compelling President Trump His Staff and the EOP to Comply with Their Non-Discretionary Duties Under the Presidential Records Act 72 Plaintiffs re-allege and incorporate by reference all preceding paragraphs 73 Mandamus relief is appropriate where 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 74 The PRA imposes on the President his staff and the EOP several non- discretionary mandatory obligations These include the requirements that 29 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 30 of 39 a the President through the implementation of records management controls and other necessary actions “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 b “Documentary materials produced or received by the President the President’s staff or units or individuals in the Executive Office of the President the function of which is to advise or assist the President shall to the extent practicable be categorized as Presidential records or personal records upon their creation or receipt and be filed separately” 44 U S C § 2203 b c the President maintain recordkeeping polices guidelines and practices that consistent with the PRA and FRA accurately classify records as presidential records and do not improperly treat agency records as presidential records in violation of the PRA and FRA See Armstrong v Exec Office of the President Office of Admin 1 F 3d 1274 1294 D C Cir 1993 “ T he 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 ” and d the President “obtain the views in writing of the Archivist concerning the proposed disposal of such Presidential records” and produces a disposal schedule to the appropriate congressional committee before disposing of presidential records during his term of office 44 U S C § 2203 c 30 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 31 of 39 75 The PRA leaves the President no discretion whether to comply with these requirements The President cannot remove from the mandatory requirement to create and preserve records an entire class of communications the President and his top advisors have with foreign leaders either in person or by telephone Such records must be created must “be categorized as Presidential records or personal records upon their creation or receipt and be filed separately ” 44 U S C § 2203 b and the President must issue classification policies guidelines and practices that are consistent with the statutory definitions of presidential records in the PRA and agency records in the FRA Finally the President also has no discretion as to whether to seek the views of the Archivists or to transmit a disposal schedule to Congress before disposing of presidential records See 44 U S C § 2203 c 76 As detailed above President Trump personally as well as by and through his staff has violated each of these mandatory non-discretionary obligations by engaging in a policy and practice of refusing to create records of his meetings and conversations with foreign leaders by seizing interpreter’s notes which are agency records and effectively classifying them as presidential records by asserting unilateral and exclusive control over the contents of meetings by the President and his staff with foreign leaders by maintaining recordkeeping polices guidelines and practices that improperly classify agency records as presidential records and by destroying or ordering the disposal of presidential records without obtaining the Archivist’s views in writing or producing a disposal schedule to Congress as the PRA requires 77 Review of these violations is essential to “prevent the PRA from becoming a potential presidential carte blanche to shield materials from the reach of the FOIA ” Armstrong 1 F 3d at 1292 31 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 32 of 39 78 Plaintiffs therefore are entitled to mandamus relief ordering the President his staff and the EOP to comply with their mandatory non-discretionary duties under the PRA CLAIM TWO For a Declaratory Judgment that Defendants’ Policy and Practice of Failing or Refusing to Create Records of the President’s and His Staff’s Meetings and Conversations with Foreign Leaders Violates the Presidential Records Act 79 Plaintiffs re-allege and incorporate by reference all preceding paragraphs 80 The PRA imposes on the president his staff and the EOP the non-discretionary mandatory obligation to create records documenting “the activities deliberations decisions and policies that reflect the performance of the President’s constitutional statutory or other official or ceremonial duties ” 44 U S C § 2203 a 81 Despite this clear and unambiguous command President Trump and his staff have a policy and practice of repeatedly failing and or affirmatively refusing to create records of their meetings and conversations with foreign leaders in violation of their mandatory nondiscretionary legal obligations to create records documenting their actions deliberations decisions and policies that reflect on the President’s performance of his duties 44 U S C § 2203 a This policy and practice amounts to a categorical exemption of such meetings and conversations from the scope of the PRA 82 President Trump also has impermissibly removed from the scope of the PRA certain categories of communications specifically certain foreign policy activities deliberations decisions and policies that reflect the performance of the president’s constitutional statutory or other official or ceremonial duties 83 The unlawful actions of President Trump his staff and the EOP have deprived Plaintiffs of future access through the FOIA to documents they are entitled to receive by law that 32 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 33 of 39 would shed light on the President’s actions deliberations decisions and policies all information Plaintiffs need to perform their core missions 84 Plaintiffs are therefore entitled to a declaratory judgement that President Trump his staff and the EOP have violated their non-discretionary statutory duties under the PRA 44 U S C §§ 2201–2209 CLAIM THREE For a Declaratory Judgment that the President’s Classification of Interpreter Notes as Presidential Records and His Assertion of Unilateral and Exclusive Control Over the Contents of Meetings by the President and His Staff With Foreign Leaders Violate the Presidential Records Act and the Federal Records Act 85 Plaintiffs re-allege and incorporate by reference all preceding paragraphs 86 The classification by the President or his staff and the EOP of records created by employees of the Department of State as presidential records contravenes both the PRA and FRA 87 Similarly the President’s assertion of unilateral and exclusive control over the contents of meetings he and his staff have with foreign leaders also contravenes the PRA and FRA 88 As laid out in detail in the preceding paragraphs Congress established different maintenance and disclosure regimes for agency records and presidential records but both statutes impose affirmative non-discretionary obligations to create records in the first instance See 44 U S C § 3101 44 U S C § 2203 a Agency records are governed by the FRA and available for public access through the FOIA as soon as they are created See 5 U S C § 552 a f Presidential records by contrast are governed by the PRA and publicly available through the FOIA only after a President has left office See 5 U S C § 2204 Congress also established different regimes for disposing of agency records and presidential records See 44 U S C § 33 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 34 of 39 3106 44 U S C § 2203 c - e All of these distinctions rest on a fundamental assumption—that records are created in the first instance and properly classified as agency or presidential records upon their creation 89 On information and belief the individual or individuals who have provided interpretation or translation services to the President in bilateral meetings with foreign heads of state are employees of the Department of State 90 On information and belief State Department officials and other federal agency personnel are charged with creating and transmitting records of the meetings and conversations the President and his staff have with foreign heads of state 91 Accordingly the records that those State Department employees create while providing interpretation or translation services to President Trump and those records they create memorializing the President’s meetings and conversations are agency records for the purposes of the FRA are subject to the management and disposal requirements of the FRA and can be publicly accessed through the FOIA immediately upon their creation subject to any applicable FOIA exemption See 44 U S C § 3101 et seq 5 U S C § 552 92 The President’s classification of these agency records as presidential records and his assertion of unilateral and exclusive control over all information that flows from these meetings upset the entire federal recordkeeping regime that Congress established The effect of this classification is to deny Plaintiffs and other members of the public the opportunity to access agency records upon their creation It also denies agencies access to and control of information needed to conduct agency business and comply with their obligations under the FRA 93 Plaintiffs are therefore entitled to a declaratory judgment that the Defendants’ directives that the Department of State not create or maintain records of the president’s bilateral 34 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 35 of 39 meetings with certain foreign heads of state and the President’s assertion of unilateral and exclusive control over the contents of meetings he and his staff have with foreign leaders violate the PRA and the FRA CLAIM FOUR For a Declaratory Judgment that the President’s Failure to Obtain the Archivist’s Written Views and to Transmit a Disposal Schedule to Congress Prior to Disposing of Presidential Records Violates the Presidential Records Act 94 Plaintiffs re-allege and incorporate by reference all preceding paragraphs 95 The President his staff and the EOP must engage in a basic nondiscretionary process before disposing of presidential records They must obtain the views of the Archivist in writing and transmit a disposal schedule to Congress prior to disposing of a presidential record See 44 U S C § 2203 c d 96 President Trump has asserted or established a policy practice or guideline of treating records created by individuals providing translation or interpretation services to him and the contents of his and his staff’s meetings with foreign heads of state as exclusively presidential records See id 97 President Trump has disposed of presidential records without first obtaining the views of the Archivist in writing and transmitting a disposal schedule to Congress prior to disposing of the record 98 Plaintiffs are therefore entitled to a declaratory judgment that by failing to obtain the views of the Archivist in writing and transmitting a disposal schedule to Congress prior to disposing of a presidential record Defendants are violating the PRA 35 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 36 of 39 CLAIM FIVE For a Declaratory Judgement that President Trump’s Noncompliance with the Presidential Records Act and Federal Records Act Is a Violation of his Constitutional Obligation to Take Care to Faithfully Execute the Law and Injunctive Relief to Ensure His Future Compliance with These Obligations 99 Plaintiffs re-allege and incorporate by reference all preceding paragraphs 100 The failure of President Trump his staff and the EOP to create and maintain records documenting “the activities deliberations decisions and policies that reflect the performance of the President’s constitutional statutory or other official or ceremonial duties ” 44 U S C § 2203 a contravenes Congress’ core purposes in enacting the PRA “the preservation of the historical record of the future Presidencies” and “public access to the materials” of a presidency H R Rep No 95-1487 95th Cong 2d Sess § 2 1978 101 The interference by the President with the duty of the Department of State to “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 contravenes one of Congress’s core purposes in enacting the FRA to ensure that agencies to which it has delegated power and appropriated resources create a record of their essential business Failure to create these records stymies congressional and public oversight and impedes agencies like the Department of State from carrying out their essential missions It also excludes such records from the reach of the FOIA for up to twelve years 44 U S C § 2204 a 102 By and through his actions President Trump has violated an obligation that the Constitution places solely on the President—to take care that the laws be faithfully executed—by directing or causing violations of the PRA and FRA 36 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 37 of 39 103 The President’s violations of the Take Care Clause have harmed Plaintiffs and other members of the public by delaying or denying access to agency records that should be accessible through the FOIA 104 The President’s violations of the Take Care Clause have harmed Plaintiffs and other members of the public by denying them eventual access to presidential records through the FOIA once President Trump leaves office 105 Plaintiffs are therefore entitled to a declaratory judgment that the President’s failure and or outright refusal to comply with his mandatory non-discretionary obligations under the PRA to create and preserve records and his interference with the State Department’s compliance with its non-discretionary obligations under the FRA are contrary to law and violate the President’s constitutional obligation to take care that the law be faithfully executed See 44 U S C § 2203 a 44 U S C § 3101 106 Plaintiffs are also entitled to injunctive relief ensuring President Trump’s future compliance with his obligation to take care that the record-creating classification and procedural obligations imposed by the PRA on the President and FRA on executive branch agencies are faithfully executed See id PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request that this Court 1 Declare that Defendants’ policy and practice of failing to create and preserve records documenting the activities deliberations decisions and policies that reflect the performance of the President’s constitutional statutory or other official or ceremonial duties violates the PRA 37 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 38 of 39 2 Declare that the President’s policy and practice of destroying records of his meetings with foreign leaders without following mandatory non-discretionary notification requirements violates the PRA 3 Declare that the President’s policy and practice of exercising control over records of and information about his meetings with foreign leaders that were created by agency officials violates the PRA and the FRA 4 Order all defendants in the form of injunctive and mandamus relief to maintain a policy and practice of creating and preserving records documenting the activities deliberations decisions and policies that reflect the performance of the President’s constitutional statutory or other official or ceremonial duties 5 Declare that Defendants’ policy and practice of failing and or outright refusal to comply with their mandatory non-discretionary obligations under the PRA to create and preserve records is contrary to law and violates the President’s constitutional obligation to take care that the law be faithfully executed 6 Grant such other and further relief as the Court may deem just and proper Respectfully submitted CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON _________________________________ Anne L Weismann D C Bar No 298190 Conor M Shaw D C Bar No 1032074 1101 K Street N W Washington D C 20005 Phone 202 408-5565 Email aweismann@citizensforethics org Email cshaw@citizensforethics org 38 Case 1 19-cv-01333 Document 1 Filed 05 07 19 Page 39 of 39 BAKER McKENZIE LLP George M Clarke III D C Bar No 480073 Mireille R Oldak D C Bar No 1027998 Steven Chasin D C Bar No 495853 815 Connecticut Avenue N W Washington D C 20006 Phone 202 835-6184 Fax 202 416-7184 Email george clarke@bakermckenzie com Email mireille oldak@bakermckenzie com Email steven chasin@bakermckenzie com Dated May 7 2019 39