The Presidential Records Act requires the preservation of official White House records so that they can be archived and eventually accessed by the public. After a swarm of news stories discussing President Trump’s staffers relying on messaging applications like Signal—which automatically deletes messages once they are read—a nonprofit watchdog group sued Trump alleging that the use of such applications ran afoul of the PRA and the public’s right to White House records.
On Tuesday (May 28), in Citizens for Responsibility and Ethics in Washington v. Trump, a unanimous D.C. Circuit panel disagreed and said that courts cannot “micromanage” how the president complies with the PRA on a day-to-day basis.
CREW was seeking a writ of mandamus against the White House—meaning a court order commanding the White House to fulfill a non-discretionary duty. Here, the non-discretionary duty was compliance with the PRA, and CREW alleged that the White House was defying the statute, making mandamus appropriate. But mandamus is a high bar. And according to the opinion by Judge Tatel (joined by Judges Pillard and Edwards), CREW could not clear it in large part because the White House appeared to be at least trying to comply with the PRA based on a February 2017 internal memo from then-White House Counsel Don McGahn. The memo, made public through a Freedom of Information Act request, was written before CREW filed suit and basically reminds staffers of their PRA obligations and that they cannot use message-deleting applications for “work-related communications.”
In an ironic twist, the embattled McGahn saved the day for Trump. Tatel said that the memo, along with court precedent, meant CREW failed to even meet the threshold requirement of mandamus relief.
The court also reminded us that challenges to a president’s PRA management are nothing new. In 1991, the D.C. Circuit initially dismissed a challenge to President George H.W. Bush’s handling of records from the Reagan administration on largely similar grounds, but two years later, the court asserted its authority to review White House guidelines on what qualifies as a presidential record in the first place.
