Case 1 20-cv-03500-KBJ Document 19 Filed 02 11 21 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________________ NATIONAL SECURITY ARCHIVE et al Plaintiffs v DONALD J TRUMP et al Defendants ______________________________________ Civil Action No 20-3500-KBJ PLAINTIFFS’ NOTICE REGARDING STATUS OF THIS CASE By Minute Order dated January 28 2021 the Court ordered Plaintiffs to file a notice informing the Court in light of the recent change in administration of which counts in the complaint if any have become moot Plaintiffs hereby respond to the Court’s Order Counts I and II of Plaintiffs’ Complaint challenge as contrary to the Presidential Records Act PRA the failure of Defendants Donald Trump and the Executive Office of the President EOP to obtain the Archivist’s written views and to transmit a disposal schedule to Congress prior to disposing of Presidential records Because Donald Trump no longer is president and his Presidential records are now under the legal custody and control of the National Archives and Records Administration NARA Counts I and II are now moot Counts III and IV of the Complaint challenge as contrary to the PRA the screenshotting policy then in effect that authorized White House staff as a means of satisfying their PRA obligations to “screenshot” Presidential records created or sent from certain non-official electronic messaging accounts and to forward those screenshots to an official account Counsel for Defendants has confirmed to Plaintiffs in writing that the Biden Case 1 20-cv-03500-KBJ Document 19 Filed 02 11 21 Page 2 of 4 White House has rescinded this policy and after consultation with NARA replaced it with a policy that provides that non-EOP instant messaging applications should not be used to conduct official business The new policy further provides that if extenuating circumstances ever require use of such applications then messages must be exported electronically and sent to an EOP account Under the new policy electronic export means utilizing the particular application’s functionality allowing electronic export which includes the export of the metadata that functionality permits The guidance’s requirement to capture all Presidential records includes attachments that are themselves Presidential records Further if the electronic records cannot be exported electronically the guidance requires the employee to contact the White House Counsel’s office to ensure appropriate preservation Under this new policy only if no other means are available can screenshots be taken and emailed to an EOP mail account but even in that circumstance the guidance requires that metadata such as the time and date of the message be captured or added if not apparent In light of these representations Counts III and IV are now moot Counts V and VI challenge as contrary to the PRA the failure of Defendant Jared Kushner to preserve in an official White House account complete copies of all Presidential records he created or sent from his non-official electronic messaging accounts Defendants’ counsel has informed Plaintiffs in writing that representatives of the Trump Administration informed NARA that the Trump White House officials who used WhatsApp including Jared Kushner were successfully able to download and export electronic copies of their records and forward them to their official accounts prior to the end of the administration Accordingly Defendants’ counsel advised NARA now has legal custody of those 2 Case 1 20-cv-03500-KBJ Document 19 Filed 02 11 21 Page 3 of 4 Presidential records In light of these representations Plaintiffs no longer wish to pursue Counts V and VI and consent to dismissal of those claims without prejudice Finally Count VII challenges the failure of NARA and the Archivist to take action prior to the conclusion of former President Trump’s term of office to ensure the preservation of complete copies of all Presidential records created or sent from non-official electronic messaging accounts during President Trump’s term of office President Trump’s term has now ended and NARA has represented to Plaintiffs that it has legal custody and control of President Trump’s Presidential records and further that it has not yet been able to assess the completeness of those records Defendants’ counsel has specifically represented that the Trump White House officials who used WhatsApp including Jared Kushner were successfully able to download and export electronic copies of their records and forward them to their official accounts prior to the end of the administration In light of these representations Plaintiffs no longer wish to pursue Count VII and consent to dismissal of that claim without prejudice reserving the right to revisit this issue at a later time For all of these reasons Plaintiffs have filed this day a notice of voluntary dismissal without prejudice Dated February 11 2021 Respectfully submitted s Anne L Weismann Anne L Weismann D C Bar No 298190 6117 Durbin Road Bethesda MD 20817 Telephone 301 717-6610 weismann anne@gmail com s Nikhel S Sus Nikhel S Sus D C Bar No 1017937 CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 3 Case 1 20-cv-03500-KBJ Document 19 Filed 02 11 21 Page 4 of 4 1101 K St N W Suite 201 Washington DC 20005 Telephone 202 408-5565 Fax 202 588-5020 nsus@citizensforethics org Counsel for Plaintiffs 4