[Update] SHAFR-NSA-CREW file suit to compel the White House to create and preserve records of the President's meetings with foreign leaders

Wednesday, April 8, 2020 - 9:15am

April 2020 Update- ICE agrees, in a court-filed stipulation, not to destroy any records while the lawsuit is ongoing.

BREAKING: In our lawsuit to block ICE's destruction of records of abuse and mistreatment of detainees, we just secured a binding agreement that ICE will not destroy any records while the lawsuit is ongoing. This is a critical step to ensure the records are not permanently lost.

February 2020 Update- "Judge rejects lawsuit over Trump's lack of records of meetings with foreign leaders," The Hill

A judge on Monday rejected a lawsuit against President Trump over not keeping records of his meetings with foreign leaders. 

U.S. District Judge Amy Berman Jackson, an Obama appointee, ruled in a 22-page decision that past legal precedents say she cannot monitor the White House’s enforcement of laws on how executive branch records are kept. 

Because the lawsuit concerns how the White House acted, instead of the legality of the policies on keeping records, she said she did not have the power to ensure the White House followed those policies. 

"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 in this case," Jackson wrote.  "

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 [of the President] is in compliance with its obligations," she wrote. 

Citizens for Responsibility and Ethics in Washington (CREW), the National Security Archive and the Society for Historians of American Foreign Relations (SHAFR) sued the administration after reports found that the White House allegedly was not keeping up with record obligations.

"We're obviously disappointed to see today's ruling," CREW spokesman Jordan Libowitz said in a statement obtained by The Hill. "Our legal team is currently reviewing it to determine any potential future action." 

Lauren Harper, a spokesperson for the National Security Archive, told The Hill that an appeal to the D.C. Circuit court is planned. 

"The big takeaways for us on this case are that Judge Jackson effectively calls on Congress to revisit the records laws and the unfettered control of the Executive," she said in a statement. 

SHAFR President Kristin Hoganson said the current laws assume the president will act in good faith to keep records of meetings with foreign officials, adding that the country needs "stronger legislation" for presidents who may "purposefully seek to evade the law."

October 2019 Update- "Justice Dept. assures judge White House won’t destroy records of Trump calls, meetings with foreign leaders," The Washington Post

Justice Department attorneys promised a federal judge Wednesday that the White House will not destroy records of President Trump’s calls and meetings with foreign leaders while the court weighs a lawsuit brought by historians and watchdog groups.

In a two-page filing, Justice Department lawyer Kathryn L. Wyer told a judge in Washington that the Trump administration and executive office of the president “voluntarily agree . . . to preserve the material at issue pending” litigation.

The filing came after U.S. District Judge Amy Berman Jackson of Washington on Tuesday set a 3 p.m. deadline for the government after the suing groups requested a temporary restraining order in a lawsuit filed in May to compel the administration to comply with the federal Presidential Records Act.

Three organizations — government watchdog groups Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive, and the Society for Historians of American Foreign Relations (SHAFR) — alleged that the White House was failing to create and save records as required of Trump’s meetings and communications with foreign leaders.

September 2019 Update- Defendants' Memorandum Of Points And Authorities In Support Of Defendants' Motion To Dismiss (filed 08/09/19)

SHAFR has joined the National Security Archive (NSA) and the Citizens for Responsibility and Ethics in Washington (CREW) in filing suit to compel the White House to create and preserve records of the President's meetings with foreign leaders.

News organizations have reported that in multiple meetings with foreign heads of state, the Trump administration has excluded note takers from the conversations.  For example, The New York Times on January 15, 2019 headlined "Trump and Putin Have Met Five Times, What Was Said Is a Mystery."  The Associated Press reported on February 27, 2019, "Trump-Kim go one-on-one: Who will know what was really said?"

The lawsuit filed today asks the federal district court for mandamus and declaratory relief to compel the White House to create and preserve records of presidential meetings with foreign leaders, as required by the Presidential Records Act.

The National Security Archive has obtained through the Freedom of Information Act and published thousands of "memoranda of conversation" of heads of state meetings dating back to President Eisenhower and forward to President Clinton's 1999 telephone call with Russian President Boris Yeltsin in which Yeltsin announced his successor would be Vladimir Putin.

SHAFR president Professor Barbara Keys remarked, "Keeping records of top-level meetings has been part of common-sense diplomatic practice for centuries. Failing to make or keep records damages not only the capacity of history to render judgment in the future, but also of government to pursue the country’s interests in the present.  It also undermines the principle of government accountability that is the very bedrock of democracy."

Archive director Tom Blanton commented, "The Archive went to court to preserve presidential records when President Reagan tried to junk his email backup tapes in 1989. We have sued every president since, Democratic and Republican, to make sure the White House obeyed the records laws.  Today, the problem goes beyond improperly shredding records, to the deliberate failure to create the records in the first place."

CREW executive director Noah Bookbinder said, "It is clear that President Trump and White House officials have gone to great lengths to hold high-level meetings with foreign governments and carry out foreign policy objectives while blatantly ignoring recordkeeping laws and preventing national security officials and the American people from understanding what they are doing.”

The legal team representing the plaintiffs in the case is led by Anne Weismann of CREW, together with Conor Shaw of CREW, and pro bono counsel George Clarke, Mireille Oldak, and Steven Chasin of Baker McKenzie.

Further details at the NSA site including the full complaint filed.