Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 1 of 22 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al Plaintiffs v DONALD J TRUMP et al Defendants ____________________________________ Civil Action No 19-1333 ABJ MEMORANDUM OPINION Three organizations Citizens for Responsibility and Ethics in Washington “CREW” the National Security Archive “NSA” and the Society for Historians of American Foreign Relations “SHAFR” have brought this lawsuit against President Donald J Trump in his official capacity and the Executive Office of the President “EOP” The complaint alleges that the defendants violated the Presidential Records Act “PRA” the Federal Records Act “FRA” and the Take Care Clause of the Constitution when the President and his staffers failed to create maintain and properly dispose of records of interactions with foreign leaders Compl Dkt # 1 at 1–2 Plaintiffs seek relief in the form of a writ of mandamus and an injunction compelling defendants to comply with their duties under the PRA as well as a declaration that defendants’ actions have been in violation of the PRA FRA and the Take Care Clause Id at 37–38 On August 9 2019 defendants moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim Since the Court is bound by Circuit precedent to find that it lacks authority to oversee the President’s day-to-day compliance with the statutory provisions involved Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 2 of 22 in this case the motion to dismiss will be granted Thus this opinion will not address and should not be interpreted to endorse the challenged practices nor does it include any finding that the Executive Office is in compliance with its obligations BACKGROUND I Statutory Framework The creation maintenance and disposal of records created by the federal government are controlled by two key statutes The Presidential Records Act “PRA” and the Federal Records Act “FRA” The PRA governs the management of “presidential records ” 44 U S C § 2201 et seq see Armstrong v Bush “Armstrong I” 924 F 2d 282 285–86 D C Cir 1991 The statute defines “presidential records” as D ocumentary 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 § 2201 2 The Act expressly excludes two sets of materials from the definition of Presidential records any materials that qualify as “official records of an agency as defined in the Freedom of Information Act 5 U S C § 552 f 1 ” § 2201 2 B and “personal records ” that is materials “of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional statutory or other official or ceremonial duties of the President ” §§ 2201 2 B 3 1 Although section 2201 2 B of the PRA refers to subsection e of the Freedom of Information Act that subsection has been recodified at 5 U S C § 552 f 2 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 3 of 22 With respect to the records that are covered the Presidential Records Act provides T he 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 § 2203 a During a President’s term “the President may dispose of those Presidential records of such President that no longer have administrative historical informational or evidentiary value ” § 2203 c Prior to doing so though the President must obtain the views of the Archivist of the United States concerning the records the President proposes to destroy § 2203 c 1 The Archivist may and in some situations shall notify Congress of the intended destruction and the President must wait at least sixty days after such notification to destroy the records §§ 2203 d e But “ t he 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 PRA permits the Archivist to maintain and preserve Presidential records on behalf of the President but the statute states that “ t he President shall remain exclusively responsible for custody control and access” to those records 44 U S C § 2203 f Upon the conclusion of the President’s term the Archivist assumes responsibility of the Presidential Records § 2203 g 1 The Federal Records Act by contrast governs the management of agency records 44 U S C § 2101 et seq Armstrong I 924 F 2d at 284 The FRA defines “records” as materials “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 ” § 3301 a 1 A 3 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 4 of 22 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 procedures and essential transactions of the agency ” § 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 ” §§ 3102 3105 Agency records may not be destroyed except as outlined in the FRA § 3314 II Procedural Background Plaintiffs filed their complaint on May 7 2019 alleging that the President and the Executive Office of the President have violated the PRA and the FRA by failing to create preserve and properly dispose of records of meetings and discussions with foreign leaders See Compl at 1–2 The complaint seeks the following relief • Claim One a writ of mandamus “ordering the President his staff and the EOP to comply with their mandatory non-discretionary duties under the PRA” • Claim Two “a declaratory judgment that President Trump his staff and the EOP have violated their non-discretionary statutory duties under the PRA ” through “a policy and practice of repeatedly failing and or affirmatively refusing to create records of their meetings and conversations with foreign leaders” • Claim Three “a declaratory judgment that the Defendants’ directives that the Department of State not create or maintain records of the P resident’s bilateral meetings with certain foreign heads of state and the President’s assertion of unilateral and exclusive control over the contents of meetings with foreign leaders violate the PRA and the FRA” • Claim Four a declaratory judgment that the defendants violated the PRA by failing to obtain the Archivist’s written views and to transmit a disposal schedule to Congress prior to disposing of a Presidential record and • Claim Five a declaratory judgment that the President’s failure to comply with the PRA and his interference with the State Department’s 4 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 5 of 22 compliance with the FRA are contrary to law and a violation of his constitutional obligation to take care that the law be faithfully executed as well as an injunction ordering compliance with those obligations in the future Compl ¶¶ 72–106 On August 9 2019 defendants moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12 b 1 and for failure to state a claim upon which relief can be granted under Rule 12 b 6 They argue that the PRA precludes judicial review of the President’s recordkeeping practices and decisions that Count One fails to point to the clear duty to act that is necessary for mandamus jurisdiction that the requests for declaratory relief also fail in the absence of a judicially remediable right and that plaintiffs are not entitled to relief under the Take Care Clause of the Constitution Defs ’ Mot to Dismiss Dkt # 11 “Defs ’ Mot ” at 11–29 On September 13 2019 plaintiffs opposed the motion Pls ’ Opp to Defs ’ Mot Dkt # 14 “Pls ’ Opp ” 2 Defendants replied on October 17 2019 Defs ’ Reply in Support of Defs ’ Mot Dkt # 20 Both parties filed supplemental briefs on December 5 2019 Defs ’ Suppl Br Dkt # 21 “Defs ’ Suppl Br ” Pls ’ Suppl Br Dkt # 22 “Pls ’ Suppl Br ” STANDARD OF REVIEW In evaluating a motion to dismiss under Rule 12 b 1 the Court must “treat the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged ’” Sparrow v United Air Lines Inc 216 F 3d 1111 1113 2 A few weeks after defendants filed their motion to dismiss plaintiffs filed a motion for a temporary restraining order asking the Court to order defendants to preserve certain categories of documents pending the litigation Pls ’ Mot for Temporary Restraining Order Dkt # 15 On October 2 2019 defendants filed a notice with the Court representing that they would preserve those documents Defs ’ Notice Dkt # 19 The Court then denied the motion for temporary restraining order as moot and ordered defendants to preserve the categories of documents identified by plaintiffs Min Order Oct 3 2019 5 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 6 of 22 D C Cir 2000 internal citation omitted quoting Schuler v United States 617 F 2d 605 608 D C Cir 1979 see also Am Nat’l Ins Co v FDIC 642 F 3d 1137 1139 D C Cir 2011 quoting Thomas v Principi 394 F 3d 970 972 D C Cir 2005 Nevertheless the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint nor must the Court accept plaintiff’s legal conclusions Browning v Clinton 292 F 3d 235 242 D C Cir 2002 Under Rule 12 b 1 the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence See Lujan v Defs of Wildlife 504 U S 555 561 1992 Shekoyan v Sibley Int’l Corp 217 F Supp 2d 59 63 D D C 2002 Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction ” Kokkonen v Guardian Life Ins Co of Am 511 U S 375 377 1994 see also Gen Motors Corp v EPA 363 F 3d 442 448 D C Cir 2004 “As a court of limited jurisdiction we begin and end with an examination of our jurisdiction ” “ B ecause subject-matter jurisdiction is ‘an Art icle III as well as a statutory requirement no action of the parties can confer subjectmatter jurisdiction upon a federal court ’” Akinseye v District of Columbia 339 F 3d 970 971 D C Cir 2003 quoting Ins Corp of Ir Ltd v Compagnie des Bauxites de Guinee 456 U S 694 702 1982 When considering a motion to dismiss for lack of jurisdiction unlike when deciding a motion to dismiss under Rule 12 b 6 the court “is not limited to the allegations of the complaint ” Hohri v United States 782 F 2d 227 241 D C Cir 1986 vacated on other grounds 482 U S 64 1987 Rather “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction to hear the case ” Scolaro v D C Bd of Elections Ethics 104 F Supp 2d 18 22 D D C 2000 citing Herbert 6 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 7 of 22 v Nat’l Acad of Scis 974 F 2d 192 197 D C Cir 1992 see also Jerome Stevens Pharms Inc v FDA 402 F 3d 1249 1253 D C Cir 2005 ANALYSIS I The complaint will be dismissed for lack of jurisdiction The defendants have moved to dismiss the entire complaint based on the holding in Armstrong v Bush “Armstrong I” 924 F 2d 282 291 D C Cir 1991 that “the PRA precludes judicial review of the President’s recordkeeping practices and decisions ” While ordinarily there is a presumption favoring judicial review of executive action under a statute that presumption may be overcome by an express prohibition in the legislation or if a court finds based on an analysis of the statute’s structure objectives legislative history and the nature of the administrative action involved that such a bar was implied Id at 290 Considering those factors the D C Circuit held in 1991 that the Presidential Records Act is “one of the rare statutes that impliedly precludes judicial review ” Id The Armstrong I opinion reviews the legislative history of the PRA and reports that the purpose of the statute was to ensure that presidential records would be preserved so that the public could have access to them after the President left office Id At the same time the Court observed 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 And the Court concluded that the absence of any language creating a private right of action was consistent with that aim Id The opinion reasoned that “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 ” Id 7 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 8 of 22 Since the “PRA accords the President virtually complete control over his records during his term of office ” id and it grants neither the Archivist nor Congress any authority to interfere with the executive’s recordkeeping activities the Armstrong I Court found that Congress did not intend 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 3 As plaintiffs point out though the D C Circuit carved out an exception to the holding in Armstrong I when it announced in a subsequent opinion 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 ” Armstrong v Exec Office of the President “Armstrong II” 1 F 3d 1274 1290 D C Cir 1993 Compl at 30 In Armstrong II the Court reversed a district court decision “declining to review the EOP guidelines defining Presidential records ” and it ruled that a court may do so “for the limited purpose” of ensuring that the rules did not encompass materials that would otherwise be subject to the Freedom of Information Act Armstrong II 1 F 3d at 1290 The Court cautioned that “ t he 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 ” Id In reaching this decision the Court confirmed its clear holding in Armstrong I that “ t he PRA delineates those records over which the President may exercise ‘virtually complete control’ and the courts may not restrict that control by reviewing the President’s recordkeeping practices and decisions ” Id But it explained that the bar on judicial review 3 The Court chose not to second-guess the judgment made by the legislature id at 291 when it “presumably relied on the fact that subsequent Presidents would honor their statutory obligations to keep a complete record of their administrations ” Id at 290 8 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 9 of 22 shields only the “creation management and disposal decisions” of the President and not “the initial classification of existing materials ” Id at 1294 The D C Circuit has continued to adhere to this distinction In Citizens for Responsibility Ethics in Wash v Trump “CREW v Trump” the Court again differentiated the review of Presidential guidelines governing the implementation of PRA – in particular the classification of records as “presidential” – from the review of executive practices or actions that may have contravened either the PRA or those guidelines 924 F 3d 602 D C Cir 2019 4 In that case plaintiffs CREW and the National Security Archive complained that White House personnel were reportedly communicating through a messaging application that automatically deleted messages as soon as they are read Id at 603 They alleged that the use of the application violated the PRA because it effectively exempted an entire class of records from the statutory regime Id at 609 The lawsuit sought a declaratory judgment that use the application and similar applications violated the PRA and a writ of mandamus compelling the President and the Executive Office to adopt procedures and guidelines that comported with the law Id at 603 610 But the D C Circuit found that it did not have the power to get involved Id The Court ruled that under Armstrong I and Armstrong II it lacked jurisdiction to order the executive to take corrective action and therefore the plaintiff could not show the clear and indisputable right to relief that is the prerequisite for a writ of mandamus Id at 608–10 The Court also took judicial notice of a 2017 White House Memorandum that reminded all personnel of their obligations under the PRA Id at 607–08 The Court held that the Memorandum itself was consistent with the PRA and that it could not police whether the White House was 4 See also id at 609 quoting Armstrong II 1 F 3d at 1294 reiterating that a court could review “whether the Executive’s definition of ‘presidential records’ subverts FOIA by labeling as ‘presidential’ those federal records that are otherwise subject to immediate public release” and “guidelines outlining what is and what is not a ‘presidential record’” 9 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 10 of 22 complying with its own policy id at 608 determining whether White House personnel were “in fact complying with the directive to conduct all work-related communication on official email would require just the kind of micromanaging proscribed by Armstrong I ” Id at 609 CREW v Trump did reiterate that the courts have “authority to ‘review guidelines outlining what is and what is not a ‘presidential record ’” Id quoting Armstrong II 1 F 3d at 1294 But the opinion makes clear that when applying the Armstrong precedents a district judge must steer clear of efforts to supervise day-to-day operations within the White House id even when a complaint presents legitimate concerns about an ongoing practice that threatens the preservation of and public access to presidential records Citing those principles defendants have moved to dismiss all of plaintiffs’ claims for lack of jurisdiction Defs ’ Mot at 11–19 A review of the allegations in the complaint reveals that in each claim plaintiffs are indeed questioning the President’s “record management practices” and his “creation management and disposal decisions ” and therefore Armstrong I requires that the motion to dismiss be granted 5 In their complaint plaintiffs emphasize the particular importance of the creation and retention of records of the Chief Executive’s meetings with foreign leaders see e g Compl ¶¶ 6 39 53 and they point to a number of news accounts that give rise to concerns that those records are not being generated or are being destroyed See id ¶ 7 They also allege that these “recordkeeping failures apparently extend to other White House officials ” Id ¶ 8 In particular plaintiffs allege 5 Plaintiffs argue that Armstrong I to the extent it supports defendants’ motion was wrongly decided because it conflicts with the Supreme Court’s decisions in Nixon v Adm’r of Gen Servs 433 U S 425 1977 and Youngstown Sheet Tube Co v Sawyer 343 U S 579 1952 and it relied on a flawed analysis of the Congressional intent underlying the PRA See Pls ’ Opp at 39–45 But this Court is bound by Circuit precedent unless and until the Court of Appeals revises its decision or the decision is overruled 10 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 11 of 22 • “In May 2017 notable discrepancies appeared between the official readout of the President’s meeting with Russian diplomats and reports that emerged later ” Compl ¶ 40 • “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 administration officials The interpreter for that summit was an employee or contractor of the State Department ” Compl ¶ 42 • “During a dinner that followed President Trump had a conversation with President Putin without any accompanying American witnesses ” Compl ¶ 45 6 • “Presidents Trump and Putin also chatted informally a number of times during the November 2017 Asia-Pacific Economic Cooperation Summit in Da Nang Vietnam ” but “reportedly no official transcript or notes of their ‘sidelines’ meetings in Vietnam exist ” Compl ¶ 48 • “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 Reportedly President Trump’s interpreter left the meeting ‘with pages of notes ’ but there is no indication those notes have been shared with anyone ” Compl ¶¶ 49–51 citation omitted • “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 ” Compl ¶ 52 • “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 6 The complaint also alleges that after these meetings President Trump purported to summarize the meetings in several tweets but that “Russian officials provided an ‘alternative account ’” Compl ¶¶ 46–47 citation omitted 11 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 12 of 22 U S policymakers in the dark about what transpired and leaving no historical record ” Compl ¶ 57 • Senior White House Advisor Jared Kushner met in Saudi Arabia with Crown Prince Mohammed bin Salman and King Salman and “ r eportedly U S embassy staff in Riyadh ‘were not read in on the details of his trip … or the meetings he held with members of the country’s Royal Court ’” Compl ¶ 60 citation omitted • “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 ’” Compl ¶ 68 internal quotation marks and citation omitted • “Further Jared Kushner reportedly uses 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 ” Compl ¶ 69 Plaintiffs also assert that “ t his 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 meeting with foreign leaders deviates sharply from the protocols and practices of prior administrations ” Compl ¶ 62 see id ¶¶ 63–67 All of the claims incorporate these facts and on that basis Claim One seeks a writ of mandamus compelling compliance with the PRA Compl ¶¶ 72 78 It alleges that President Trump personally and through his staff has violated his statutory 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 policies 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 12 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 13 of 22 Compl ¶ 76 Claim Two similarly alleges that the President 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 non-discretionary legal obligations to create records ” id ¶ 81 and it seeks declaratory and injunctive relief The language used in both claims and the nature of the factual allegations they incorporate make it plain that plaintiffs are challenging this administration’s recordkeeping practices – its operational decisions concerning the creation and maintenance of records The gravamen of these claims is that there appears to be a deliberate ongoing effort to avoid the recordkeeping contemplated by Congress – at least with respect to a critical subset of foreign relations activities 7 But plaintiffs’ mere invocation of the word “policy” is not enough to relieve the parties of the jurisdictional bar recognized in Armstrong I or to bring these claims within the ambit of the narrow and specific Armstrong II exception Adding a conclusory allegation that these practices in effect “improperly classify agency records as presidential records” does not change the outcome either if the Court of Appeals rejected CREW’s attempt to cast the intentional regular use of an application that ensured the deletion of an entire set of communications between aides as a reviewable “classification” decision covered by Armstrong II CREW v Trump 924 F 3d at 609 then this Court is constrained by that precedent to reject a 7 In their opposition to the motion plaintiffs describe their claims as a challenge to a presidential “policy and practice” of disposing of documents and refusing to create documents that would fall under the Armstrong II exception Pls ’ Opp at 19–20 But the Armstrong II holding is not sufficiently broad to permit judicial review of all presidential recordkeeping practices even if they are alleged to be repeated or ongoing Rather Armstrong II was narrowly confined to the review of policies and guidelines issued by the administration governing the initial classification of documents as presidential records subject to the PRA and the President’s control 13 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 14 of 22 similar attempt here 8 Plaintiffs allege that Congress itself has expressed grave concerns about the practices at issue see Compl ¶ 58 but it is Congress that has the power to revisit its decision to accord the executive such unfettered control or to clarify its intentions if they were mischaracterized by the Court of Appeals Claim Three asserts that “ t he 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 ” Compl ¶ 86 It maintains that “the President’s assertion of unilateral and exclusive control over the contents of meetings with foreign leaders” – as opposed to the records of those meetings – violates the PRA and the FRA Id ¶ 87 The claim alleges upon information and belief that individuals who provide interpretation or translation services at the President’s bilateral meetings with heads of state are State Department employees Id ¶ 89 It asserts that State Department officials are not only bound to preserve agency records but that they “are charged with creating and transmitting records of the meetings and conversations the President and his staff have with foreign heads of state ” Id ¶ 90 “Accordingly ” plaintiffs reason “the records that those State Department employees create while providing interpretation or translation services to President Trump and those records they create memorializing the 8 It is also important to note that the writ of mandamus sought in Claim One is a “drastic” remedy “to be invoked only in extraordinary situations ” Allied Chem Corp v Daiflon Inc 449 U S 33 34 1980 To support a mandamus petition “a plaintiff must demonstrate 1 a ‘clear and indisputable right to relief ’ 2 that the government official has a ‘clear duty to act ’ and 3 that ‘no adequate alternative remedy exists ’” CREW v Trump 924 F 3d at 606 quoting American Hosp Ass’n v Burwell 812 F 3d 183 189 D C Cir 2016 In CREW v Trump the Court of Appeals found that in light of the statutory bar on judicial review announced in Armstrong I the plaintiff had no “clear and indisputable right to mandamus relief ” 924 F 2d at 609–10 The Court then dispensed with the claims for equitable relief in a single sentence “ f or the same reasons that we decline to ‘resort to mandamus’ to micromanage the President’s day-to-day compliance with the PRA we shall ‘not entertain a claim for declaratory relief ’” Id at 610 quoting Cartier v Sec’y of State 506 F 2d 191 200 D C Cir 1974 This indicates that Claims One and Two fall together and it poses problems for Claims Three through Five as well 14 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 15 of 22 President’s meetings and conversations are agency records for the purposes of the FRA ” Id ¶ 91 Claim Three seeks a declaration that the President and the EOP violated both the PRA and the FRA At first blush it would appear that Claim Three comes closer to articulating a claim that survives Armstrong I but a careful reading reveals that what differentiates the claim from the others is merely the addition of a number of legal or summary assertions in the end Claim Three is based on the same set of facts and the conclusions a party advances based on those facts cannot supply the missing basis for a claim There is no factual allegation in the complaint that anyone in the White House has actually “classified” a record of a meeting with a foreign leader as a presidential record much less that there is a general classification guideline or policy concerning records of meetings with heads of state in place for the Court to review 9 Like Claims One and Two this count directs the Court’s attention to instances of the President’s operations under and implementation of 9 The heading of Claim Three makes it clear that the reclassified “records created by employees of the Department of State” to which it pertains see Compl ¶ 86 are interpreter notes “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 ” Compl at 33 Plaintiffs suggest in their opposition that when he confiscated an interpreter’s notes on one occasion the President promulgated a “policy” which improperly reclassified a State Department record as a presidential record subject to his control See Pls ’ Opp at 28 They argue that “presidential recordkeeping policies of the White House are what the President – who is at the top of the decision-making chain and expressly charged by statute to implement the PRA – says they are ” Id at 19 The Armstrong II exception does permit a court to “review guidelines outlining what is and what is not a ‘presidential record’ under the terms of the PRA ” 1 F 3d at 1290 emphasis added and the D C Circuit acknowledged that such a guideline may be oral and not reduced to writing Id But the complaint does not allege that the President has made any pronouncements on this issue or that he has directed that other notes be seized or that they be treated as records under the PRA Standing alone plaintiffs’ conclusory allegation that a policy exists is not enough to overcome a motion to dismiss See Ashcroft v Iqbal 556 U S 662 678 2009 15 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 16 of 22 “the entire federal recordkeeping regime ” Compl ¶ 92 It focuses in particular on the creation of records and plaintiffs cannot point to factual allegations that satisfy their obligation to establish the existence of subject matter jurisdiction Claim Four like Claim Three addresses interpreters’ notes and it alleges that “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 ” Compl ¶ 97 This count – based on the single incident described in the complaint concerning an interpreter’s notes id ¶ 42 10 – cannot be viewed as anything other than a challenge to the President’s day-to-day management of his records under the PRA Claim Five is brought against the President alone It is nominally predicated on the Take Care Clause of the Constitution but it specifically alleges that “ t he failure of President Trump his staff and the EOP to create and maintain records contravenes Congress’ core purposes in enacting the PRA ” Compl ¶ 100 It alleges that the President violated his duty to take care that laws be faithfully executed “by directing or causing violations of the PRA and FRA ” Id ¶ 102 The claim seeks a declaratory judgment that his failure to “create and preserve records” in accordance with these statutes has been unlawful as well as an injunction compelling him to comply with those particular laws in the future Id ¶¶ 105–06 In other words Claim Five simply repeats the statutory violations alleged in Claims One through Four but it repackages them as a constitutional claim in an apparent effort to avoid the 10 Indeed in the article cited in the complaint the reporter acknowledged that he had no information that would indicate on whether the President had taken similar actions on other occasions See id citing Greg Miller Trump has concealed details of his face-to-face encounters with Putin from senior officials in administration Wash Post Jan 13 2019 8 30 AM https www washingtonpost com world national-security trump-has-concealed-details-ofhis-face-to-face-encounters-with-putin-from-senior-officials-inadministration 2019 01 12 65f6686c-1434-11e9-b6ad-9cfd62dbb0a8_story html 16 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 17 of 22 strictures of Armstrong I But “clever drafting of a complaint” or “artful pleading” is not a means to circumvent the preclusion of judicial review See Steadman v Governor U S Soldiers’ Airmen’s Home 918 F 2d 963 967–68 D C Cir 1990 finding that the plaintiffs could not bypass the administrative exhaustion requirements of the Civil Service Reform Act of 1978 “CSRA” by merely recasting prohibited personnel actions that fall under CSRA as constitutional violations 11 In sum the complaint as a whole asks the Court to do precisely what it is precluded from doing to review the “day-to-day operations” of the White House concerning presidential records including “the adequacy of the President’s records management practices or his records creation management and disposal decisions ” Armstrong I 924 F 2d at 290 see also Armstrong II 1 F 3d at 1294 “ C ourts may not review any decisions regarding whether to create a documentary presidential record the day-to-day process by which presidential records are maintained or the dispos al of presidential records ” emphasis in original Therefore the complaint will be dismissed II In the absence of a clear statutory mandate plaintiffs have not satisfied the requirements for mandamus jurisdiction and the Court is not empowered to issue declaratory or injunctive relief To the extent that any claims touch upon practices or decisions that arguably fall outside of the boundaries of the Armstrong I decision there is another fundamental flaw with plaintiffs’ request that the Court enjoin the President to perform his legal obligations the law is clear that the Court cannot order the President to perform discretionary duties 11 Defendants argue that Claim Five should be dismissed under Federal Rules of Civil Procedure 12 b 6 and 12 b 1 because “no court has ever held that the Take Care Clause can be used as a mechanism to obtain affirmative relief against the Executive ” Defs ’ Mot at 27 The Court need not address the scope of the Take Care Clause since it finds that it does not have jurisdiction to review the President’s compliance with the PRA or to enjoin a sitting President to perform discretionary duties 17 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 18 of 22 While the question of whether the Court has the power to compel the President to perform a purely ministerial duty may remain unsettled see Franklin v Massachusetts 505 U S 788 802 1992 12 the law is clear that the Court cannot issue such relief to require performance of official duties that are not ministerial Id at 826 Scalia J concurring in part and concurring in the judgment “ N o court has authority to direct the President to take an official act ” see id at 802 citing Mississippi v Johnson 71 U S 4 Wall 475 499–501 1866 holding that the President’s duties under the Reconstruction Act were not purely ministerial and so the Court had “no jurisdiction of a bill to enjoin the President in the performance of his official duties” In Swan v Clinton 100 F 3d 973 977 D C Cir 1996 the D C Circuit cited the plurality opinion in Franklin and reiterated that a court does not have jurisdiction to enjoin the President in his discretionary duties It also observed that “similar considerations apply to a request for a declaratory judgment ” Id at 976 n 1 see also Newdow v Roberts 603 F 3d 1002 12 Prior to Franklin the D C Circuit concluded in two opinions that a court may issue a writ of mandamus compelling the President to perform ministerial duties But it did not do so in either case citing the “the utmost respect for the office of the Presidency and to avoid if at all possible direct involvement by the Courts in the President’s constitutional duty faithfully to execute the laws and any clash between the judicial and executive branches of the Government ” Nat’l Treasury Emps Union v Nixon “NTEU” 492 F 2d 587 616 D C Cir 1974 In that case the union challenged the President’s alleged refusal to abide by a statute requiring him to grant a pay adjustment or propose an alternative to Congress and the Court found that the duty at issue was a ministerial one that it had mandamus jurisdiction to enforce but declined to do so electing to issue a declaratory judgment that the President had a constitutional duty to effectuate the required pay raise See id Similarly in National Wildlife Federation v United States 626 F 2d 917 918 921–22 D C Cir 1980 plaintiffs alleged a violation of a statute requiring the President to make certain disclosures and to include explanations when transmitting a budget request to Congress The Court found that it could issue mandamus relief to perform a ministerial duty but it exercised its discretion not to grant either mandamus or declaratory relief against the President for doing so “would be improvident” for various reasons including potential standing issues Id at 926–28 In 1992 however the Supreme Court observed that whether the President could be subject to an injunction requiring performance of a purely ministerial duty was still an open question Franklin 505 U S at 802 18 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 19 of 22 1013 D C Cir 2010 stating in dicta that “courts do not have jurisdiction to enjoin” the President and “have never submitted the President to declaratory relief” 13 Understanding the principle that a ministerial duty must be involved plaintiffs characterize the statutory duties underlying this case as “mandatory” and “non-discretionary ” See Compl ¶¶ 74 76 80 95 105 The D C Circuit has explained that “ 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 100 F 3d at 977 citing Mississippi 71 U S 4 Wall at 498 “ A ministerial duty is one in respect to which nothing is left up to discretion ” “Generally speaking a duty is discretionary if it involves judgment planning or policy decisions It is not discretionary i e ministerial if it involves enforcement or administration of a mandatory duty at the operational level ” Beatty v Wash Metro Area Transit Auth 860 F 2d 1117 1127 D C Cir 1988 emphasis in original quoting Jackson v Kelly 557 F 2d 735 737 10th Cir 1977 A ministerial duty has been described as “simple ” “definite ” and as leaving “no room for the exercise of judgment ” NTEU 492 F 2d at 607–08 It must be “so plainly prescribed as to be free from doubt and equivalent to a positive command W here the duty is not thus plainly prescribed but depends on a statute or statutes the construction or application of which is not free from doubt it is regarded as involving the character of judgment or discretion ” Consol Edison Co of N Y v Ashcroft 286 F 3d 600 605 D C Cir 2002 Plaintiffs’ attempt to liken the statutory obligations here to a purely ministerial duty is inconsistent with the language of the provisions themselves and the decisions of this Circuit interpreting the PRA Section 2203 a of the PRA states 13 But see NTEU 492 F 2d at 616 finding that the case “presents a most appropriate instance for the use of a declaratory decree” 19 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 20 of 22 Through 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 The use of the word “shall” often denotes a mandatory obligation but what the President must do is exercise his discretion and the rest of the text calls for the exercise of considerable judgment The PRA directs the President to take steps “as may be necessary ” through “implementation of records management controls and other necessary actions ” to assure “adequate” documentation of Presidential activities Id This duty necessarily involves the application of judgment and the formation of policy Indeed the D C Circuit has observed that the PRA “accords the President virtually complete control over his records during his term of office ” Armstrong I 924 F 2d at 290 Armstrong II 1 F 3d at 1291 Any attempt to craft an injunction or declaratory judgment against the President or his staff based on the Federal Records Act would be even more problematical See Compl ¶¶ 87– 88 id ¶¶ 101–02 The FRA directs the head of each federal agency to “make and preserve records containing adequate and proper documentation of the organization functions policies decisions procedures and essential transactions of the agency ” that are “designed to furnish the information necessary to protect the legal and financial rights of the Government ” 44 U S C § 3101 The statute leaves open the question of what constitutes complete performance and it cannot be described as an assignment of “simple” and “definite” duties that are “free from doubt and equivalent to a positive command ” More important plaintiffs do not point to any language in the FRA that imposes a clear duty on the President or the Executive Office of the 20 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 21 of 22 President and the complaint does not allege that any of the defendants violated such a duty Claim Three alleges that the defendants’ conduct “denies agencies access to and control of information needed to comply with their obligations under the FRA ” Compl ¶ 92 emphasis added and Claim Five seeks to address Presidential “interference with the State Department’s compliance ” Id ¶ 105 emphasis added Since the duties set forth in these statutes are not purely ministerial obligations imposed on the defendants plaintiffs have not established the clear duty to act necessary to support the request for mandamus in Claim One CREW v Trump 924 F 3d at 606 and the Court does not have jurisdiction to issue the declaratory and injunctive relief that plaintiffs have requested in Claims Two through Five Therefore pursuant to Federal Rule of Civil Procedure 12 b 1 the Court will grant defendants’ motion to dismiss 14 14 Some courts have addressed the court’s authority to enjoin a President in the context of the standing analysis necessary to establish subject matter jurisdiction and defendants have also argued that the claims must be dismissed on those grounds See Defs ’ Suppl Br at 4–6 The elements of constitutional standing are “ t he plaintiff s must have 1 suffered an injury in fact 2 that is fairly traceable to the challenged conduct of the defendant s and 3 that is likely to be redressed by a favorable judicial decision ” Spokeo Inc v Robins 136 S Ct 1540 1547 2016 If the court lacks the power to award injunctive relief and compel the President to perform discretionary duties plaintiffs’ injuries are not redressable Franklin 505 U S at 802– 03 Swan 100 F 3d at 980–81 So even if plaintiffs have sufficiently alleged that they have suffered an injury caused by the challenged conduct of the defendants see Compl ¶¶ 101–04 their inability to establish the third element necessary for standing provides another basis to dismiss the case under Federal Rule of Civil Procedure 12 b 1 21 Case 1 19-cv-01333-ABJ Document 24 Filed 02 10 20 Page 22 of 22 A separate order will issue AMY BERMAN JACKSON United States District Judge DATE February 10 2020 22