CREW and the National Security Archive sued President Donald Trump and the Executive Office of the President under the Presidential Records Act, the Declaratory Judgment Act, and Article II, Section 3 of the Constitution, which imposes on the President a duty to “take care that the laws be faithfully executed.”
The suit challenges the actions of the President, his staff, and the Executive Office of the President (the “Defendants”) that knowingly prevent the proper preservation of records the Defendants generate or receive when carrying out the President’s constitutional, statutory, or other official duties. It also challenges the Defendants’ usurpation of agency duties and responsibilities by consolidating power in the White House.
As decisions generated by the White House, Executive Orders are cloaked in secrecy, preventing federal agencies from complying with their statutory duties under the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA.)
Critical checks and balances are built into our system of government, including those implemented through congressional and judicial oversight. The ability of those checks and balances to work depends on the availability of a record of President Trump’s actions. The Defendants’ compliance with their record-keeping responsibilities under the PRA and FRA could not be more important.
Yet, the evidence to date suggests that President Trump and others within the White House are either ignoring or outright flouting these responsibilities. White House staff have used and continue to use certain email messaging applications that destroy the contents of messages as soon as they are read, without regard to whether the messages are presidential records. Presidential statements made on Twitter sent from the President’s personal Twitter account, which are subject to federal record-keeping obligations, have been destroyed. There is at least one news report that, when the ongoing congressional and FBI investigations were disclosed, White House aides purged their phones of potentially compromising information. These practices violate the Presidential Records Act.
At the same time, the Defendants have centralized much of the governmental decision-making within the White House, which ensures decisions normally made or implemented by Executive Branch agencies evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.
These actions prevent federal agencies from complying with their statutory responsibilities and violate the constitutional requirements that the President take care that the law be faithfully executed.