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Judge dismisses records lawsuit

Historians: President’s calls, meetings should be preserved by Spencer S. Hsu The Washington Post | February 12, 2020 at 4:10 a.m. | Updated February 12, 2020 at 4:10 a.m.

WASHINGTON -- A federal judge Monday dismissed a lawsuit brought by historians and watchdog groups to compel the White House to preserve records of President Donald Trump's calls and meetings with foreign leaders, saying Congress would have to change presidential archiving laws to allow the courts to do so.

Federal courts have ruled that the Presidential Records Act is one of the rare statutes that judges cannot review, and that another law, the Federal Records Act, does not specify exactly how agency heads should preserve records, U.S. District Judge Amy Berman Jackson said in a 22-page opinion.

"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 of the U.S. Court of the Appeals for the District of Columbia Circuit.

However, the judge added, "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."

Jackson said that though those who brought the lawsuit allege Congress expressed "grave concerns" about the practices at issue, it is Congress that has the power to "revisit its decision to accord the executive such unfettered control or to clarify its intentions."

The lawsuit was filed in May by three organizations -- government watchdog group Citizens for Responsibility and Ethics in Washington, the National Security Archive at George Washington University, and the Society for Historians of American Foreign Relations. The groups alleged that the White House was failing to create and save records as required of Trump's meetings and communications with foreign leaders, including Russian President Vladimir Putin and North Korean leader Kim Jong Un.

The lawsuit preceded Congress's impeachment inquiry into the White House -- which ended in a Senate acquittal -- that was triggered by a July 25 phone call in which Trump asked his Ukrainian counterpart to investigate unsubstantiated corruption allegations against former vice president Joe Biden, a leading Democratic presidential candidate, and his son, Hunter Biden.

The groups suing had asked unsuccessfully for an emergency ruling, citing allegations that the episode exposed recordkeeping practices "specifically designed to conceal the president's abuse of his power," Citizens for Responsibility and Ethics in Washington said in a statement. The groups sought a court order to ensure that records are not destroyed, misfiled or never created.

In a statement, Citizens spokesman Jordan Libowitz said the watchdog was "disappointed to see today's ruling" but is considering an appeal.

Thomas Blanton, director of the National Security Archive at George Washington University said it would "certainly appeal."

The Justice Department had moved to dismiss the lawsuit, saying appeals courts have precluded courts from weighing in on presidents' compliance with the archiving law.

Without conceding their arguments for dismissal, department lawyers in October promised the court that the White House would not destroy records of Trump's calls and meetings with foreign leaders while the lawsuit was pending. Justice Department lawyers also said the government had "instructed relevant personnel to preserve the information" sought.

A Section on 02/12/2020

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