MOTION To Dismiss Indictment, Based On The Presidential Records Act by Donald J. Trump

Case 9:23-cr-80101-AMC Document 327 Entered on FLSD Docket 02/22/2024 Page 1 of 17
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
UNITED STATES OF AMERICA, Case No. 23-80101-CR

CANNON/REINHART
vs.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
_____________________________________
PRESIDENT TRUMP’S MOTION TO DISMISS THE INDICTMENT

BASED ON THE PRESIDENTIAL RECORDS ACT
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
DISCUSSION ..................................................................................................................................1
I. The Superseding Indictment ............................................................................................... 1
II. Motions To Dismiss ............................................................................................................ 2
III. The Presidential Records Act.......................................................................................... 2
IV. Discussion ....................................................................................................................... 4
A. President Trump’s PRA Designations Are Not Reviewable .......................................... 4
B. The PRA’s Recovery Mechanism Is Exclusive And Does Not Permit Referrals Used
To Predicate Criminal Investigations.................................................................................... 10
CONCLUSION ..............................................................................................................................14
i
INTRODUCTION
President Donald J. Trump respectfully submits this motion to dismiss the Superseding
Indictment pursuant to the Presidential Records Act (“PRA”). First, the PRA conferred
unreviewable discretion on President Trump to designate the records at issue as personal. As such,
President Trump’s possession of those records was not “unauthorized” as alleged in Counts 1
through 32. Second, the PRA’s exclusive remedy for records collection efforts by NARA is civil
in nature and forecloses criminal investigations. 1 Therefore, as with Counts 1 through 32, the
remaining Counts charging President Trump in the Superseding Indictment fail to state a claim
under Rule 12(b)(3)(v) of the Federal Rules of Criminal Procedure. Accordingly, pursuant to the
PRA, the Superseding Indictment must be dismissed.
DISCUSSION
I. The Superseding Indictment
The Special Counsel’s Office concedes that the “genesis” of this case dates back to at least
“the tail end of the Trump Administration itself.” Compel Oppn. at 3. 2 The Office alleges in the
Superseding Indictment that President Trump “caused scores of boxes, many of which contained
classified documents, to be transported” to Mar-a-Lago. ECF No. 85 ¶ 4 (emphasis added). The
Superseding Indictment makes clear that this decision and the related transportation of records
occurred while President Trump was still in office. Id. ¶ 25 (alleging that President Trump caused
boxes of records to be packed and shipped “[i]n January 2021, as he was preparing to leave the
White House” (emphasis added)). President Trump departed the White House prior to “12:00 p.m.
1
President Trump reserves the right to supplement this motion and file any other motions based
on discovery provided as a result of the motions to compel. See ECF No. 314.
2
“Compel Mot.” refers to the Defendants’ motions to compel discovery. ECF No. 262. “Compel
Oppn.” refers to the Special Counsel’s Office’s response to the Defendants’ motion to compel
discovery. ECF No. 277.
-1-
on January 20, 2021,” and as such he is alleged to have made these decisions concerning the
documents at issue while he was the Commander-in-Chief. Id. ¶ 4.
II. Motions To Dismiss
“[A]n indictment may be dismissed where there is an infirmity of law in the prosecution.”
United States v. Stokes, 2023 WL 6462066, at *1 (S.D. Fla. Oct. 4, 2023) (cleaned up); see also
Fed. R. Crim. P. 12(b)(3)(B). “[A] district court may dismiss an indictment . . . when immunity,
double jeopardy, or jurisdictional issues are implicated.” United States v. Salman, 378 F.3d 1266,
1267 n.3 (11th Cir. 2004). “An indictment that requires speculation on a fundamental part of the
charge is insufficient.” United States v. Bobo, 344 F.3d 1076, 1084 (11th Cir. 2003).
III. The Presidential Records Act
“Beginning with George Washington, Presidents of the United States have, without notable
exception, treated their presidential papers as personal property.” Nixon v. United States, 978 F.2d
1269, 1277-78 (D.C. Cir. 1992). In 1974, Congress enacted the Presidential Recordings and
Materials Preservation Act of 1974, based on “concern that President Nixon might destroy records
related to the Watergate Investigation.” Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 298
n.3 (D.D.C. 2012). “The controversy over President Nixon’s records and whether the PRMPA
interfered with his right to privacy in his personal records led to the passage of the PRA in 1978.”
Id.
When passing the PRA, “Congress was also keenly aware of the separation of powers
concerns that were implicated by legislation regulating the conduct of the President’s daily
operations.” Armstrong v. Bush (“Armstrong I”), 924 F.2d 282, 290 (D.C. Cir. 1991). “Congress
therefore sought assiduously to minimize outside interference with the day-to-day operations of
the President and his closest advisors and to ensure executive branch control over presidential
-2-
records during the President’s term in office.” Id. Congress also “limited the scope of judicial
review and provided little oversight authority for the President and Vice President’s document
preservation decisions.” CREW v. Cheney, 593 F. Supp. 2d 194, 198 (D.D.C. 2009).
Under the PRA, “[d]uring a President’s term of office,” “[t]he President shall remain
exclusively responsible for custody, control, and access to . . . Presidential records.” 44 U.S.C.
§ 2203(f); see also 44 U.S.C. § 2201(a) (defining “Presidential records”). “The use of the word
‘shall’ often denotes a mandatory obligation, but what the President must do is exercise his
discretion, and the rest of the text calls for the exercise of considerable judgment.” CREW v.
Trump, 438 F. Supp. 3d 54, 68 (D.D.C. 2020) (discussing 44 U.S.C. § 2203(a)). This includes
sole discretion to “categorize[]” materials as “Presidential records or personal records.” 44 U.S.C.
§ 2203(b); Armstrong I, 924 F.2d at 290 (reasoning that the PRA “accords the President virtually
complete control over his records during his term of office”).
“[T]he PRA does not confer any mandatory or even discretionary authority on the Archivist
to classify records” as Presidential Records or Personal Records. Judicial Watch, 845 F. Supp. 2d
at 301. The responsibility is left solely to the President. “Upon the conclusion of a President’s
term of office,” the Archivist “shall assume responsibility for the custody, control, and
preservation of, and access to, the Presidential records of that President.” 44 U.S.C. § 2203(g)(1)
(emphasis added). NARA’s “responsibility” under § 2203(g)(1) applies only to “records that were
designated as Presidential records during the President’s term.” Judicial Watch, 845 F. Supp. 2d
at 300 (emphasis in original). Thus, the PRA “assigns the Archivist no role with respect to personal
records once the Presidency concludes.” Id. at 291.
“[C]ourts may review guidelines outlining what is, and what is not, a ‘presidential record’
to ensure that materials that are not subject to the PRA are not treated as presidential records.”
-3-
Armstrong v. Exec. Off. of the President, Off. of Admin. (“Armstrong II”), 1 F.3d 1274, 1294 (D.C.
Cir. 1993) (emphasis added); see also CREW v. Cheney, 593 F. Supp. 2d 194, 217 (D.D.C. 2009)
(considering judicial review of “policies and guidelines that exclude from the reach of the PRA all
but a narrow category” of Vice Presidential Records (emphasis added)); Am. Historical Ass’n v.
Peterson, 876 F. Supp. 1300, 1314 (D.D.C.1995) (considering judicial review of agreement that
“on its face constitutes an opting out of the provisions of the PRA governing the Archivist's
disposal of Presidential records following a term of office,” which “are distinct from those that
govern disposal of Presidential records by an incumbent President”). However, “a close reading
of the Armstrong II decision suggests that the limited judicial review authorized by the D.C. Circuit
left untouched that portion of Armstrong I that gave the President unfettered control over his own
documents.” Judicial Watch, 845 F. Supp. 2d at 297; see also id. at 298 (noting “that the D.C.
Circuit has not yet blessed” Am. Historical Ass’n v. Peterson).
IV. Discussion
A. President Trump’s PRA Designations Are Not Reviewable
President Trump’s possession of the documents charged in Counts 1 through 32 was not
“unauthorized” under 18 U.S.C. § 793(e) because President Trump exercised virtually
unreviewable Article II executive authority to designate the records as personal when, as alleged
in the Superseding Indictment, he “caused” the materials to be transported out of the White House
while he was still in office. President Trump was still the President of the United States when, for
example, many of the documents at issue were packed (presumably by the GSA), transported, and
delivered to Mar-A-Lago. 3 DOJ previously took a substantially similar position on behalf of
3
See Patricia Mazzei and Julia Echikson, Trump has arrived in Palm Beach to begin life as a
private citizen, N.Y. TIMES, (Jan. 20, 2021), https://www.nytimes.com/2021/01/20/us/trump-
palm-beach.html.
-4-
NARA: “President Clinton . . . presumably classified the tapes as personal records by not
transferring them to the [A]rchives at the conclusion of his administration.” ECF No. 14 at 6,
Judicial Watch, Inc. v. NARA, No. 10 Civ. 1834 (D.D.C. Mar. 5, 2012) (emphasis added).
President Trump made the challenged designations, while in Office, as the “constitutional
superior of the Archivist.” Public Citizen v. Burke, 843 F.2d 1473, 1478 (D.C. Cir. 1988). “The
only reference in the entire [PRA] to the designation of records as personal versus Presidential also
calls for the decision to be made by the executive, and to be made during, and not after, the
presidency.” Judicial Watch, 845 F. Supp. 2d at 300-01. “The categorization of the records during
the Presidency controls what happens next . . . . The statute assigns the Archivist no role with
respect to personal records once the Presidency concludes.” Id. at 291. Thus, NARA has no
authority over Personal Records, and the PRA does not establish property rights for the United
States in those materials. See 44 U.S.C. § 2203(g)(1) (providing that, “[u]pon the conclusion of a
President’s term of office,” NARA “shall assume responsibility for . . . Presidential records”); see
also Hur Report at 193 4 (“‘[P]ersonal records’ remain the property of the former officeholder.”). 5
Thus, “NARA does not have the authority to designate materials as ‘Presidential records.’”
Judicial Watch, 845 F. Supp. 2d at 290; see also Armstrong I, 924 F.2d at 290 (“The Archivist also
lacks the authority under the PRA to inspect the President’s records or survey the President’s
4
U.S. Dep’t of Justice Special Counsel’s Office, Report on the Investigation Into Unauthorized
Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including
the Penn Biden center and the Delaware Private Residence of President Joseph R. Biden, Jr., (Feb.
5, 2024) (the “Hur Report”), available at www.justice.gov/storage/report-from-special-counsel-
robert-k-hur-february-2024.pdf.
5
Trump v. United States, 625 F. Supp. 3d 1257 (S.D. Fla. 2022), vacated and remanded, 54 F.4th
689 (11th Cir. 2022) (“Although the Government argues that Plaintiff has no property interest in
any of the presidential records seized from his residence, that position calls for an ultimate
judgment on the merits as to those documents and their designations.”).
-5-
records management practices.”); CREW, 593 F. Supp. 2d at 225 (“[T]he Court is left with the
undeniable conclusion that Congress vested almost no authority in the Archivist and NARA over
Vice-Presidential records during a Vice President’s term in office.”). 6
The PRA also “precludes judicial review of the President’s recordkeeping practices and
decisions,” including President Trump’s decision to designate materials as Personal Records.
Armstrong I, 924 F.2d at 291. “[P]ermitting judicial review of the President’s compliance with
the PRA would upset the intricate statutory scheme Congress carefully drafted to keep in equipoise
important competing political and constitutional concerns.” Id. at 290; see also id. at 291
(describing the “carefully crafted balance” based in part on “political compromises”). It would be
incongruous to permit judicial review of Personal Records designations in light of the fact that
presidents’ decisions to restrict access to Presidential Records for up to 12 years are not reviewable.
See 44 U.S.C. § 2204(a); see also Judicial Watch, 845 F. Supp. 2d at 289 n.3. Even with respect
to an incumbent president’s decision to destroy records while in Office, the PRA provides only
“cautious authority for the Archivist and Congress” to question those actions. Armstrong I, 924
F.2d at 290. Therefore, courts “must steer clear of efforts to supervise day-to-day operations within
the White House, even when a complaint presents legitimate concerns about an ongoing practice
that threatens the preservation of, and public access to, presidential records.” CREW v. Trump,
438 F. Supp. 3d at 61; accord CREW v. Trump, 924 F.3d 602, 609 (D.C. Cir. 2019) (“[W]hen it
comes to compliance with the PRA, courts have no jurisdiction to review the President’s ‘day-to-
day operations.’”). That structure is rooted in the separation of powers doctrine, which stands as
6
A bill pending in Congress, H.R. 1791, impliedly acknowledges the PRA’s existing restrictions
on NARA’s authority by seeking to require a NARA employee to be “present” in the Executive
Office of the President to “ensure” what NARA deems to be the “proper logging and handling of
Presidential records.” H.R. 1791, 118th Cong. (2023).
-6-
a key basis for our system of government and rule of law. Moreover, it would demolish the notion
of chain of command within the Executive Branch if a NARA employee, including the Archivist,
was able to dictate to a President, who embodies that whole branch of the government, how to
handle records.
DOJ and NARA have adopted this position with respect to government officials whose last
name is not Trump. Last fall, on behalf of the Attorney General and other federal government
defendants, DOJ argued that “D.C. Circuit precedent provides that the Court lacks jurisdiction to
review . . . day-to-day White House records management decisions under the Presidential Records
Act.” Ex. 1 at 13 (citing CREW, 924 F.3d at 609); see also Hur Report at 199 (“[D]uring the
Poindexter litigation, Mr. Reagan’s personal attorneys and the Department of Justice repeatedly
asserted that the diaries [containing classified information] were Mr. Reagan’s personal
property.”); see also id. at 251 (“[E]ven though it is possible the Department lacked knowledge of
all the facts about how Mr. Reagan stored his diaries, officials knew they contained classified
information and that Mr. Reagan was treating them as his personal records, and it appears no one
ever asked how the diaries were stored or made efforts to recover them.”). During congressional
testimony in March 2023, Jay Bosanko—NARA’s Chief Operations Officer at the time—testified
that, “[i]f our general counsel were sitting next to me, he would tell me that I should defer to the
President with respect to the implementation of the PRA.” Intelligence Committee Tr. 7 In other
words, as expected and accepted, inferior officers did not challenge the President’s handling of
classified information.
7
Transcript – U.S. House of Rep., Permanent Select Comm. on Intelligence, Washington, D.C.
(Mar. 1, 2023) (the “Intelligence Committee Tr.”), available at
https://intelligence.house.gov/uploadedfiles/3.1.23_nara_briefing_transcript.pdf.
-7-
DOJ attorneys acting on behalf of NARA also pressed these points in Judicial Watch. See
Ex. 2. There, a non-profit sent a FOIA request seeking 79 recordings that constituted “a verbatim
record of President Clinton being President.” 845 F. Supp. 2d at 290 (emphasis in original). The
recordings contained some of the same types of information that the Special Counsel’s Office
claims constitute national defense information in this case, including:
• “‘[F]oreign-policy decisions such as the United States’ military involvement in

Haiti’”;
• “‘President Clinton’s side of telephone conversations with foreign leaders’”;
• “‘President Clinton’s side of a telephone conversation with U.S. Secretary of State

Warren Christopher concerning a diplomatic impasse over Bosnia’”; and
• Details from “‘technical forecasts that he received during presidential briefings.’”
Id. at 290 n.1 (quoting pleading).
In response to the FOIA request in Judicial Watch, NARA took the position—apparently
without even reviewing the recordings—that the requested materials were “‘personal records of
President Clinton as defined by the PRA.’” Id. at 293 (quoting NARA letter). NARA relied on
the definition of “personal records” at 44 U.S.C. § 2201(3). Id. at 292. The definition excludes
the “functional equivalent of a diary or journal” that was “prepared or utilized for, or circulated or
communicated in the course of, transacting Government business.” 44 U.S.C. § 2201(3)(A). It is
clear that President Clinton’s recordings did not meet that definition based on the Judicial Watch
pleadings and Taylor Branch’s related book about the recordings, titled The Clinton Tapes:
Wrestling History With the President (2009). 8 Nevertheless, neither the government nor the court
demonstrated any interest in disputing that position. In contrast to the approach of DOJ and NARA
8
DOJ tried to compare President Clinton’s recordings to President Reagan’s diaries. See Ex. 3 at
22. However, President Reagan’s diaries also included classified information. Hur Report at 194.
-8-
in this case, there was no claimed rush to conduct classification reviews or a damage assessment.
Despite the apparently sensitive nature of the recordings, it was beyond the imagination of those
government employees that the recordings could, or should, be recovered through a subpoena or a
search warrant.
Rather, citing Armstrong I, DOJ and NARA argued that “courts cannot directly review a
President’s compliance with the PRA.” Ex. 2 at 29. The government’s conclusion followed from
a fact that is essentially dispositive here: “The PRA contains no provision compelling the Archivist
to assume responsibility for, or to review, the materials that the President ‘categorized’ and ‘filed
separately’ as personal records.” Id. at 15 (quoting the PRA). DOJ and NARA also invoked policy
considerations to support their non-reviewability argument by asserting that Congress gave “each
President complete control over his personal papers” in order to “encourage Presidents to create
and preserve such papers,” and in the hope “that Presidents would later voluntarily donate those
papers to the National Archives.” Id. at 35. “Congress was extremely concerned about future
Presidents’ privacy rights,” “judicial review would be extremely intrusive,” and “[s]uch review
would undoubtedly discourage Presidents from creating or preserving personal records in the first
place, which is the very opposite of Congress’s desired goal.” Id. at 37. At oral argument, the
court asserted that 44 U.S.C. § 2203(f) “seems to vest exclusive authority for saying this is personal
on” the president, “the person who would know.” Ex. 3 at 56. In a written opinion, the court
expressed “serious doubts about whether the former President’s retention of the audiotapes as
personal is a matter that is subject to judicial review,” and resolved the case on the basis that the
claims were not redressable. Judicial Watch, 845 F. Supp. 2d at 298-99. As relevant here, the
court, NARA, and the DOJ attorneys representing NARA found it “extraordinary” and
-9-
“unfounded” for the plaintiff to suggest that the recordings could be recovered from President
Clinton. Id. at 302.
The Court should preclude the Special Counsel’s Office from further contradicting the
positions that DOJ and NARA took in CREW v. Trump and Judicial Watch. See, e.g., Slater v.
U.S. Steel Corp., 871 F.3d 1174, 1176 (11th Cir. 2017) (en banc) (discussing doctrine of judicial
estoppel). Counts 1 through 32 must be dismissed because, by alleging inaccurately that President
Trump’s possession of the records was “unauthorized,” the Superseding Indictment seeks
impermissible judicial review of President Trump’s PRA designation decisions.
B. The PRA’s Recovery Mechanism Is Exclusive And Does Not Permit

Referrals Used To Predicate Criminal Investigations
In February 2022, a NARA official informed the FBI that NARA had “never” made a
“referral to DOJ.” Compel Mot. Ex. 2 at USA-00813153. That history is entirely consistent with
the absence of both criminal investigative tools and criminal penalties in the PRA. See, e.g., NFIB
v. OSHA, 595 U.S. 109, 119 (2022) (per curiam) (reasoning that the “lack of historical precedent .
. . is a telling indication” that OSHA’s COVID vaccine mandate “extends beyond the agency’s
legitimate reach” (cleaned up)); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (“Perhaps
the most telling indication of a severe constitutional problem with an executive entity is a lack of
historical precedent to support it.” (cleaned up)). Given the PRA’s limitations, as acknowledged
by NARA’s historical practices, NARA-OIG lacked “reasonable grounds to believe there has been
a violation of Federal criminal law” when it transmitted the sham referral to DOJ on February 9,
2022. 5 U.S.C. § 404(d); see also Compel Mot. Ex. 18 at USA-00309423-26. NARA’s purported
referral to DOJ prosecutors was improper and not foreseeable to President Trump given NARA’s
-10-
historical practices. Because the referral was improper, there was no basis for the FBI to
“predicate” an investigation. 9
Consequently, the obstruction and false-statements allegations in Counts 33 through 42
relating to that lawless investigation must also be dismissed. See, e.g., United States v. Beach, 80
F.4th 1245, 1256-57 (11th Cir. 2023) (requiring “nexus” to an “official proceeding” under 18
U.S.C. § 1512); United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008) (requiring “intent to
impede or influence a federal investigation” under 18 U.S.C. § 1519); United States v.
Blankenship, 382 F.3d 1110, 1136-40 (11th Cir. 2004) (holding that “jurisdiction” for purposes of
18 U.S.C. § 1001 is limited to situations where the agency “has power to exercise authority”). 10
As DOJ put it in Judicial Watch, “the alleged violator here is a former President of the
United States. When enacting the PRA, Congress was keenly aware of ‘the stark separation of
powers questions implicated by legislation regulating the conduct of the President’s daily
operations.’” Ex. 2 at 15 (quoting Armstrong I, 924 F.2d at 292). To the extent NARA seeks to
recover properly designated Presidential Records from any third party, including a former
president, the PRA provides the exclusive means for doing so, which is civil rather than criminal
in nature.
9
The FBI’s guidelines require that, to properly “predicate” a preliminary or full investigation,
“[a]n activity constituting a federal crime . . . has or may have occurred, is or may be occurring, or
will or may occur and the investigation may obtain information relating to the activity or the
involvement or role of an individual, group, or organization in such activity.” U.S. Dep’t of Justice,
Attorney General’s Guidelines for Domestic FBI Operations 21 (2008), available at
https://www.justice.gov/archive/opa/docs/guidelines.pdf.
10
Sections 1512(k) (Count 33), 1512(b)(2)(A) (Count 34), 1512(b)(2)(B) (Count 40), and
1512(c)(1) (Counts 35, 41), and 1519 (Count 36) all require that the alleged obstruction affect—
or attempt to affect—an official proceeding. See United States v. Aguilar, 515 U.S. 593, 599-600
(1995); see also Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08 (2005); United States
v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011).
-11-
Specifically, “[t]he PRA authorizes NARA to invoke the same enforcement mechanism
embodied in the Federal Records Act . . . .” Judicial Watch, 845 F. Supp. 2d at 302 (citing 44
U.S.C. § 2112(c) (PRA), 3106 (Federal Records Act)). 11 “[T]he Federal Records Act establishes
only one remedy for the improper removal of a ‘record’ from the agency,” and Congress “opted in
favor of a system of administrative standards and enforcement.” Kissinger v. Reps. Comm. for
Freedom of the Press, 445 U.S. 136, 148-49 (1980). The process “begins with a request to the
Attorney General to institute an action for the recovery of missing records.” Judicial Watch, 845
F. Supp. 2d at 302 (citing 44 U.S.C. § 2112(c) (PRA), 3106 (Federal Records Act)).
In response to a NARA request, the Attorney General may pursue recovery via replevin.
See ECF No. 1, United States v. Zook, No. 12 Civ. 1465 (D. Md. May 15, 2012); United States v.
McElvenny, 2003 WL 1741422 (S.D.N.Y. Apr. 1, 2003) (replevin action relating to map annotated
by President John F. Kennedy during Cuban Missile Crisis). Tellingly, that is precisely what DOJ
did in response to the portion of the February 9, 2022, sham referral from NARA-OIG that did not
relate to President Trump. In an effort to recover those records, DOJ initiated a replevin action
rather than a criminal investigation, grand jury subpoenas, and search warrants. See ECF No. 1
¶ 6, United States v. Navarro, No. 22 Civ. 2292 (D.D.C. Aug. 3, 2022).
11
In Amstrong II, the D.C. Circuit went even further by suggesting that “[n]either the Archivist
nor an agency head can initiate any action through the Attorney General to effect recovery or
ensure preservation of presidential records. Compare 44 U.S.C. § 3106 (requiring agency heads
to notify the Archivist of unlawful removal or destruction of federal records and to seek legal
action through the Attorney General to recover or preserve the records); id. § 2905(a) (directing
the Archivist to assist the agency head in initiating an action through the Attorney General for the
recovery of wrongfully removed federal records or for other legal redress, and requiring the
Archivist to make her own request to the Attorney General if the agency head is recalcitrant).” 1
F.3d at 1291.
-12-
According to a brief filed by DOJ and NARA in Judicial Watch, “[t]his administrative
enforcement scheme is exclusive,” and “courts may not order the recovery or retrieval of records
that may have been removed or destroyed.” Ex. 2 at 11 (emphasis added); see also id. at 20 (“The
PRA does not require NARA to physically seize presidential records, but instead relies upon a
much more limited (and sensible) administrative enforcement scheme.”); id. at 21 (“NARA—the
agency charged with administering this provision—treats this enforcement mechanism as
exclusive for both the PRA and the FRA.”). 12 Relatedly, the Judicial Watch court observed that,
“because the [Clinton recordings] are not physically in the government’s possession,” NARA
“would be required to seize them directly from President Clinton” and NARA considered such a
seizure to be an “‘extraordinary request’ that is ‘unfounded [and] contrary to the PRA’s express
terms . . . .’” Id. at 302-03 (emphasis added). DOJ made similar assertions at oral argument:
Judge: Let’s say a president kind of maliciously over classifies [as Presidential Records to
avoid FOIA], what is the remedy?
DOJ: The first one and the primary remedy is that it always lies with the archivist and the
attorney general, who have the authority if they believe that the president has misclassified
something that they can invoke the discretionary enforcement mechanism and pursue
recovery of those records.
Ex. 3 at 13. DOJ characterized recourse to the PRA’s “discretionary enforcement mechanism” as
a “very serious” step for the Archivist to take, id. at 14, and noted that “if Congress believes that
a president is wildly misclassifying information, it can pass a law to change the statutory structure
or to seize some of those records . . . .” Id. at 15. Congress has not done so, leaving in place this
civil recovery mechanism as NARA’s exclusive enforcement option under the PRA.
12
Congress knows that explicit language is required to rebut the exclusivity default. For example,
in a pending bill that would add a civil enforcement option to 18 U.S.C. § 1924, the House included
language that is expressly not exclusive: “[t]he imposition of a civil penalty under this subsection
does not preclude any other criminal or civil statutory, common law, or administrative
remedy . . . .” H.R. 1791, 118th Cong. (2023).
-13-
CONCLUSION
For the foregoing reasons, President Trump respectfully submits that the Court should
dismiss the Superseding Indictment based on the Presidential Records Act.
Dated: February 22, 2024 Respectfully submitted,
/s/ Todd Blanche

Todd Blanche (PHV)
[email protected]
Emil Bove (PHV)
[email protected]
BLANCHE LAW PLLC
99 Wall Street, Suite 4460
New York, New York 10005
(212) 716-1250
/s/ Christopher M. Kise

Christopher M. Kise
Florida Bar No. 855545
[email protected]
CONTINENTAL PLLC
255 Alhambra Circle, Suite 640
Coral Gables, Florida 33134
(305) 677-2707
Counsel for President Donald J. Trump
-14-
CERTIFICATE OF SERVICE
I, Christopher M. Kise, certify that on February 22, 2024, I filed the foregoing document
and served it on the Special Counsel’s Office via email, or CM/ECF to the extent possible, as
required by the Court’s February 20, 2024 Order. ECF No. 320.
/s/ Christopher M. Kise

Christopher M. Kise
-15-
Case 9:23-cr-80101-AMC Document 327-1 Entered on FLSD Docket 02/22/2024 Page 1 of
148
EXHIBIT 1
Case 9:23-cr-80101-AMC
Case 1:23-cv-00759-RJL
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
1 of 26 Page 2 of
148
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
JOHN SOLOMON,
Plaintiff,
v.
No. 23-cv-00759-RJL
MERRICK GARLAND, et al.,
Defendants.
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT AND IN
OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
INTRODUCTION
On January 20, 2021, the Department of Justice (DOJ) received a package of documents
from the White House comprising materials related to the Federal Bureau of Investigation (FBI)
Crossfire Hurricane investigation.1 Accompanying the binder on January 20, 2021, was Mr.
Meadows’s instruction: DOJ was to exercise its discretion to apply redactions under the Privacy
Act and then to release the redacted materials to the public. The instructions included no request
to return the documents, no reservation of legal control, and no requirement of confidentiality.
As to each of these facts, there is no genuine dispute. They are established conclusively
by the materials submitted alongside Plaintiff’s motion for partial summary judgment. But, far
from demonstrating Plaintiff’s entitlement to relief, they establish that summary judgment should
1
It is not clear whether the records that Mr. Meadows returned were delivered to DOJ in
a binder or simply as a package of documents. The term “binder” is used herein for ease of
reference.
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
2 of 26 Page 3 of
148
be entered for the Defendants as to both of Plaintiff’s claims—to the extent any claim remains
after adjudication of Defendants’ pending Motion to Dismiss.
Both the replevin and mandamus claims depend on Plaintiff’s contention that the binder
Mr. Meadows returned to DOJ on January 20, 2021, is a Presidential record. But, while copies
of records from the binder were sent to the National Archives and Records Administration
(NARA)—albeit in undifferentiated form, with what appear to be copies of documents at
multiple stages of declassification review—and are maintained there as Presidential records,
there can be no genuine dispute that the version of the binder that Mr. Meadows sent to DOJ
fulfills all the elements of the well-established test for determining whether a document is an
“agency record.” By definition, such materials are excluded from the scope of the definition of
“Presidential record” that Congress supplied in the Presidential Records Act. See 44 U.S.C.
§ 2201(2)(B)(i); Armstrong v. Exec. Office of the President (“Armstrong II”), 1 F.3d 1274, 1292
(D.C. Cir. 1993). In sum, the binder is an agency record because DOJ “obtained” it “in the
legitimate conduct of its official duties,” see U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
144 (1989), when Mr. Meadows returned it to DOJ for application of redactions based on its
discretion and subsequent release.
The D.C. Circuit uses four factors to assess whether a document meets the second half of
the Tax Analysts standard: “1) the intent of the document’s creator to retain or relinquish control
of the records; 2) the ability of the agency to use and dispose of the record as it sees fit; 3) the
extent to which agency personnel have read or relied upon the document; and 4) the degree to
which the document was integrated into the agency’s record system or files.” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 218 (D.C. Cir. 2013). As discussed herein, each of those
factors readily supports a finding that the collection at issue is an agency record. First, Mr.
2
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
3 of 26 Page 4 of
148
Meadows transmitted the binder to DOJ and evinced no intent to retain control of that record.
Indeed, rather than trying to restrict its dissemination, he instructed DOJ to exercise its discretion
in redacting the binder’s contents, and to release the unredacted portions publicly. Second, in
light of that instruction—and the attendant absence of any requirement that DOJ return the
records or keep them confidential—the second factor is easily fulfilled here too. Third, agency
personnel have indisputably read and relied upon the contents of the binder, since they comprise
materials related to an FBI investigation that originated with the agency in the first instance.
And, finally, the binder plainly is integrated into DOJ’s records system or files since it is being
processed in response to a Freedom of Information Act (FOIA) request, with a redacted version
posted on the FBI’s FOIA reading room.
Plaintiff would turn the Judicial Watch test on its head. See Mem. of P. & A. in Supp. of
Mr. Solomon’s Partial Mot. for Summ. J. (“Plaintiff’s motion” or “Pl.’s Mot.”), ECF No. 16-1.
Although the test was devised to determine whether materials were treated as agency records,
Plaintiff asks the Court to deploy the test in reverse—to assess whether records that have been
treated as agency records should have been treated differently, and removed from agency
control. Even if the Court were to apply the test for this novel purpose, it would not support
Plaintiff’s cause for all the reasons discussed herein; in sum, the precedent equates “control”
under this test with protection from disclosure; an instruction that DOJ use its discretion to apply
redactions and then make the redacted materials public is evidence not of control, but of the
relinquishment of control.
Plaintiff also argues that—if the Presidential Records Act and FOIA permit the treatment
of the binder as an agency record, and if the binder can consequently be released with redactions
in addition to those that, according to Plaintiff, the former President intended—then both statutes
3
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
4 of 26 Page 5 of
148
are unconstitutional. But there is no basis in the Constitution—or any other law—on which to
enforce the former President’s instructions or alleged subjective intentions concerning the binder,
as Plaintiff evidently seeks to do here. Nor are there compelling equitable grounds supporting
the issuance of the writ in this case.
For all the reasons explained herein, the undisputed facts establish that the subject records
are agency records and Plaintiff has failed to establish a right—much less a clear and
indisputable right—to an order from this Court requiring their transfer from DOJ to NARA. This
is especially so given the exacting standard applicable to a request for mandamus relief.
Defendants therefore respectfully ask that this Court deny Plaintiff’s motion for partial summary
judgement on Plaintiff’s request for mandamus, and enter summary judgment for Defendants on
both Plaintiff’s mandamus and replevin claims.2
FACTUAL BACKGROUND
On January 19, 2021, then-President Trump issued a Memorandum concerning a binder
of materials related to the FBI’s Crossfire Hurricane investigation. These were federal records
that DOJ had provided to the White House at the President’s request. Mem., Declassification of
Certain Materials Related to the FBI’s Crossfire Hurricane Investigation, 86 FR 6843 (Jan. 19,
2021), Pl.’s Mot., Ex. 3, ECF No. 16-5. Therein, President Trump noted that he had “requested
the documents so that a declassification review could be performed,” id., and that—with the
exception of the portions that the FBI in consultation with the Intelligence Community had
determined “most crucial” to protect—he was ordering declassification of the materials in the
2
Defendants continue to maintain that the Court lacks jurisdiction over Plaintiff’s
mandamus claim for the reasons explained in their motion to dismiss, see Defs.’ Mot. to Dismiss,
ECF No. 10-1 at 13–17; Defs.’ Reply in Supp. of their Mot. to Dismiss, ECF No. 14 at 7–15, and
submit the instant motion for summary judgment as an alternative basis on which judgment
should be entered for Defendants.
4
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
5 of 26 Page 6 of
148
binder. Id. He clarified, however, that the decision to disclose materials in the binder “[did] not
extend to materials that must be protected from disclosure pursuant to orders of the Foreign
Intelligence Surveillance Court and [did] not require the disclosure of certain personally
identifiable information or any other materials that must be protected from disclosure under
applicable law.” Id.
The next day, Mr. Meadows returned the “bulk of the binder” to DOJ with instructions
that DOJ conduct a Privacy Act review and then release the remaining material with redactions
applied. See Jan. 20, 2021, Mem., Pl.’s Mot., Ex. 4, ECF No. 16-6 at 1. Since then, NARA
received and maintains as Presidential records “roughly 2700 undifferentiated pages” that appear
to be multiple copies of the documents from the binder at various stages of declassification
review. See Email from Gary Stern to John Solomon (June 23, 2022), Pl.’s Mot., Ex. 2, ECF No.
16-4, at 13–14. The records that then-Chief of Staff Meadows transferred back to DOJ—
consistent with “routine practice for agency records that are undergoing declassification or
similar review by other agencies or the White House,” Email from Gary Stern to Kash Patel
(Aug. 17, 2022), Pl.’s Mot., Ex. 2, ECF No. 16-4, at 1—have properly remained with DOJ as
agency records subject to the Federal Records Act. Indeed, at the time of the correspondence
that Plaintiff submits alongside his motion for partial summary judgment, these records were
already “the subject of a FOIA lawsuit with DOJ,” id., and most of the materials have now been
released in redacted form on the FBI’s FOIA reading room: https://vault.fbi.gov/crossfire-
hurricane-part-01.
LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
5
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
6 of 26 Page 7 of
148
R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit,” and a dispute is
genuine if “the evidence is such that a reasonable [trier of fact] could” rule in favor of the
nonmoving party on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
moving party for summary judgment bears the initial burden of identifying those portions of the
pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material
fact. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). After the moving party has made
such a showing, the nonmoving party may avoid summary judgment only by adducing evidence
demonstrating “specific facts showing that there is a genuine issue for trial.” See id.
On a motion for summary judgment, “[t]he evidence presented must be admissible at trial
or at least ‘capable of being converted into admissible evidence.’” Allen v. Brown, 435 F. Supp.
3d 16, 22 (D.D.C. 2020) (quoting Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d
1365, 1369 (D.C. Cir. 2000) and citing Fed. R. Civ. P. 56(c)). To the extent the parties rely on
affidavits or declarations, those documents also “must be made on personal knowledge.” Allen,
435 F. Supp. 3d at 22 (Fed. R. Civ. P. 56(c)(4)).
ARGUMENT
I. The Binder that Mr. Meadows Returned to DOJ Meets All the Elements of the
Definition of an Agency Record, and therefore Cannot be a Presidential Record.
“The Presidential Records Act exclu[des] . . . records subject to the FOIA from the class
of materials that may be treated as presidential records.” Armstrong II, 1 F.3d at 1292; 44 U.S.C.
§ 2201(2)(B)(i) (providing “Presidential records” “does not include any documentary materials
that are . . . official records of an agency”). Thus, any materials that fulfill the test for “agency
records,” by definition, cannot be Presidential records. There can be no genuine dispute that the
binder that Mr. Meadows returned to DOJ fulfills each element of that test.
6
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
7 of 26 Page 8 of
148
A document is an “agency record” if it fulfills two requirements: “First, an agency must
either create or obtain the [record].” Tax Analysts, 492 U.S. at 144. “Second, the agency must
be in control of the requested materials at the time [a Freedom of Information Act request for the
document] is made.” Id. at 145. The Supreme Court clarified: “[b]y control we mean that the
materials have come into the agency’s possession in the legitimate conduct of its official duties.”
Id. The latter element is intended to exclude such items as “personal materials in an employee’s
possession, even though the materials may be physically located at the agency.” Id. The
baseline presumption is that a document possessed by an agency is an agency record. See id. at
142 n.3 (“[t]he burden is on the agency to demonstrate . . . that the materials [at issue] are not
‘agency records.’”).
A. DOJ obtained the binder when the then-Chief of Staff transmitted it on January 20,
2021.
The first factor of the Tax Analysts test is that “an agency must either create or obtain the
[record].” Tax Analysts, 492 U.S. at 144. Here, DOJ obtained the existing version of the binder
when Mr. Meadows transmitted it alongside his January 20, 2021, Memorandum. See Pl.’s Mot.,
Ex. 4, ECF No. 16-6; id., Ex. 2, ECF No. 16-4 at 1. Thus, the first element of the applicable test
plainly is fulfilled in this case. Moreover, contrary to Plaintiff’s treatment of the “binder,” the
record received from the White House on January 20, 2021 was not the same as the “binder” that
existed at the White House—the undisputed evidence shows that the then-President’s Chief of
Staff altered that collection and transferred a different, diminished set of materials to DOJ. Mr.
Meadows’s January 20, 2021, Memorandum clearly states that he was, on that date, transferring
only “the bulk of the binder,” and “includ[e]d all [portions] that appear to have a potential to
raise privacy concerns.” Jan. 20, 2021, Mem., Pl.’s Mot., Ex. 4, ECF No. 16-6 at 1. Thus,
because of the actions of the then-President’s Chief of Staff, what the Plaintiff terms “the
7
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
8 of 26 Page 9 of
148
President’s Crossfire Hurricane binder” no longer exists as such. Instead, the “record” at issue
comprises the altered binder that Mr. Meadows transferred to DOJ, and Plaintiff effectively
concedes that this binder was received in the ordinary course of business by DOJ.
B. The binder has come into DOJ’s possession in the legitimate conduct of its
official duties.
As to the second component of the Tax Analysts test, four factors can inform the
determination of whether an agency is “in control of the materials” such that they are subject to
FOIA. Tax Analysts, 492 U.S. at 144; Judicial Watch, Inc., 726 F.3d at 218 n.11 (explaining that
the D.C. Circuit has regarded the four-factor test “as a gloss” on the Supreme Court’s statement
that “‘control’ means ‘that the materials have come into the agency’s possssion in the legitimate
conduct of its official duties’”) (quoting Tax Analysts, 492 U.S. at 145). Those four factors are:
“1) the intent of the document’s creator to retain or relinquish control of the records; 2) the
ability of the agency to use and dispose of the record as it sees fit; 3) the extent to which agency
personnel have read or relied upon the document; and 4) the degree to which the document was
integrated into the agency’s record system or files.” Judicial Watch, Inc., 726 F.3d at 218.
In a setting in which an agency creates or obtains records in the course of its official
duties, the first two factors may be determinative. See United We Stand Am. v. IRS, 359 F.3d
595, 600–603 (D.C. Cir. 2004). United We Stand is instructive on this point. That case
concerned a plaintiff’s request for a document created by the IRS in response to a request from a
Congressional committee. See id. at 597. Having applied the first two factors, the Court
determined that the agency’s response to the Congressional committee’s request was not an
“agency record” to the extent—but only to the extent—that the response would disclose the
content of the committee’s request, which the committee intended to remain confidential. See id.
at 600–02. The IRS argued that the remaining factors counseled against finding the entirety of
8
Document Document
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
Docket Page
02/22/2024
9 of 26 Page 10 of
148
the response to be an agency record, but the Court held that the first two factors were
dispositive—although the agency “created the document only to respond to Congress, used it for
no other purpose, and [kept] it in a separate file,” id. at 602, such considerations could not
remove the entirety of the document from the definition of agency records “for doing so would
conflict with the Supreme Court’s Tax Analysts definition of agency control: ‘by control we
mean that the materials have come into the agency’s possession in the legitimate conduct of its
official duties.’” Id. at 603 (quoting Tax Analysts, 492 U.S. at 145). The D.C. Circuit concluded
that, where the agency “created and retains the response [to the Congressional request] in the
course of its official obligation to communicate with the [Congressional committee],” “absent
clear . . . expression of congressional intent to control the entire response” the IRS’s handling of
the document could not “turn the entire agency-created record into a congressional document.”
Id. (quotation omitted).
The same reasoning applies here. DOJ initially provided the binder to the White House
for declassification review, see supra at 4, and the White House then returned the binder with no
accompanying expression of an intent to control it. On January 20, 2021, DOJ obtained a binder
from Mr. Meadows in the course of its “official obligation to communicate with” the White
House. Indeed, Mr. Meadows indisputably charged DOJ with additional “official duties” in
connection with the binder, i.e., the application of the Department’s discretion to redact the
binder’s contents for Privacy Act concerns. Pl.’s Mot., Ex. 4, ECF No. 16-6, at 1. And, as
discussed below, in connection with the first and second factors, Mr. Meadows expressed his
intent to relinquish control of the binder when he transferred it, permitting DOJ to use and
dispose of the record after using its discretion to apply redactions. See supra at 5. Under such
circumstances, just as in United We Stand, removal of this record from the definition of “agency
9
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
10 of 26Page 11 of
148
records” “would conflict with the Supreme Court’s Tax Analysts definition of agency control.”
United We Stand, 359 F.3d at 602.
1. Mr. Meadows created the current version of the binder, and evinced his intent to
relinquish control of it when he transferred it to DOJ for application of DOJ’s
discretion and subsequent release.
The first element of the D.C. Circuit test examines “the intent of the document’s creator
to retain or relinquish control of the records.” Judicial Watch, Inc., 726 F.3d at 218. The focus
is on “stated intent” expressed in writings concerning the subject records, and the conduct of the
agency. Judicial Watch, Inc. v. U.S. Secret Serv., 803 F. Supp. 2d 51, 58 (D.D.C. 2011), aff’d in
part, rev’d in part on other grounds, 726 F.3d 208 (D.C. Cir. 2013). Plaintiff relies extensively
on Judicial Watch, which involved White House visitor records that were in the physical
possession of the Secret Service (which is an agency subject to FOIA), where the D.C. Circuit
held the subject records were not under agency control. See Pl.’s Mot. at 1, 12, 13, 14, 15 (citing
Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013)). In so ruling, the Court
focused on a memorandum of understanding (MOU) in which “the White House at all times
assert[ed], and the Secret Service disclaim[ed], all legal control over any and all [those records].”
726 F.3d at 218. That MOU clearly stated that the records remained “at all times Presidential
records . . . under the exclusive legal custody and control of the White House.” Id. at 231.3 In
addition, as the D.C. Circuit remarked in Judicial Watch, the White House visitor records at
issue in that case reflected White House information, i.e., appointments within the White House
complex. The Court reasoned: “At bottom, we do not believe Congress intended that FOIA
requesters be able to obtain from the gatekeepers of the White House what they are unable to
3
See also Judicial Watch, Inc., 726 F.3d at 231 (noting this provision as evidence of “the
way in which both parties historically regarded and treated the documents.”).
10
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
11 of 26Page 12 of
148
obtain from its occupants.” Id. at 233. In this case, by contrast, the information at issue is the
agency’s information, obtainable under FOIA directly from the agency. It was provided to the
White House for the sole purpose of conducting a declassification review, and a subset was
returned to DOJ for DOJ to apply redactions in its sole discretion.
Nor does ACLU v. CIA support Plaintiff’s position. That case addressed a copy of a
Senate Committee report concerning a CIA program that the Committee had transmitted to the
CIA. See ACLU v. CIA., 823 F.3d 655, 658–59 (D.C. Cir. 2016). In that case, as in Judicial
Watch, Congress’s statement of intent to exert continued control over the report at issue was
clear:
These documents remain congressional records in their entirety and disposition and
control over these records, even after the completion of the Committee’s review,
lies exclusively with the Committee. As such, these records are not CIA records
under the Freedom of Information Act or any other law.... If the CIA receives any
request or demand for access to these records from outside the CIA under the
Freedom of Information Act or any other authority, the CIA will immediately notify
the Committee and will respond to the request or demand based upon the
understanding that these are congressional, not CIA, records.
Id. at 665 (quoting as “critical evidence” a letter from Senate Committee Chairman and Vice
Chairman to the Director of the CIA concerning Senate Committee Report transmitted to the
CIA).
There is nothing approaching such language in Mr. Meadows’s January 20, 2021,
Memorandum. His transmission of the modified binder stands in sharp contrast to the MOU in
Judicial Watch and the letter asserting continued Congressional control in ACLU v. CIA. He did
not provide that the binder he was transmitting would remain a Presidential record; that it would
be subject to White House control; or that it should be returned to either the White House or
NARA. Rather, Mr. Meadows gave DOJ the discretion to apply its own redactions prior to
11
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
12 of 26Page 13 of
148
making a public release. This scenario presents the opposite of control; it evidences a
relinquishment of control and an intent to pass control to DOJ.4
Plaintiff argues that Mr. Meadows’s transmission of the binder was “without the
President’s knowledge or consent,” and that the President’s intent was to retain the complete
binder as a Presidential Record. Pl.’s Mot. at 16; Pl.’s Stmt. of Undisputed Material Facts, ¶ 17.
Defendants are unaware of any case that examined an official’s later-expressed subjective intent
in assessing a document’s status as an agency record. To the contrary, for expressions of an
intent to control, the D.C. Circuit looks to “specific instructions . . . to agencies limiting either
the use or disclosure of the documents” at issue. United We Stand Am., Inc., 359 F.3d at 602
(quoting Paisley v. CIA, 712 F.2d 686, 694 (D.C. Cir. 1983)) (emphasis in original); see id.
(“post-hoc objections to disclosure cannot manifest the clear assertion of . . . control that our
case law requires”); see also ACLU, 823 F.3d at 664 (giving no weight to a letter from a Senate
Committee Chairman prepared after the commencement of FOIA action, because it constituted a
post-hoc objection to disclosure) (quotation omitted).
But even if such an inquiry into later-expressed subjective intent were consistent with
Circuit precedent, Plaintiff’s allegation regarding the former President’s subjective intent should
be given no weight by this Court. Those allegations rest wholly on hearsay, see Pl.’s Mot., Ex.
5, ECF No. 16-7, ¶ 17, and are unsupported by any admissible evidence. See Allen, 435 F. Supp.
3d at 22 (evidence presented at summary judgment “must be admissible at trial or at least
‘capable of being converted into admissible evidence’”) (quoting Gleklen, 199 F.3d at 1369).
4
Mr. Meadows’s January 20, 2021, Memorandum makes plain that he returned only “the
bulk of the binder” to DOJ, “including all [portions] that appear to have a potential to raise
privacy concerns.” See Jan. 20, 2021, Mem., Pl.’s Mot., Ex. 4, ECF No. 16-6 at 1. This
retention of control over some portions of the binder supplies further evidence that Mr. Meadows
relinquished control over the portion of the binder that he returned.
12
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
13 of 26Page 14 of
148
Plaintiff presents no admissible evidence that the President did not support Mr. Meadows’s
actions or that Mr. Meadows was acting in rogue fashion, without the President’s imprimatur.
Mr. Meadows was the former President’s Chief of Staff and is presumed to have acted on his
behalf in transmitting the subject record to DOJ.
To the extent Plaintiff’s underlying complaint is that Mr. Meadows should not have
altered the binder or transferred it to the Department; that he should have done so with an
instruction that the binder be returned to the White House or NARA; or that he should have
retained an exact copy of what was transferred, D.C. Circuit precedent provides that the Court
lacks jurisdiction to review such day-to-day White House records management decisions under
the Presidential Records Act. See Citizens for Resp. & Ethics in Washington v. Trump, 924 F.3d
602, 609 (D.C. Cir. 2019); see also Defs’ Mot. to Dismiss, ECF No. 14, at 14–16 (discussing
case law). Plaintiff’s motion is silent as to the Court’s jurisdiction, stating only: “[t]his court has
found, and the government has acknowledged, that a plaintiff may seek mandamus for
Presidential Records Act violations.” Pl.’s Mot. at 1 (citing Citizens for Resp. & Ethics in
Washington (CREW) v. Cheney, 593 F. Supp. 2d 194, 217 (D.D.C. 2009) (quoting the
government’s brief)). But the Court’s holding in CREW was not so broad. Rather, the Court
held that a request for mandamus properly could be predicated on an alleged Presidential
Records Act violation as to which the Court possessed jurisdiction.5 See id. The Court
separately discussed that, while jurisdiction exists for review of certain claims, there is no
5
Likewise, the government did not concede the Court’s jurisdiction over such claims.
Rather, the government acknowledged only that “the absence of a private right of action under
the [Presidential Records Act] alone does not necessarily foreclose mandamus relief.” CREW,
593 F. Supp. 2d at 217 (quoting the government’s brief in that action) (emphasis added).
13
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
14 of 26Page 15 of
148
jurisdiction to review “‘creation, management, and disposal’ decisions,” id. (quoting Armstrong
II, 1 F.3d at 1278), such as the decision of Mr. Meadows here.
In sum, Mr. Meadows’s actions in transmitting the binder to DOJ and relinquishing
control—especially when contrasted with his decision to retain control of some portions of the
original binder, and transfer only “the bulk” of its content to DOJ—all weigh heavily in favor of
finding that the version of the binder Mr. Meadows chose to transmit to DOJ is an agency record.
2. Mr. Meadows’s transmission imbued DOJ with the discretion to use and dispose
of the record as DOJ saw fit.
The second element of the D.C. Circuit test—whether the Department “has discretion to
use and dispose of the record as it sees fit”—also weighs heavily in favor of finding that the
binder is an agency record. Plaintiff conflates this element with the question of whether any
instructions were provided to the agency regarding a document’s subsequent use, arguing that the
instructions to exercise discretion in applying redactions under the Privacy Act and then to
publicly release the binder amount to restrictions of the Department’s discretion under this
factor. See Pl.’s Mot. at 12 (“The Attorney General never could use and dispose of the binder as
he saw fit.”) (emphasis by Plaintiff). Plaintiff is incorrect.
The test for whether a document is an agency record is used to determine whether a
document is subject to the disclosure requirements of FOIA. See, e.g., Judicial Watch, 726 F.3d
at 211; see also United We Stand Am., Inc. v. I.R.S., 359 F.3d 595, 597 (D.C. Cir. 2004)
(explaining that, in determining whether an IRS response to a Congressional committee request
was an agency record subject to FOIA, the Court was “balancing Congress’s authority to
maintain the confidentiality of its own materials against the broad mandate of disclosure lying at
the heart of FOIA”). The inquiry into whether an agency “has discretion to use and dispose of”
materials in this context is thus tantamount to an inquiry into whether an agency may disclose the
14
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
15 of 26Page 16 of
148
subject record, or whether there are restrictions preventing it from doing so such as a requirement
that the record be kept confidential or returned by the agency to an entity not subject to FOIA.
In Judicial Watch, for example, the D.C. Circuit cited a requirement that the agency
“transfer the records to the White House within 60 days of [their creation] and then purge [the
records] from its system,” as a restriction on the agency’s discretion to use and dispose of the
subject records. Judicial Watch, 726 F.3d at 219. Likewise, in United We Stand America, Inc. v.
IRS, the D.C. Circuit found that the agency “retain[ed] the ‘ability to use and dispose of’” the
records at issue in that case, except to the extent that they would reveal a Congressional
Committee’s request, which was accompanied by a “confidentiality directive” from the
Committee. United We Stand Am., Inc., 359 F.3d at 601, 602 (quoting the Committee’s
instruction in the request that “[t]his document may not be disclosed without prior approval of
the Joint Committee.”).
Here, Plaintiff’s contention that the Department did not have “discretion to use and
dispose of the record as it sees fit” based on a White House instruction to DOJ to use its
discretion to apply Privacy Act redactions and then make the document public gets this factor
backwards.6 In United We Stand, the D.C. Circuit cautioned against an approach to this analysis
that would result in removing materials from the purview of FOIA, i.e., treating them as non-
6
The Privacy Act, inter alia, prohibits disclosure of “any record which is contained in a
system of records by any means of communication to any person, or to another agency, except
pursuant to a written request by, or with the prior written consent of, the individual to whom the
record pertains.” 5 U.S.C. § 552a(b). Mr. Meadows’s January 20, 2021, Memorandum
instructed DOJ to redact the binder “under the standards that the Department of Justice normally
would apply,” consistent with the White House’s intention that materials are not released which
would constitute “an unwarranted invasion of personal privacy.” See Jan. 20, 2021, Mem., Pl.’s
Mot., Ex. 4, ECF No. 16-6 at 1. Thus, far from a “ministerial application of very carefully
specified redactions” as Plaintiff contends, Pl.’s Mot. at 20, execution of Mr. Meadows’s
instruction clearly entailed exercise of DOJ officials’ judgment and discretion.
15
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
16 of 26Page 17 of
148
agency records, “even if Congress [or, as applied here, the White House] expressed no intent to
keep them secret.” United We Stand Am., Inc., 359 F.3d at 603. The D.C. Circuit cautioned that
this approach would “undermin[e] the spirit of broad disclosure that animates [FOIA].” Id.
Mr. Meadows’s January 20, 2021, Memorandum expressed no intent to keep secret the
records at issue here. There was no limitation on the agency’s discretion to disclose the
materials; to the contrary, he instructed that disclosure should occur once redactions were
applied. This instruction, and the accompanying lack of limitation on disclosure, weigh heavily
in favor of finding that the subject record is an agency record under the Tax Analysts test.
3. DOJ’s treatment of the binder likewise supports a finding that it is an agency

record.
As explained above, where an agency created or obtained a record in the course of its
official duties, and there is no “clear” expression of an intent to control that record by the entity
not subject to FOIA, United We Stand, 359 F.3d at 603, the first two factors are determinative.
See supra at 8–9. However, if the Court reaches consideration of the third and fourth factors, the
Court should conclude that they also favor a determination that the binder is an agency record.
With respect to the third factor, the extent to which agency personnel have read or relied
upon the document, see Judicial Watch, 726 F.3d at 218: the binder comprises materials related
to an FBI investigation. Indeed, the very name of the former President’s January 19, 2021,
Memorandum reflects as much; the Memorandum is entitled “Declassification of Certain
Materials Related to the FBI’s Crossfire Hurricane Investigation.” See 86 FR 6843 (Jan. 19,
2021). Agency personnel, by definition, would have created, and read and relied upon such
materials.
And, as to the fourth factor—“the degree to which the document was integrated into the
agency’s record system or files,” Judicial Watch, 726 F.3d at 218—this, too, favors treating the
16
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
17 of 26Page 18 of
148
binder as an agency record. Indeed, the very processing of the binder via FOIA is evidence that
these materials are part of the Department’s official files, and bear no resemblance to materials
analogous to “personal documents located within an agency,” which this factor is intended to
exclude. See United We Stand, 359 F.3d at 603; see also id. (noting that “cases that employed
the four factor analysis to determine agency control did not involve documents that were created
and possessed by the agency “in the legitimate conduct of its official duties”).
*****
In sum, application of the well-established test used to determine whether material is an
agency record to the undisputed facts of this case demonstrates that the binder at issue here
satisfies that test. Since it meets the requirements for an agency record, the binder, by definition,
cannot be a Presidential record. See 44 U.S.C. § 2201(2)(B)(i); see also Armstrong II, 1 F.3d at
1292 (recognizing that the Presidential Records Act “exclu[des] . . . records subject to the FOIA
from the class of materials that may be treated as presidential records”). For this reason, because
both Plaintiff’s claim for replevin and his request for mandamus depend entirely on his
contention that the binder is a Presidential record, see Compl. ¶¶ 34, 37–39, Defendants are
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The Court should therefore
grant the Defendants’ motion for summary judgment and deny the Plaintiff’s partial motion for
summary judgment.
II. Plaintiff’s Concerns about Changes in the Status of the Record are Misplaced.
Plaintiff complains that Defendants “fail to explain precisely when the binder became an
agency record,” and criticizes a change in status from Presidential record to agency record as
“alchemy unsupported by controlling statutory text or Circuit precedent.” Pl.’s Mot. at 17. But
Plaintiff is mistaken. There is nothing anomalous about records changing status, depending on
17
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
18 of 26Page 19 of
148
their location—a phenomenon that is reflected in Circuit precedent. Indeed, it is commonplace
that records that were, for example, congressional records while in Congress become agency
records when received by an agency. Similarly, emails that are Presidential records while in the
White House become agency records when shared with an agency, and are processed as federal
records when responsive to a FOIA request.
For example, in United We Stand, the D.C. Circuit discussed an “exchange of
documents” between an agency covered by FOIA and Congress, and concluded that the agency’s
receipt and control of the documents rendered them agency records. United We Stand, 359 F.3d
at 599. The Court observed: “In Holy Spirit, the FOIA requestor sought disclosure of
documents that had been created by the CIA, sent to Congress, and then returned to CIA with no
indication that the agency should keep them confidential. Finding the documents to be agency
records, we explained that ‘even if these [requested] CIA-created records were once
congressional documents because [they were] generated in response to Congressional inquiries
and transferred to Congress, they subsequently lost their exemption as congressional records
when Congress failed to retain control over them.’” United We Stand, 359 F.3d at 599–600
(quoting Holy Spirit Ass’n for the Unification of World Christianity v. CIA, 636 F.2d 838, 843
(D.C. Cir. 1980), vacated in part on other grounds, 455 U.S. 997 (1982)). In other words, in
Holy Spirit, a document began as an agency record, was transferred to an entity not covered by
FOIA, and then regained its status as an agency record when it was transferred back to the
agency without any indication that the agency should keep it confidential. Likewise, in this case,
when Mr. Meadows sent the bulk of the binder to DOJ without a clear expression of continued
White House control, DOJ “obtained” the binder “in the legitimate conduct of its official duties,”
18
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
19 of 26Page 20 of
148
Tax Analysts, 492 U.S. at 144, rendering it an agency record subject to FOIA under black letter
law as discussed above.
III. The Binder’s Status as an Agency Record, and Resultant Processing under FOIA,
Raises No Constitutional Issues.
Plaintiff argues that he is entitled to summary judgment on his mandamus claim because,
in Plaintiff’s view, the treatment of the binder as an agency record “creates constitutional issues.”
Pl.’s Mot. at 17. Plaintiff is mistaken.
Plaintiff complains that the processing of the subject binder under FOIA raises
constitutional issues with respect to the Presidential Records Act and the FOIA based on
Presidents’ “historical[] exercise [of] complete dominion and control over their papers.” Pl.’s
Mot. at 18. As a threshold matter, Plaintiff relies on a historical description that predates the
Presidential Records Act, “which prospectively abolished private ownership of presidential
papers.” Nixon v. United States, 978 F.2d 1269, 1296–97 (D.C. Cir. 1992) (citing 44 U.S.C.
§ 2201 et seq. (1988)). To the contrary, under the Presidential Records Act of 1978, Congress
reserved to the United States “complete ownership, possession, and control of Presidential
records.” 44 U.S.C. § 2202.7
Additionally, the contours of Plaintiff’s concern are unclear. Plaintiff asserts that
“[n]either the Presidential Records Act nor the Freedom of Information Act could lawfully
authorize the Defendants to alter or destroy the Crossfire Hurricane binder,” Pl’s Mot. at 18, but
there is no question of alteration or destruction in this case. The only instance in which the
7
To the extent Plaintiff’s objection is to the United States’ ownership and control of
Presidential papers, the Supreme Court considered and rejected a separation of powers challenge
to the Presidential Records Act’s predecessor statute in Nixon v. Administrator of General
Services, 433 U.S. 425 (1977), and Congress later relied on the Supreme Court’s reasoning in
that case when enacting the Presidential Records Act. See H.R. Rep. No. 95-1487.
19
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
20 of 26Page 21 of
148
binder is alleged to have been “altered” was when Mr. Meadows himself determined to return
only “the bulk of the binder” rather than all of it, to DOJ.
Plaintiff also urges that as “a matter of Constitutional first principles” neither the
“Presidential Records Act nor the Freedom of Information Act could lawfully authorize the
Defendants . . . to keep the binder from Mr. Solomon,” citing a case that addressed the separation
of powers. See Pl’s Mot. at 18 (citing Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)).
Since Mr. Solomon represents the former head of the Executive Branch as his representative
under the Presidential Records Act, and the document as to which he seeks mandamus relief is a
federal record within an Executive Branch agency, it is difficult to see how separation of powers
concerns could arise.
In sum, Plaintiff identifies no constitutional considerations that might justify the Court’s
intervention in this case.
IV. The Binder’s Status as an Agency Record, and Concomitant Processing under
FOIA, Implies No “Absolute Veto” over a Former President’s Access to his Records.
Plaintiff also urges that the Court should grant mandamus relief in this case because
declining to intervene “would give the party in power a perverse de facto power to ignore the law
and an absolute veto over any former President’s access to his records.” Pl.’s Mot. at 17. But
that is not so.
It is undisputed that the former President’s own Chief of Staff returned a version of the
binder to DOJ, with an affirmative instruction to DOJ to exercise control by applying redactions
in its sole discretion. See Jan. 20, 2021, Mem., Pl.’s Mot., Ex. 4, ECF No. 16-6 at 1. Not only
did the former Chief of Staff not express an intent to retain confidentiality, but he instructed DOJ
to apply its own redactions and then make the binder public, with no accompanying instruction
that it remain a Presidential record or that it be sent to NARA. See id. Had White House staff
20
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
21 of 26Page 22 of
148
made an exact copy of the binder before removing pieces and returning it to DOJ, and had they
left it for NARA to take at the conclusion of the Administration, the former President’s
representative, appropriately cleared, would have been able to access the binder at NARA. Just
as the decision to return the binder to the Department—or not—rested with the former President
and his staff, any future President and that President’s staff will have the authority to determine
how to manage the records of his or her Administration in accordance with the PRA. Declining
to intervene in this case will not vest a subsequent Administration with any more or less control
over its own records.
V. Equitable Considerations Do Not Warrant Mandamus Relief.
Even if the threshold requirements for mandamus relief were satisfied, and they are not,
“the plaintiff must additionally show ‘compelling equitable grounds’ before [the Court] will
grant mandamus relief. Illinois v. Ferriero, 60 F.4th 704, 714 (D.C. Cir. 2023) (quoting In re
Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005)). Plaintiff proposes four.
First, Plaintiff asserts “the government has never denied a former President access to his
unclassified records.” Pl.’s Mot. at 19 (emphasis the Plaintiff’s). This argument assumes its
own conclusion, i.e., that the subject records are properly regarded as Presidential records rather
than agency records. For all the reasons discussed above, they are not. Moreover, there are
copies of documents from the binder which were retained at the White House and transferred to
NARA as Presidential records, and Plaintiff has not been categorically denied access to those
materials. Rather, he lacks the requisite security clearance to review those records. See Email
from Gary Stern to John Solomon (June 23, 2022), Pl.’s Mot., Ex. 2, ECF No. 16-4, at 13–14.
As NARA’s General Counsel explained to Plaintiff: the box in which those records were
retained contains “roughly 2700 undifferentiated pages of documents with varying types of
21
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
22 of 26Page 23 of
148
classification and declassification markings.” Id. Because NARA “could not be certain of the
classification status of any of the information in the box,” NARA is “obligated under Executive
Order 13526 to treat the contents of the box as classified at the TS/SCI level.” Id. at 14.8
Second, Plaintiff complains that the binder has not yet been made public notwithstanding
the former President’s declassification. See Pl.’s Mot. at 19–20. Plaintiff asserts that release of
the binder is “required by law.” Id. at 20. But the binder is being processed and released
consistent with FOIA, which is the applicable law in this setting; once the binder was received
by DOJ, it became an agency record and DOJ was required to process it under FOIA upon
receipt of a FOIA request seeking its disclosure. See 5 U.S.C. § 552. By insisting that the binder
should have been released without protecting information exempt from disclosure under FOIA,
Plaintiff is asking the Court to disregard FOIA, a federal statute, and to enforce the former
President’s January 19, 2021, Memorandum. See Mem., Declassification of Certain Materials
Related to the FBI’s Crossfire Hurricane Investigation, 86 FR 6843 (Jan. 19, 2021). But, by its
8
Plaintiff proffers, without citation to any underlying evidence in support, his position
that the binder “contained about 2,700 pages” prior to its transfer to DOJ. See Pl.’s Stmt. of
Undisputed Material Facts, ECF No. 16-2, ¶ 15 (citing Pl.’s Mot., Ex. 5, ¶ 9); compare Pl.’s
Mot., Ex. 5, ¶ 9 (referring to Plaintiff’s estimation of the thickness of the binder, but offering no
estimate of page count). Taken with the inadmissible hearsay that Plaintiff offers—conveying
purported remarks by Mr. Meadows that the redactions in those materials were finalized on
January 19, 2021, Pl.’s Stmt. of Undisputed Material Facts, ECF No. 16-2, ¶ 25, and that Mr.
Meadows had “placed a copy of the documents in the binder sent to the [DOJ] in a box for
transfer to the Archives as Presidential records,” id. ¶ 45—Plaintiff appears to be implying that
the box that NARA has includes full set of finalized, redacted records, duplicating the complete
binder. But Plaintiff is clearly mistaken. The version of the binder that Mr. Meadows
transferred, and which is being processed by the FBI, is less than 900 pages in length. See Email
from Gary Stern to John Solomon (July 12, 2022), Pl.’s Mot., Ex. 2, ECF No. 16-4, at 11. And
the box of 2700 pages that NARA received includes “instances of the same document being
redacted differently,” and some documents without “the required declassification marking.”
Email from Gary Stern to Kash Patel (July 14, 2022), Pl.’s Mot., Ex. 2, ECF No. 16-4, at 9. The
Court should therefore reject Plaintiff’s baseless and erroneous suggestion that the box of 2700
pages that NARA has is simply a finalized, redacted set duplicating the complete binder.
22
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
23 of 26Page 24 of
148
own terms, the memorandum forecloses such an argument. In section 2(c), it provides: “This
memorandum is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person.” Id. at
6843–44.
Third, Plaintiff reprises his contention that NARA has provided a “series of pretextual
justifications” for why he could not access the subject records, implying that the answers he has
received were internally inconsistent, and have changed over time. Pl.’s Mot. at 20. In response
to similar contentions in Plaintiff’s prior filing, Defendants explained that Plaintiff is
demonstrably wrong, and provided a detailed description of the correspondence to which
Plaintiff referred. See ECF No. 14 at 13–15. Evidently lacking an answer to that detailed
discussion, Plaintiff simply ignores it. See Pl.’s Mot. at 20.
Finally, Plaintiff concludes with allegations characterizing the Crossfire Hurricane
investigation and his view of what he terms the Defendants’ “deeply vested political interest.”
See id. at 20–22. It is difficult to understand how publishing records on a public website in
accordance with FOIA demonstrates a “deeply vested political interest.”
Moreover, in any event, Plaintiff’s contentions concerning what he characterizes as
equitable grounds supporting his request for mandamus relief are inapposite; as discussed below,
the requirements that there be a “clear and indisputable right to relief” and a “clear duty to act”
are jurisdictional. See Illinois, 60 F.4th at 714. Where, as here, Plaintiff cannot meet his burden
to establish those threshold elements, see infra Section VI, there is no jurisdiction to reach the
additional question of whether there are equitable grounds that could support the issuance of the
writ.
23
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
24 of 26Page 25 of
148
VI. In Light of the Undisputed Evidence, Plaintiff Cannot Meet the High Threshold
Required for Mandamus Relief.
Denial of Plaintiff’s motion for partial summary judgment, and entry of judgment for
Defendants on Plaintiff’s second claim, are warranted because of the extraordinary showing
required for a successful mandamus claim. “Few legal standards are more exacting than the
requirements for invoking mandamus jurisdiction under § 1361.” Illinois, 60 F.4th at 710. A
plaintiff seeking a writ of mandamus must demonstrate 1) a clear and indisputable right to the
particular relief sought against the federal official, 2) that the federal official is violating a clear
duty to act, and 3) that the plaintiff has no adequate alternate remedy.” Id. at 713–14 (citing Am.
Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016)). The Court “can” and “often
do[es]” “analyze the clear right to relief and clear duty to act requirements for mandamus
concurrently.” Id. at 715. The D.C. Circuit has described both the “clear and indisputable right
to relief” and “clear duty to act” standards as “stringent,” noting “we will deny mandamus even
if a petitioner’s argument, though ‘pack[ing] substantial force,’ is not clearly mandated by
statutory authority or case law.” Id. at 714–15 (quoting In re Al Baluchi, 952 F.3d 363, 369
(D.C. Cir. 2020) (internal quotations omitted)).
The D.C. Circuit’s high standard is insurmountable in this case. Plaintiff asks this Court
to recharacterize an agency record as a Presidential record, and to order its transfer from a
federal agency to NARA. Any right to relief or duty by Defendants to act—in this case, for
NARA to provide Plaintiff access to the record under the PRA, see Compl., ECF No. 1, ¶¶ 38,
39—depends wholly on Plaintiff’s assertion that the record at issue is properly regarded as a
Presidential record under the Presidential Records Act. Yet the legal theory that Plaintiff
advances in support of that argument—inverted application of a test the D.C. Circuit developed
to ascertain whether a record is properly subject to FOIA’s requirements—has, to Defendants’
24
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
25 of 26Page 26 of
148
knowledge, never been applied by any court in the manner that Plaintiff proposes. See supra.
That, alone, forecloses mandamus relief. See Illinois, 60 F.4th at 710 (quoting Rep. of Venezuela
v. Philip Morris, Inc., 287 F.3d 192, 199 (D.C. Cir. 2002), as holding that petitioners did “not
come close” to showing clear and indisputable right because they “identif[ied] no precedent of
this court or of the Supreme Court” on point).
Moreover, as discussed above, because DOJ obtained the record at issue “in the
legitimate conduct of its official duties,” Tax Analysts, 492 U.S. at 144, that record plainly
satisfies all the elements of the definition of an agency record, excluding it from the statutory
definition of “Presidential record” under the Presidential Records Act, see 44 U.S.C.
§ 2201(2)(B). See supra at 6–16. For this reason, too, Plaintiff cannot demonstrate any right to
relief or duty to act in this case, much less the “clear” and “indisputable” showing necessary to
establish mandamus jurisdiction.
The D.C. Circuit has cautioned that “[t]he grounds on which a district court may grant
mandamus relief are narrow, and the demands are austere.” Illinois, 60 F.4th at 710. For all the
reasons explained herein, Plaintiff misses the mark, and by a country mile.
CONCLUSION
For all the reasons explained herein, the Court should grant Defendants’ cross-motion for
summary judgment and deny the Plaintiff’s motion for partial summary judgment.
Dated: September 7, 2023 Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
ELIZABETH J. SHAPIRO (D.C. Bar No. 418925)

Deputy Director
Federal Programs Branch
25
DocumentDocument
327-1 Entered
19-1 on
Filed
FLSD
09/07/23
DocketPage
02/22/2024
26 of 26Page 27 of
148
/s/_Julia A. Heiman____________
JULIA A. HEIMAN (D.C. Bar No. 986228)
Federal Programs Branch
U.S. Department of Justice, Civil Division
1100 L Street, N.W.
Washington, DC 20005
Tel. (202) 616-8480 / Fax (202) 616-8470
[email protected]
Attorneys for Defendants
26
148
EXHIBIT 2
Case 1:10-cv-01834-ABJ
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
1 of 45 Page 29 of
148
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC., )

)
Plaintiff, )
)
v. ) Civil Action No: 1:10-cv-01834 (PLF)
)
NATIONAL ARCHIVES AND )
RECORDS ADMINISTRATION, )
)
Defendant. )
)
DEFENDANT’S MEMORANDUM IN SUPPORT OF ITS

MOTION TO DISMISS
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
2 of 45 Page 30 of
148
TABLE OF CONTENTS
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Statutory Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Historical Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Presidential Records Act of 1978.. . . . . . . . . . . . . . . . . . . . . 6
II. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I. PLAINTIFF LACKS STANDING BECAUSE IT HAS NOT ALLEGED

A REDRESSABLE INJURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. The Court Cannot Compel NARA to Assume Custody and

Control of the Audiotapes, Because the PRA Does Not Mandate
It.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. The Court Cannot Compel NARA to Seize the Audiotapes,

Because Any Remedies Available Under the PRA Are
Committed Solely to NARA’s Discretion... . . . . . . . . . . . . . . . . 15
II. THE PRA PRECLUDES JUDICIAL REVIEW OF PLAINTIFF’S

CLAIM UNDER THE APA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. The D.C. Circuit’s Armstrong Decisions Have Already

Determined That Plaintiff’s APA Claim is Precluded by the
PRA... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-ii-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
3 of 45 Page 31 of
148
1. The Armstrong Decisions.. . . . . . . . . . . . . . . . . . . . . . . . 19
2. Plaintiff’s Lawsuit Here is Precluded By the Armstrong

Decisions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. The PRA Precludes a Private Litigant From Challenging the

President’s Classification of a Particular Record as Personal.. 25
III. PLAINTIFF’S LAWSUIT IS PREMATURE BECAUSE NARA HAS

NOT UNDERTAKEN A FINAL AGENCY ACTION.. . . . . . . . . . . . . 30
IV. PLAINTIFF HAS FAILED TO STATE A CLAIM BECAUSE EVEN

TAKING ALL ALLEGED FACTS AS TRUE, NARA DID NOT ACT
ARBITRARILY OR CAPRICIOUSLY IN UPHOLDING PRESIDENT
CLINTON’S CLASSIFICATION OF THE AUDIOTAPES AS
PERSONAL RECORDS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
-iii-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
4 of 45 Page 32 of
148
TABLE OF AUTHORITIES
CASES
Am. Fed'n of Gov't Employees, AFL-CIO v. O'Connor,

747 F.2d 748 (D.C. Cir. 1984). ......................................................................... 32
Armstrong v. Bush [Armstrong I],

924 F.2d 282 (1991).......................................... 2, 4, 6, 14, 15, 18, 19, 20, 23, 24
Armstrong v. Exec. Office of the President [Armstrong II],

1 F.3d 1274 (D.C. Cir. 1993). ............................................................... 21, 22, 24
Armstrong v. Exec. Office of the President [Armstrong III],

90 F.3d 553 (D.C. Cir. 1996). ........................................................................... 22
Armstrong v. Bush,
721 F. Supp. 343 (D.D.C. 1989). ................................................ 6, 20, 22, 23, 25
Armstrong v. Bush,
139 F.R.D. 547 (D.D.C. 1991). ................................................................... 20, 21
Baltimore Gas & Elec. Co. v. FERC,

252 F.3d 456 (D.C. Cir. 2001). ......................................................................... 16
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007). ............................................................................. 10, 33, 37
Bennett v. Spear,
520 U.S. 154 (1996). ......................................................................................... 31
Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984). ................................................................................... 25, 30
Bowen v. Massachusetts,
487 U.S. 879 (1988). ......................................................................................... 31
CREW v. Cheney,
593 F. Supp. 2d 194 (D.D.C. 2009). ........................................................... 12, 24
CREW v. Office of Admin.,

559 F. Supp. 2d 9 (D.D.C. 2008). ..................................................................... 17
-iv-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
5 of 45 Page 33 of
148
CREW v. Dep't of Homeland Sec.,

527 F. Supp. 2d 101 (D.D.C. 2007). ............................................................. 3, 24
Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971). ......................................................................................... 33
Claybrook v. Slater,
111 F.3d 904 (D.C. Cir. 1997). ......................................................................... 16
DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006). ......................................................................................... 10
EEOC v. St. Francis Xavier Parochial Sch.,

117 F.3d 621 (D.C. Cir. 1997). ......................................................................... 10
FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990). ......................................................................................... 11
Franklin v. Massachusetts,
505 U.S. 788 (1992). ......................................................................................... 31
Heckler v. Chaney,
470 U.S. 821 (1985). ............................................................................. 15, 16, 17
Kenney v. Dep't of Justice,

603 F. Supp. 2d 184 (D.D.C. 2009). ................................................................. 31
Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980). ................................................................................... 14, 32
Lujan v. Defenders of Wildlife,

504 U.S. 555 (1991). ......................................................................................... 10
Massachusetts v. EPA,
549 U.S. 497 (2007). ......................................................................................... 18
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983). ........................................................................................... 34
Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010). ................................................................ 11, 18
-v-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
6 of 45 Page 34 of
148
Nixon v. Adm'r of GSA,

433 U.S. 425 (1977). ............................................................................... 5, 26, 27
Nixon v. Freeman,
670 F.2d 346 (D.C. Cir. 1982). ....................................................................... 5, 6
Nixon v. United States,

978 F.2d 1269 (D.C. Cir. 1992). ......................................................................... 5
Norton v. S. Utah Wilderness Alliance,

542 U.S. 55 (2004). ............................................................................... 12, 13, 14
Pub. Citizen v. Carlin,

2 F. Supp. 2d 1 (D.D.C. 1997). ......................................................................... 24
Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm'n,

324 F.3d 726 (D.C. Cir. 2003). ......................................................................... 32
Rempfer v. Sharfstein,
583 F.3d 860 (D.C. Cir. 2009). ......................................................................... 11
Russello v. United States,

464 U.S. 16 (1983). ........................................................................................... 26
Sec'y of Labor v. Twentymile Coal Co.,

456 F.3d 151 (D.C. Cir. 2006). ......................................................................... 16
Swift v. United States,

318 F.3d 250 (D.C. Cir. 2003). ......................................................................... 16
Switchmen's Union of North America v. Nat'l Mediation Bd.,

320 U.S. 297 (1943). ......................................................................................... 13
United States v. McElvenny,

No. 02-3027, 2003 WL. 1741422 (S.D.N.Y. April 1, 2003). ............................ 14
United States v. Mead Corp.,

533 U.S. 218 (2001). ......................................................................................... 37
STATUTES
5 U.S.C. § 552. ............................................................................................................... 9
-vi-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
7 of 45 Page 35 of
148
5 U.S.C. § 701. ................................................................................................... 2, 15, 18
5 U.S.C. § 704 . ............................................................................................................ 31
5 U.S.C. § 706. ............................................................................................................. 12
28 U.S.C. § 516. ........................................................................................................... 14
44 U.S.C. § 2111. ..................................................................................................... 5, 26
44 U.S.C. § 2112. ............................................................................... 8, 9, 13, 16, 25, 30
44 U.S.C. §§ 2201-2207. ............................................................................................ 1, 6
44 U.S.C. § 2201. ......................................................................... 1, 7, 22, 34, 35, 36, 37
44 U.S.C. § 2203 . ............................................................................................... 6, 7, 13
44 U.S.C. § 2204. ............................................................................................. 25, 27, 28
44 U.S.C. § 2904. ..................................................................................................... 4, 17
44 U.S.C. § 2905. ..................................................................................................... 4, 13
44 U.S.C. § 3101. ........................................................................................................... 4
44 U.S.C. § 3106. ..................................................................................................... 4, 13
44 U.S.C. §§ 3315-3324. ................................................................................................ 5
MISCELLANEOUS
H.R. REP. NO . 95-1487, reprinted in 1978 U.S.C.C.A.N. 5732. ................................. 27
To Amend the Freedom of Information Act to Insure Public Access to the Official
Papers of the President, and for Other Purposes: Hearings Before the Subcomm. on
Gov’t Information and Individual Rights of the H. Comm. on Gov’t Operations, 95th
Cong. (1978)........................................................................................................... 28, 29
To Amend Title 44 to Insure the Preservation and Public Access to the Official
Records of the President, and for Other Purposes: Hearing on S. 3494 Before the S.
Comm. on Gov’t Affairs, 95th Cong. (1978)................................................................ 29
-vii-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
8 of 45 Page 36 of
148
INTRODUCTION
Plaintiff Judicial Watch, Inc., purporting to enforce the Presidential Records Act
of 1978 (PRA), 44 U.S.C. §§ 2201-2207, requests that this Court order the National
Archives and Records Administration (NARA) to physically seize the personal audio
diary of former President Clinton. This extraordinary request is unfounded, contrary
to the PRA’s express terms, and contrary to traditional principles of administrative
law. Even taking all factual allegations in the complaint as true, the requested audio
diary is a “personal record” as defined by the PRA, 44 U.S.C. § 2201(3)(A), and
therefore is not subject to any governmental control. But even assuming for purposes
of this motion that the audio diary in question could be considered a presidential and
not personal record, NARA has complete discretion as to when to pursue the recovery
of presidential records not in its possession. And because NARA has this absolute
discretion over when to initiate enforcement proceedings, courts cannot order NARA
to seize particular records when NARA has exercised its discretion not to do so.
This Court’s inability to issue such an order is fatal to Plaintiff’s lawsuit.
Plaintiff’s only alleged injury is a lack of access to President Clinton’s audio diary. See
Compl. at ¶21. To remedy that injury, Plaintiff asks this Court, in part, to “order
[NARA] to assume custody and control of” President Clinton’s audiotapes. Compl. at 5.
But this Court cannot provide such a remedy, and therefore is unable to redress
Plaintiff’s injury. Plaintiff’s complaint, consequently, should be dismissed for lack of
standing.
-1-
Document 327-1
Document
Entered
6-1 on
Filed
FLSD
01/03/11
DocketPage
02/22/2024
9 of 45 Page 37 of
148
The above analysis assumes, moreover, that Plaintiff even has a cognizable
cause of action under the Administrative Procedure Act (APA)—which it does not. The
PRA is a statute that “preclude[s] judicial review” under the APA, 5 U.S.C. § 701(a)(1),
as the D.C. Circuit’s decisions in the Armstrong cases confirm. Indeed, the D.C. Circuit
already has rejected attempts by private litigants to obtain “judicial review of the
President’s general compliance with the PRA,” which is precisely what Plaintiff seeks
to accomplish here. Armstrong v. Bush, 924 F.2d 282, 291 (1991) [hereinafter
Armstrong I]. Moreover, even apart from the Armstrong decisions, the PRA’s text,
structure, purpose, and history all confirm that the PRA precludes judicial review for
the particular decision that Plaintiff is challenging here—NARA’s determination that
President Clinton properly classified particular records as “personal” rather than
“presidential.”
Yet another threshold issue requires that Plaintiff’s lawsuit be dismissed:
Plaintiff’s purported APA challenge fails to identify any final agency action. Prior to
this lawsuit, Plaintiff pursued President Clinton’s audiotapes under the Freedom of
Information Act (FOIA). NARA rejected Plaintiff’s FOIA request on the ground that
NARA did not have custody over President Clinton’s tapes. NARA then went on to
state that, based on the facts provided by Plaintiff, the audiotapes were President
Clinton’s personal records, and thus would not be subject to FOIA even if they were in
NARA’s custody. Plaintiff now seizes on this language from NARA’s letter and
characterizes it as a final agency determination regarding the PRA claim presented
here. That argument is untenable; NARA’s discussion of the audiotapes was solely in
-2-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
10 of 45 Page 38 of
148
the context of a FOIA appeal, and did not have any legal consequences under the PRA.
Thus, there is no final agency action for this Court to review with respect to Plaintiff’s
PRA claim.
Finally, even were the Court to conclude that judicial review is available and
that NARA made a final determination as to Plaintiff’s PRA claim, the Court should
still dismiss Plaintiff’s complaint for failure to state a claim upon which relief can be
granted. Even taking all of Plaintiff’s factual allegations as true, NARA correctly
upheld President Clinton’s classification of the audiotapes as personal records. NARA
considered all of the relevant factors and properly explained its decision, which amply
demonstrates that NARA did not act arbitrarily or capriciously. NARA’s significant
institutional expertise with respect to presidential records also entitles its decision to
a measure of deference, which Plaintiff’s allegations do not overcome. Thus, Plaintiff’s
complaint should be dismissed.
BACKGROUND
I. Statutory Framework
A. Historical Context
Although Plaintiff’s lawsuit is based solely on the Presidential Records Act, two
of the PRA’s predecessor statutes are also important to this case.
First, the Federal Records Act (FRA) is “a series of statutes that collectively
govern the creation, management, and disposal of records by federal agencies.”
Citizens for Responsibility & Ethics in Washington (CREW) v. Dep’t of Homeland Sec.,
527 F. Supp. 2d 101, 108 (D.D.C. 2007); see 44 U.S.C. §§ 2101-18, 2901-09, 3101-07,
-3-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
11 of 45 Page 39 of
148
3301-24. Under the FRA, “[t]he head of each Federal agency shall make and preserve
records containing adequate and proper documentation of the organization, functions,
policies, decisions, procedures, and essential transactions of the agency[.]” 44 U.S.C.
§ 3101.
The Archivist of the United States—who is the head of NARA—plays an
important role in administering the FRA. Specifically, the Archivist “shall provide
guidance and assistance to Federal agencies,” id. § 2904(a), and “may inspect the
records or the records management practices and programs of any Federal agency,”
id. § 2906(a)(1). Additionally, an agency head may not dispose of any records without
the approval of the Archivist. See id. §§ 3303a, 3314.
The FRA also creates an administrative enforcement scheme, by which the
Archivist and an agency head must notify each other if one of them learns “of any
actual, impending, or threatened unlawful removal, defacing, alteration, or destruction
of records in the custody of the agency[.]” Id. §§ 2905(a), 3106. The agency head, with
the assistance of the Archivist, must then “request that the Attorney General initiate
an action to prevent the destruction of documents” or to recover unlawfully removed
documents. Armstrong I, 924 F.2d at 294. If the agency head refuses to make that
request, then the Archivist must “notify Congress and independently request that the
Attorney General initiate an action[.]” Id.
This administrative enforcement scheme is exclusive. Thus, courts may not
order the recovery or retrieval of records that may have been removed or destroyed.
See id. (“Because it would clearly contravene this system of administrative enforcement
-4-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
12 of 45 Page 40 of
148
to authorize private litigants to invoke federal courts to prevent an agency official from
improperly destroying or removing records, we hold that the FRA precludes judicial
review of such actions.”).
The second predecessor statute to the PRA is the Presidential Recordings and
Materials Preservation Act of 1974 (PRMPA), see note following 44 U.S.C. § 2111.
Prior to the PRMPA, presidential records were “treated as the President’s private
property.” Nixon v. United States, 978 F.2d 1269, 1284 (D.C. Cir. 1992). In 1974,
however, Congress became concerned that former President Nixon might destroy
records relating to the Watergate investigation. See id. at 1271. Accordingly, Congress
passed the PRMPA, which instructed the General Services Administration (GSA)—at
the time the parent agency of the National Archives—to seize President Nixon’s
records, and to promulgate regulations providing for public access to those records. See
note following 44 U.S.C. § 2111 at §§ 101, 104. President Nixon challenged the
PRMPA’s constitutionality, but the Supreme Court upheld the PRMPA’s facial validity,
and the D.C. Circuit upheld the PRMPA’s implementing regulations. See Nixon v.
Adm’r of GSA, 433 U.S. 425 (1977); Nixon v. Freeman, 670 F.2d 346 (D.C. Cir. 1982).
The PRMPA, by its terms, applied only to President Nixon’s records. But Title II
of the PRMPA created a “National Study Commission on Records and Documents of
Federal Officials” to make recommendations to Congress and the President on, among
other things, whether or not the records of Presidents should be subject to federal law.
See generally 44 U.S.C. §§ 3315-3324. Accordingly, “[t]he controversy over the Nixon
materials prompted subsequent congressional reconsideration of the traditional
-5-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
13 of 45 Page 41 of
148
disposition and preservation of Presidential materials. That reconsideration resulted
in the passage of the Presidential Records Act of 1978[.]” Nixon v. Freeman, 670 F.2d
at 349 n.2. When drafting the PRA, therefore, Congress was “acutely aware” of the
PRMPA and the litigation surrounding it. Armstrong v. Bush, 721 F. Supp. 343, 350
(D.D.C. 1989), overruled on other grounds by Armstrong I, 924 F.2d at 282.
B. The Presidential Records Act of 1978.
The Presidential Records Act of 1978, 44 U.S.C. §§ 2201-2207, commonly known
as the PRA, creates a scheme governing the preservation and disclosure of presidential
records, which applies to all Presidents starting with President Reagan. During a
President’s time in office, the PRA directs the President “to take all such steps as may
be necessary to assure that” presidential records are created and maintained pursuant
to the PRA. Id. § 2203(a).
Unlike the FRA, however, the PRA contemplates a limited role for the Archivist
during a President’s time in office. Indeed, “the PRA accords the President virtually
complete control over his records during his term of office. Although the President
must notify the Archivist before disposing of records and the Archivist may inform
Congress of the President’s desire to dispose of the records, neither the Archivist nor
the Congress has the authority to veto the President’s disposal decision.” Armstrong I,
924 F.2d at 290.
Once a President’s time in office has concluded, the Archivist receives the
presidential records, and deposits them in a presidential archival depository, commonly
-6-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
14 of 45 Page 42 of
148
referred to as a presidential library. See 44 U.S.C. § 2203(f). The Library must then
begin processing and organizing the records to provide for public access. Id.
Most presidential records become available to the public beginning five years
after the President leaves office, either through FOIA requests or when the Library has
processed the records. See id. § 2204(b)(2) & (c)(1). For certain categories of
information, however, the President, prior to leaving office, may “specify durations, not
to exceed 12 years, for which access shall be restricted[.]” Id. § 2204(a). During that
period, the Archivist, after consulting with the former President, determines whether
a particular presidential record falls within one of the restricted categories. Id.
§ 2204(b)(3). The Archivist’s decision is not subject to judicial review, unless “the
former President assert[s] that a determination made by the Archivist violates the
former President’s rights or privileges.” Id. § 2204(e).
Importantly to this case, the PRA’s preservation and disclosure provisions apply
only to presidential records—not personal records. In its definition of “presidential
records,” the PRA specifically excludes the President’s “personal records.” See id.
§ 2201(2)(B) (“The term ‘Presidential records’ . . . does not include any documentary
materials that are . . . personal records[.]”). And the term “personal records” is in turn
defined as including, among other things, “diaries, journals, or other personal notes
serving as the functional equivalent of a diary or journal which are not prepared or
utilized for, or circulated or communicated in the course of, transacting Government
business.” Id. § 2201(3)(A). A former President’s diary or its functional equivalent,
therefore, is specifically excluded from the definition of a presidential record.
-7-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
15 of 45 Page 43 of
148
The PRA requires the President, “to the extent practicable,” to “categorize[]”
materials as presidential records or personal records “upon their creation or receipt”
and to “file[] [them] separately.” Id. § 2203(b). It then directs the Archivist of the
United States to “assume responsibility for the custody, control, and preservation of,
and access to, the Presidential records of that President” upon the conclusion of a
President’s term in office. Id. § 2203(f)(1). The PRA contains no provision compelling
the Archivist to assume responsibility for, or to review, the materials that the
President “categorized” and “filed separately” as personal records.
Finally, with respect to enforcement, the PRA grants the Archivist the authority
to invoke the same enforcement mechanism embodied in the FRA:
When the Archivist considers it to be in the public interest, he may

exercise, with respect to papers, documents, or other historical materials
deposited under this section, or otherwise, in a Presidential archival
depository, all the functions and responsibilities otherwise vested in him
pertaining to Federal records or other documentary materials in his
custody or under his control.
44 U.S.C. § 2112(c) (emphasis added). Although that language was originally passed
as part of the Presidential Libraries Act of 1955—yet another predecessor statute to
the PRA—the PRA amended § 2112(c) to specifically apply to presidential records as
well. See id. (stating that “[o]nly the first two sentences of this subsection,” which
includes the sentence quoted above, “shall apply to Presidential records”).
II. Factual Background
Plaintiff Judicial Watch alleges that “[d]uring the course of his presidency,
President Clinton enlisted historian Taylor Branch to assist President Clinton in
-8-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
16 of 45 Page 44 of
148
creating an oral history of his eight years in office.” Compl. at ¶8. That oral history,
Plaintiff says, was recorded on a number of audiotapes. Id. at ¶9.
On October 7, 2009, Plaintiff sent a request to the Clinton Presidential Library,
pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking copies of
the Taylor Branch audiotapes. See Compl. at ¶12. The Clinton Presidential Library
denied that request. Id. at ¶13.
On November 2, 2009, Plaintiff appealed that denial to NARA. Id. at ¶14. On
March 16, 2010, NARA, through Deputy Archivist Adrienne C. Thomas, rejected
Plaintiff’s FOIA appeal. Id. at ¶15. Ms. Thomas explained that the requested audio
tapes “are not and have never been physically located at the Clinton Library or at any
other NARA facility[.]” See Ex. 4 at 2 (Letter from Adrienne C. Thomas to Michael
Bekesha). That was the end of Ms. Thomas’s FOIA analysis, though she then went on
to explain why, based “[o]n the facts made available to me, I do not believe the
materials in question fall within the ambit of the PRA.” Specifically, Ms. Thomas
stated that she was “of the opinion that the audio tapes . . . are personal records of
President Clinton[.]” Id.
Plaintiff thereafter filed this lawsuit, bringing one claim under the APA, 5
U.S.C. § 701, et seq. Plaintiff’s claim asserts that NARA arbitrarily and capriciously
labeled the audio tapes personal records, Compl. at ¶20, and that classifying the tapes
as personal is “irreparably harm[ing]” Plaintiff by “prevent[ing] Plaintiff from gaining
access to the audiotapes through FOIA.” Compl. at ¶21. Thus, Plaintiff asks this
Court for a number of remedies: to declare NARA’s classification of the records as
-9-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
17 of 45 Page 45 of
148
personal to be arbitrary and capricious; to declare that the tapes are presidential
records; to order NARA to assume custody and control of the tapes; to order NARA to
deposit the tapes in the Clinton Presidential Library; and to order NARA to process the
tapes under FOIA. Compl. at 5.
III. Standard of Review
Defendant NARA moves to dismiss the complaint for lack of subject-matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff bears
the burden of showing subject-matter jurisdiction. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1991). Indeed, it is “presume[d] that federal courts lack jurisdiction
unless the contrary appears affirmatively from the record.” DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n.3 (2006) (internal quotation marks omitted).
NARA also moves to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In
evaluating the sufficiency of the complaint, the Court may consider “the facts alleged
in the complaint, any documents either attached to or incorporated in the complaint
and matters of which [the court] may take judicial notice.” EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A plaintiff’s “[f]actual allegations
must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Although a court must accept all factual
allegations as true, the court is “not bound to accept as true a legal conclusion couched
as a factual allegation[.]” Id. (internal quotation marks omitted).
-10-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
18 of 45 Page 46 of
148
ARGUMENT
I. PLAINTIFF LACKS STANDING BECAUSE IT HAS NOT ALLEGED A

REDRESSABLE INJURY.
For Plaintiff to establish constitutional standing, a jurisdictional requirement,
it “must show an injury in fact that is fairly traceable to the challenged conduct and
that will likely be redressed by a favorable decision on the merits.” Rempfer v.
Sharfstein, 583 F.3d 860, 868 (D.C. Cir. 2009). A plaintiff’s articulation of its injury
is limited to the allegations in the complaint. See FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 231 (1990) (“[P]etitioners in this case must allege facts essential to show
jurisdiction. If they fail to make the necessary allegations, they have no standing.”
(internal quotations and alterations omitted)).
Here, Plaintiff’s sole articulation of its injury is that NARA is “prevent[ing]
Plaintiff from gaining access to the audiotapes through FOIA.” Compl. at ¶21.
Plaintiff’s own complaint admits, however, that NARA does not currently possess the
audiotapes. See id. at ¶16 (“On information and belief, President Clinton unlawfully
retained the requested audiotapes after leaving office.”).
To redress Plaintiff’s injury, then, this Court would have to compel NARA to
seize the audiotapes from President Clinton—and indeed, that is precisely the relief
that Plaintiff seeks. See id. at 5 (requesting the Court to “order Defendant to assume
custody and control of the requested records”). That relief is unavailable, however, and
thus Plaintiff’s injury is not redressable by this Court. See Newdow v. Roberts, 603
-11-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
19 of 45 Page 47 of
148
F.3d 1002, 1013 (D.C. Cir. 2010) (denying standing because “[t]he only apparent
avenue of redress for plaintiffs’ claimed injuries . . . is unavailable”).
A. The Court Cannot Compel NARA to Assume Custody and Control

of the Audiotapes, Because the PRA Does Not Mandate It.
Plaintiff’s requested relief here is quite remarkable. Plaintiff seeks to compel
NARA to seize materials from a former President of the United States, even though the
former President presumably considers those materials to be personal records.
Plaintiff makes that request, moreover, without identifying any clear basis for it. That
lack of specificity is not by accident: No provision in the PRA requires NARA to
“assume custody and control” of President Clinton’s audiotapes.
Plaintiff’s lawsuit is actually one under the APA, purporting to enforce the terms
of the PRA. This APA lawsuit was Plaintiff’s only option, because the PRA itself does
not provide Plaintiff with a private right of action. See CREW v. Cheney, 593
F. Supp. 2d 194, 218 (D.D.C. 2009). Plaintiff does not specify which provision of the
APA is the basis for its requested relief, but for its injury to be redressed, it would have
to proceed under 5 U.S.C. § 706(1), which allows a court “to compel agency action
unlawfully withheld.”
For Plaintiff to obtain relief under that provision, however, Plaintiff must
“assert[] that an agency failed to take a discrete agency action that it is required to
take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) [hereinafter
SUWA] (emphasis in original). As the Court explained in SUWA, prior to the APA
judicial review of agency action was achieved mostly through writs of mandamus. The
-12-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
20 of 45 Page 48 of
148
APA “carried forward [that] traditional practice[,]” and thus the APA—like
mandamus—is “limited to enforcement of a ‘specific, unequivocal command[.]” Id. at
63. For Plaintiff to succeed on its APA claim, then, it must show that the PRA contains
a “specific, unequivocal command” directing NARA to seize all presidential records.
Plaintiff cannot make that showing. The PRA does not require NARA to
physically seize presidential records, but instead relies upon a much more limited (and
sensible) administrative enforcement scheme. As discussed above, the PRA allows the
Archivist of the United States, “[w]hen the Archivist considers it to be in the public
interest,” to invoke the FRA’s enforcement scheme. 44 U.S.C. § 2112(c). And under the
FRA’s scheme, “the Archivist shall request the Attorney General to initiate” an action
for the recovery of missing records, and “shall notify the Congress when such a request
has been made.” See id. §§ 2905(a), 3106.
This administrative enforcement scheme is the exclusive method by which
NARA can recover records under the PRA.1 As the Supreme Court has long held, “it
is for Congress to determine how the rights which it creates shall be enforced. . . .
[T]he specification of one remedy normally excludes another.” Switchmen’s Union of
1
44 U.S.C. § 2203(f) does not require NARA to physically seize any records, presidential
or personal. That subsection requires the Archivist, when a President leaves office, to “assume
responsibility for the custody, control, and preservation of, and access to, the Presidential
records of that President,” to deposit them in a federal facility, and to make them available to
the public. That subsection presupposes the existence of a departing President’s collection of
presidential records—“the Presidential records of that President”—and requires the Archivist
to assume responsibility for that specific collection. In drafting this subsection, Congress
surely knew that, just a few sentences earlier, it had directed the President to file personal
records separately from this collection of presidential records. Id. § 2203(b). Tellingly,
§ 2203(f) does not reference these personal records or require the Archivist to take any action
with respect to them.
-13-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
21 of 45 Page 49 of
148
North America v. Nat’l Mediation Bd., 320 U.S. 297, 301 (1943). Indeed, the D.C.
Circuit already has concluded that the FRA’s enforcement scheme is exclusive. See
Armstrong I, 924 F.2d at 294; see also Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 149 (1980) (“Congress expressly recognized the need for devising
adequate statutory safeguards against the unauthorized removal of agency records,
and opted in favor of a system of administrative standards and enforcement.”).
Moreover, NARA—the agency charged with administering this provision—treats this
enforcement mechanism as exclusive for both the PRA and the FRA. And, indeed,
NARA previously has invoked this scheme to recover missing presidential materials.
See, e.g., United States v. McElvenny, No. 02-3027, 2003 WL 1741422 (S.D.N.Y. April 1,
2003) (Department of Justice lawsuit in the form of a civil replevin action, seeking
recovery of a map of Cuba annotated by President Kennedy during the Cuban Missile
Crisis).
Because the PRA relies upon this exclusive enforcement scheme—requesting the
Attorney General to institute an action for the recovery of missing records—the PRA
cannot also impose a duty on NARA to seize missing records.2 Without an unequivocal
duty for NARA to seize presidential records, this Court cannot order NARA to take
such action. See SUWA, 542 U.S. at 63 (“[T]he only agency action that can be
compelled under the APA is action legally required.” (emphasis in original)). Plaintiff’s
2
Congress’s administrative enforcement scheme, moreover, makes good sense. The
permanent recovery of a presidential record could involve some sort of judicial proceeding,
which would require the Attorney General’s authorization. See 28 U.S.C. § 516 (stating that
all litigation on behalf of the United States and its agencies “is reserved to officers of the
Department of Justice, under the direction of the Attorney General”).
-14-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
22 of 45 Page 50 of
148
requested relief is unavailable, and therefore Plaintiff has not alleged a redressable
injury.
B. The Court Cannot Compel NARA to Seize the Audiotapes,

Because Any Remedies Available Under the PRA Are Committed
Solely to NARA’s Discretion.
Even assuming that the PRA places a duty on NARA to seize presidential
records and that the audiotapes here are presidential records, this Court still cannot
order such relief. Plaintiff is essentially asking the Court to order NARA to “enforce”
the PRA against an alleged violator. Again, this request is rather remarkable. For one
thing, the alleged violator here is a former President of the United States. When
enacting the PRA, Congress was keenly aware of “the stark separation of powers
questions implicated by legislation regulating the conduct of the President’s daily
operations.” Armstrong I, 924 F.2d at 292. It is untenable to think that Congress,
mindful of such considerations, would nevertheless authorize a private litigant to
compel the seizure and examination of a former President’s personal records. Such
relief would, as Congress was well aware, raise serious separation of powers and
privacy concerns.
But Plaintiff’s requested relief suffers from a more straightforward defect as
well. Under traditional administrative-law principles, this Court cannot review
NARA’s decision not to enforce the PRA by seeking recovery of specific materials.
Under the APA, courts cannot review “agency action [that] is committed to agency
discretion by law[.]” 5 U.S.C. § 701(a)(2). The Supreme Court interpreted this
language in Heckler v. Chaney, 470 U.S. 821 (1985), and concluded that “an agency’s
-15-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
23 of 45 Page 51 of
148
decision not to prosecute or enforce, whether through civil or criminal process, is a
decision generally committed to an agency’s absolute discretion.” Id. at 831. To
overcome that presumption of non-reviewability, a plaintiff must show that “the
substantive statute has provided guidelines for the agency to follow in exercising its
enforcement powers.” Id. at 833.
Here, Plaintiff cannot point to any guidelines in the PRA instructing NARA
when to seize missing records. As the D.C. Circuit has repeatedly held, this silence is
conclusive. See, e.g., Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 157-58 (D.C.
Cir. 2006) (holding that judicial review is unavailable because “the statute is ‘utterly
silent on the manner in which the [agency] is to proceed against a particular
transgressor’” (quoting Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 456, 461 (D.C.
Cir. 2001))); Swift v. United States, 318 F.3d 250, 253 (D.C. Cir. 2003) (stating that
judicial review is unavailable because the statute “neither sets substantive priorities
nor circumscribes the government’s power to discriminate among issues or cases it will
pursue”).
Nor can Plaintiff look outside the PRA for such criteria. The statutory provision
authorizing NARA to utilize the FRA enforcement mechanism vests the Archivist with
complete discretion for determining when to utilize that mechanism. See 44 U.S.C.
§ 2112(c) (“When the Archivist considers it to be in the public interest, he may . . . .”);
see also Claybrook v. Slater, 111 F.3d 904, 908 (D.C. Cir. 1997) (holding that nearly
identical language—“whenever [the agency representative] determines it to be in the
public interest”—precludes review because that determination is “committed to agency
-16-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
24 of 45 Page 52 of
148
discretion”). Thus, the text of the statute makes clear that the Archivist’s decision
whether to initiate enforcement proceedings is unreviewable.
Moreover, the rationale underlying Chaney supports application of its
presumption here. In Chaney, the Court noted that “an agency decision not to enforce
often involves a complicated balancing of a number of factors which are peculiarly
within its expertise.” 470 U.S. at 831. An agency, for example, “must not only assess
whether a violation has occurred, but whether agency resources are best spent on this
violation or another, . . . whether the particular enforcement action requested best fits
the agency’s overall policies, and, indeed, whether the agency has enough resources to
undertake the action at all.” Id.
Here, NARA is a relatively small agency with limited resources. And yet NARA
is tasked with an extremely difficult mission: For every federal agency, NARA must
“ensur[e] adequate and proper documentation of the policies and transactions of the
Federal Government and ensur[e] proper records disposition.” 44 U.S.C. § 2904(a).
Needless to say, then, NARA must carefully marshal its resources and prioritize its
efforts; private direction of its enforcement activity would create significant
disruption.3 As the Court concluded in Chaney, private litigants should not be able to
control an agency’s budget or its agenda. See Chaney, 470 U.S. at 831-32; see also
3
Not every presidential record is necessarily worth pursuing through an enforcement
proceeding. Although many presidential records are extremely historically significant, some
are rather mundane, such as White House parking records maintained by the Office of
Administration. See generally CREW v. Office of Admin., 559 F. Supp. 2d 9 (D.D.C. 2008)
(concluding that the Office of Administration, which is part of the Executive Office of the
President, is not an “agency” subject to FOIA and the Federal Records Act, but is instead
subject to the Presidential Records Act), aff’d, 566 F.3d 219 (D.C. Cir. 2009).
-17-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
25 of 45 Page 53 of
148
Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (“As we have repeated time and again,
an agency has broad discretion to choose how best to marshal its limited resources and
personnel to carry out its delegated responsibilities. That discretion is at its height
when the agency decides not to bring an enforcement action.” (internal citations
omitted)).
At bottom, the PRA wisely sets no limits on NARA’s enforcement discretion.
Thus, NARA’s view that the requested audio diary is a personal record and its decision
not to seek possession of it through an enforcement action is not reviewable. Again,
because the Court cannot order NARA to pursue such an action, Plaintiff’s only alleged
injury—a lack of access to President Clinton’s audiotapes—cannot be redressed by this
Court. Plaintiff has failed to carry its burden to show that it has standing, and
therefore the complaint should be dismissed for lack of subject-matter jurisdiction. See
Newdow, 603 F.3d at 1013 (denying standing because “[t]he only apparent avenue of
redress for plaintiffs’ claimed injuries . . . is unavailable”).
II. THE PRA PRECLUDES JUDICIAL REVIEW OF PLAINTIFF’S CLAIM

UNDER THE APA.
Even apart from Plaintiff’s lack of standing, this lawsuit must be dismissed
because the PRA precludes judicial review of Plaintiff’s APA claim. See 5 U.S.C.
§ 701(a)(1) (stating that the APA applies “except to the extent that . . . statutes
preclude judicial review”). Two independent reasons compel this conclusion.
First, the D.C. Circuit’s Armstrong decisions have already held that Plaintiff’s
APA claim is precluded. See Armstrong I, 924 F.2d at 291 (“We therefore hold that the
-18-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
26 of 45 Page 54 of
148
PRA precludes judicial review of the President’s recordkeeping practices and
decisions.”). Second, the PRA’s text, history, structure, and purpose all confirm that
private litigants are precluded from challenging the President’s classification of a
record as personal under the PRA.
A. The D.C. Circuit’s Armstrong Decisions Have Already Determined

That Plaintiff’s APA Claim is Precluded by the PRA.
Binding precedent has already determined that “the PRA is one of the rare
statutes that does impliedly preclude judicial review.” Armstrong I, 924 F.2d at 290.
Indeed, the type of review that the D.C. Circuit rejected in that case—“judicial review
of the President’s general compliance with the PRA at the behest of private
litigants”—is precisely the review that Plaintiff requests here. Id. at 291; see Compl.
at ¶16 (alleging that “President Clinton unlawfully retained the requested audio-
tapes”). Because such review is precluded, Plaintiff’s complaint must be dismissed.
1. The Armstrong Decisions.
The D.C. Circuit’s Armstrong decisions all involve a lawsuit alleging that then
Presidents Ronald Reagan and George H.W. Bush, among other defendants,
“intend[ed] to delete material from the White House computer systems in violation of
the FRA and PRA.” Armstrong I, 924 F.2d at 286. Specifically, the Armstrong
plaintiffs sought access to emails that were stored on the National Security Council’s
(NSC’s) computers during the Reagan administration. The defendants moved for
summary judgment in the district court, which the court denied after concluding that
-19-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
27 of 45 Page 55 of
148
“judicial review of the President’s compliance with the PRA is permissible under the
APA[.]” Armstrong v. Bush, 721 F. Supp. 343, 353 (D.D.C. 1989).
On appeal, however, the D.C. Circuit reversed the district court’s conclusion.
After reviewing the PRA’s structure and history, the Court stated: “[I]t is difficult to
conclude that Congress intended to allow courts, at the behest of private citizens, to
rule on the adequacy of the President’s records management practices or overrule his
records creation, management, and disposal decisions.” Armstrong I, 924 F.2d at 290.
The Court acknowledged that its decision left open the possibility that the PRA would
not be fully enforced, but concluded that was Congress’s conscious decision:
In declining to give outsiders the right to interfere with White House

recordkeeping practices, Congress presumably relied on the fact that
subsequent Presidents would honor their statutory obligations to keep a
complete record of their administrations. We will not second-guess that
decision or upset the political compromises it entailed. Allowing judicial
review of the President’s general compliance with the PRA at the behest
of private litigants would substantially upset Congress’ carefully crafted
balance of presidential control of records creation, management, and
disposal during the President’s term of office and public ownership and
access to the records after the expiration of the President’s term. We
therefore hold that the PRA precludes judicial review of the President’s
recordkeeping practices and decisions.
Id. at 290-91. The Armstrong I Court did, however, permit plaintiffs to pursue their
FRA-based claim that NSC’s record-keeping guidelines inadequately defined what
materials constituted federal records. See id. at 291.
On remand, the Armstrong plaintiffs amended their complaint to omit all claims
based on the PRA. See Armstrong v. Bush, 139 F.R.D. 547, 550 (D.D.C. 1991); see also
Ex. 5, Armstrong v. Bush, Civ. No. 89-0142, Mot. for Leave to File Am. Compl. & 2d
-20-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
28 of 45 Page 56 of
148
Am. Compl. at 1 (“[P]laintiffs’ Second Amended Complaint, in response to the court of
appeals’ conclusion that judicial review of compliance with the Presidential Records Act
is not available, omits plaintiffs’ claims for relief under that Act.”). Instead, plaintiffs
pursued only their FRA- and FOIA-based claims—namely, their claim that NSC’s
guidelines defining “federal records” were inadequate. See id. at ¶20 (“NSC [has]
issued guidelines . . . on records identification, management, and disposal. These
guidelines . . . fail to provide adequate procedures or guidance to preserve agency
records[.]”). During discovery, when plaintiffs sought access to NSC guidelines
defining what constituted a “presidential record”—which was necessary to determine
how NSC was defining a “federal record”—the district court, relying on Armstrong I,
rejected plaintiffs’ request:
The Court of Appeals held that the PRA precludes judicial review of the
President’s recordkeeping practices and decisions. . . . While the plaintiffs’
argument has some appeal—that is, a logical way to determine what the
agency defines as a record under the FRA is to see what materials are
excluded from that definition—it violates the clear mandate from the
Court of Appeals. The plaintiffs must focus on the defendants’ guidelines
relating to “federal records” rather than conducting discovery on the
instructions relating to “Presidential records”.
Armstrong v. Bush, 139 F.R.D. at 551.
Plaintiffs appealed, and again the D.C. Circuit reversed. The Court re-affirmed
its opinion in Armstrong I, but carved out a “narrow, clearly defined limitation” on the
scope of the PRA’s preclusion of judicial review. Armstrong v. Exec. Office of the
President, 1 F.3d 1274, 1292 (D.C. Cir. 1993) [hereinafter Armstrong II]. Specifically,
the Court held that courts could review “guidelines defining presidential records under
-21-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
29 of 45 Page 57 of
148
the rubric of substantive FOIA law.” Id. at 1292 (emphasis added). Congress, when
passing the PRA, specifically excluded records subject to FOIA from the definition of
“presidential records.” See 44 U.S.C. § 2201(2)(B)(i). Thus, judicial review under the
rubric of substantive FOIA law was necessary to “avert[] a clash in the role of judicial
review under the two statutory schemes” of FOIA and the PRA. Armstrong II, 1 F.3d
at 1292; see also id. at 1294 (“Congress expressly intended when it passed the PRA to
preserve unchanged the coherent body of law that had been developed under the FOIA,
and it is that body of law that provides the basis for our limited review of the definition
of presidential records provided in the guidelines.” (emphasis added)).
The holding of Armstrong II, therefore, is that a court, when considering FRA-
or FOIA-based claims, may engage in “limited review” of “guidelines defining
presidential records” to assure that those guidelines “do not improperly sweep in
nonpresidential records” that would otherwise be subject to the FRA or FOIA. Id. at
1278. The Armstrong II decision did not, however, modify Armstrong I’s conclusion
that courts cannot directly review a President’s compliance with the PRA. See
Armstrong v. Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996) [hereinaf-
ter Armstrong III] (“[R]ecordkeeping requirements of the FRA are subject to judicial
review and enforcement; those of the PRA are not.”). The Armstrong II panel said
nothing about judicial review of stand-alone PRA claims, because that issue was not
before the Court—the Armstrong plaintiffs, as noted above, had omitted all of their
claims based on the PRA.
-22-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
30 of 45 Page 58 of
148
2. Plaintiff’s Lawsuit Here is Precluded By the Armstrong

Decisions.
As the D.C. Circuit made clear throughout the Armstrong litigation, the PRA
precludes “judicial review of the President’s general compliance with the PRA at the
behest of private litigants[.]” Armstrong I, 924 F.2d at 291. And yet that is precisely
the kind of review that Plaintiff seeks here. This Court, in evaluating whether to grant
Plaintiff relief, would necessarily have to decide whether “President Clinton unlawfully
retained the requested audiotapes,” as Plaintiff alleges. See Compl. at ¶16 (emphasis
added). Moreover, the exact same relief that Plaintiff seeks here was already rejected
by the D.C. Circuit in Armstrong I. Compare Compl. at 5 (requesting the court to
“declare the requested records to be presidential records”), with Armstrong I, 924 F.2d
at 286-87 (describing plaintiffs’ lawsuit as seeking, in part, a “declaration that many
of the documents stored in the PROFS system . . . are presidential records”). Thus,
Plaintiff’s lawsuit falls within the heart of Armstrong I’s preclusion of judicial review.
Nothing, moreover, in Armstrong II allows for review of Plaintiff’s lawsuit.
Specifically, there are two key differences between Plaintiff’s lawsuit here and the
review allowed by Armstrong II.
First, and most fundamentally, Armstrong II allows for review of guidelines that
define what constitutes a presidential record. Here, Plaintiff does not challenge any
guideline or general definition of “presidential records.” Instead, Plaintiff challenges
the application of that term to these particular audiotapes. Such lawsuits are clearly
outside Armstrong II’s provision for limited review of “guidelines defining presidential
-23-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
31 of 45 Page 59 of
148
records.” 1 F.3d at 1292.4 Whatever Armstrong II might otherwise stand for, it
certainly does not open up review for Plaintiff’s lawsuit here.
The second reason why Armstrong II does not provide for review of Plaintiff’s
lawsuit is because Plaintiff’s suit does not include any FRA- or FOIA-based claims. As
discussed above, Armstrong II enables judicial review of guidelines defining
presidential records, but only when the plaintiff is proceeding under FRA- or FOIA-
based claims. When a lawsuit contains only PRA claims, as does Plaintiff’s suit here,
Armstrong II precludes review.5
4
Even under the FRA, plaintiffs are precluded from challenging how particular
documents are classified. See Armstrong I, 924 F.2d at 294 (holding that the FRA “preclud[es]
private litigants from suing directly to enjoin agency actions in contravention of agency
guidelines”); CREW v. DHS, 527 F. Supp. 2d at 111-12 (“The FRA . . . precludes a private
action, like this one, that seeks to require agency staff to comply with the agency’s record-
keeping guidelines or the FRA[.]”); Pub. Citizen v. Carlin, 2 F. Supp. 2d 1, 9 (D.D.C. 1997)
(Friedman, J.) (“While judicial review is precluded to the extent that allegations are made that
agency officials are not acting in compliance with their duties under recordkeeping guidelines,
the Court has a role to play in reviewing the guidelines themselves under the APA.”),
overruled on other grounds by Pub. Citizen v. Carlin, 184 F.3d 900 (D.C. Cir. 1999). If a
particular record has been mis-classified, the only recourse is the administrative enforcement
mechanism provided for by Congress.
5
To be sure, not every court has agreed with this interpretation of Armstrong II. See,
e.g., CREW v. Cheney, 593 F. Supp. 2d 194 (D.D.C. 2009) (Kollar-Kotelly, J.). But with all due
respect to the Court, Cheney has three significant flaws. First, Cheney reads Armstrong II as
broadly permitting review of PRA claims. But the Armstrong II Court could not have made
a broad pronouncement about what type of review is available under the PRA, because that
Court did not have any PRA claims before it.
Second, Cheney fails to acknowledge that Armstrong II permitted judicial review
related to the PRA only “to avert[] a clash” with FOIA. Contrary to the Cheney court’s holding,
then, it does matter which statute a plaintiff is proceeding under. See Cheney, 593 F. Supp. 2d
at 215. And third, by narrowly construing Armstrong I to preclude review only of “the
President’s ‘creation, management, and disposal decisions,’” 593 F. Supp. 2d at 214-15, the
Cheney Court ignores the other types of decisions that the Armstrong I Court held were not
subject to review. See Armstrong I, 924 F.2d at 286-87 (plaintiffs sought “a declaration that
many of the documents . . . are presidential records,” and an injunction “directing the
President and NSC to classify and preserve the documents as required by the FRA and PRA”).
-24-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
32 of 45 Page 60 of
148
In sum, the D.C. Circuit’s Armstrong decisions confirm that the PRA precludes
judicial review of Plaintiff’s lawsuit. A necessary element of Plaintiff’s suit here is
reviewing whether President Clinton violated the PRA. Armstrong I precludes such
review, however, and nothing in Armstrong II alters that conclusion. Plaintiff’s lawsuit
should therefore be dismissed.
B. The PRA Precludes a Private Litigant From Challenging the

President’s Classification of a Particular Record as Personal.
Even apart from the Armstrong decisions, the PRA also evinces a clear intent
to preclude private litigants from challenging the President’s classification of a
particular record as personal. “Whether and to what extent a particular statute
precludes judicial review is determined not only from its express language, but also
from the structure of the statutory scheme, its objectives, its legislative history, and
the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467
U.S. 340, 345 (1984). Here, the PRA’s text, history, structure, and purpose all confirm
that private litigants are unable to challenge the President’s designation of a record
as personal.
First, the PRA’s text supports the view that private litigants may not challenge
the designation of a record as personal. When drafting the PRA, Congress clearly knew
how to provide for judicial review when it wanted to. It did so expressly with respect
to the administrative enforcement mechanism, 44 U.S.C. § 2112(c), and with respect
to former Presidents’ ability to assert privilege claims. See 44 U.S.C. § 2204(e) (“The
United States District Court for the District of Columbia shall have jurisdiction over
-25-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
33 of 45 Page 61 of
148
any action initiated by the former President asserting that a determination made by
the Archivist violates the former President’s rights or privileges.”).6 The absence of
such express language in other sections of the statute, therefore, implies that Congress
intended not to allow judicial review of those actions. See Russello v. United States,
464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
(internal quotations and alteration omitted)). The text of the PRA, then, counsels
against allowing a private litigant to challenge the President’s designation of a
particular record as personal.
Second, the PRA’s history confirms that Congress intended to minimize
intrusions on the President’s personal privacy. As alluded to earlier, the PRA was
passed in the wake of the PRMPA and the litigation surrounding that statute. One of
President Nixon’s key arguments in challenging the PRMPA was that it unlawfully
intruded on his personal privacy because it seized his personal papers and subjected
them to review. Although the Supreme Court upheld the facial validity of the PRMPA,
the Justices were highly sensitive to President Nixon’s argument. See Nixon v. Adm’r,
433 U.S. at 459 n.22 (“[T]he Government should now promptly disclaim any interest
in materials conceded to be appellant’s purely private communications and deliver
them to him.”). One of the Justices in the majority even wrote separately to stress that
6
Congress also expressly provided for judicial review in the PRMPA. See note following
44 U.S.C. § 2111 at § 105.
-26-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
34 of 45 Page 62 of
148
“return of these [personal] materials should proceed without delay.” Id. at 484 (White,
J., concurring in part and concurring in the judgment). And although the Supreme
Court upheld the facial validity of the PRMPA, at the time of the PRA’s passage
President Nixon was still litigating the validity of the regulations promulgated to
implement the PRMPA. Thus, the precise scope of a President’s privacy
right—specifically his right not to have his personal papers reviewed by others—was
still undefined.
Congress was well aware of this uncertainty, and sought to ensure that the PRA
would not intrude on future Presidents’ privacy rights. See, e.g., H.R. REP. NO . 95-
1487, pt. 1, at 5-7 (1978), reprinted in 1978 U.S.C.C.A.N. 5732, 5737-38 [hereinafter
HOUSE REPORT] (discussing the history of the Nixon materials and the Supreme Court’s
decision); id. at 11 (noting the need “to properly protect a President’s privacy interests
and his first amendment associational rights”). In light of this history, Congress would
not have authorized private litigants to obtain judicial review of a President’s
determination that certain records are personal. Congress instead left decisions about
whether to recover materials in the possession of a former President (or any other
individual) in the hands of the Archivist and the Attorney General.
Third, the PRA’s overall structure also supports preclusion of judicial review.
Yet another way the PRA protects the President’s privacy is by allowing the President
to restrict access to certain categories of presidential records for up to twelve years.
See 44 U.S.C. § 2204(a). During that restricted period, a person denied access to a
record has no right to judicial review of that denial. Id. § 2204(b)(3). The President’s
-27-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
35 of 45 Page 63 of
148
personal papers, by contrast, are not subject to any restricted period, because those
papers are not government records and are excluded from the public disclosure
requirements of the PRA. Were this Court to permit judicial review, however, it would
lead to the anomalous consequence that the President’s most sensitive papers would
be immediately subject to judicial review. At 12:01p.m. on January 20th, as soon as
the President has left office, a plaintiff would be able to file a lawsuit seeking access
to the former President’s diary, which may include reflections from mere moments ago.
It is highly improbable that Congress, obviously concerned about the President’s
personal privacy, intended such a system.
That conclusion is re-enforced by the fourth relevant consideration—the purpose
of the provision excluding a President’s personal papers from government control. By
giving each President complete control over his personal papers, Congress hoped that
it would encourage Presidents to create and preserve such papers, and that Presidents
would later voluntarily donate those papers to the National Archives. As Represen-
tative Brademas, one of the PRA’s co-sponsors, explained: “We also hope that, in
protecting materials such as purely personal diaries from mandatory disclosure, we
will encourage their creation in the first instance and keep alive the possibility of a
voluntary gift of these materials.” To Amend the Freedom of Information Act to Insure
Public Access to the Official Papers of the President, and for Other Purposes: Hearings
Before the Subcomm. on Gov’t Information and Individual Rights of the H. Comm. on
Gov’t Operations, 95th Cong. 72 (1978) [hereinafter House Hearings].
-28-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
36 of 45 Page 64 of
148
Senator Nelson, one of the Act’s co-sponsors in the Senate, shared this view: “It
is hoped that allowing former Presidents considerable leeway in the definition of
‘personal records’ will encourage those Presidents to make available those records after
a reasonable length of time.” To Amend Title 44 to Insure the Preservation and Public
Access to the Official Records of the President, and for Other Purposes: Hearing on
S. 3494 Before the S. Comm. on Gov’t Affairs, 95th Cong. 2 (1978) [hereinafter Senate
Hearings]. Moreover, this philosophy was espoused by many prominent witnesses
during the hearings on the PRA.7 And indeed this approach has been vindicated, as
shown by the donation of President Reagan’s personal diary to NARA’s Reagan
Library.
In light of this philosophy, it is implausible to think that Congress would have
permitted judicial review over a President’s personal papers. Knowing that private
litigants could challenge the designation of personal records would almost certainly
deter a President from creating those records in the first place. And understandably
so—most people, let alone public figures, would balk at the prospect of having to defend
their diary in court. Judicial review, therefore, is inconsistent with the purpose
underlying the PRA’s personal papers provision.
7
See, e.g., House Hearings at 389-90 (statement of Daniel J. Boorstin, Librarian of
Congress); id. at 210-11 (statement of Arthur Schlesinger, Jr., Professor of Humanities, City
University of New York). This view was also embraced by the influential report written by the
National Study Commission on Records and Documents of Federal Officials, produced in the
wake of the dispute over the Nixon materials. See House Hearings at 445-46 (“Because of their
great historical value, every encouragement should be offered to the President to preserve
[personal] materials, and to make them publicly available.”).
-29-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
37 of 45 Page 65 of
148
At bottom, the Congress of 1978 did not intend for private litigants to be able to
pursue judicial review over a President’s decision that certain records are personal.
The PRA’s text implicitly precludes judicial review, and the history preceding the PRA
shows that Congress was extremely concerned about future Presidents’ privacy rights.
Moreover, judicial review would be extremely intrusive, particularly because it could
occur immediately after a President’s term ended. Such review would undoubtedly
discourage Presidents from creating or preserving personal records in the first place,
which is the very opposite of Congress’s desired goal. For all of these reasons, this
Court should dismiss Plaintiff’s lawsuit, because the PRA precludes private litigants
from challenging a President’s classification of certain records as personal.8
III. PLAINTIFF’S LAWSUIT IS PREMATURE BECAUSE NARA HAS NOT

UNDERTAKEN A FINAL AGENCY ACTION.
Even assuming that some measure of judicial review were available under the
PRA, the particular facts of this case make review inappropriate. Specifically, NARA
has not yet undertaken a final agency action. The letters that form the basis of this
suit were responses to Plaintiff’s FOIA request, and do not represent a final agency
8
To be clear, the above preclusion arguments would not affect a court’s ability to decide
a lawsuit instituted by the Attorney General for the recovery of a presidential record. That
lawsuit, as discussed above, is expressly provided for in the PRA. See 44 U.S.C. § 2112(c); see
also supra Part I.A. Obviously, Congress cannot impliedly preclude something that it provided
for expressly. Moreover, it is not uncommon for Congress to preclude some people from
bringing an action, but not others. See, e.g., Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345
(1984) (“[W]e must examine this statutory scheme to determine whether Congress precluded
all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class
to which the respondents belong.” (internal alterations and quotations omitted)).
-30-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
38 of 45 Page 66 of
148
determination regarding the PRA claim at issue here. Judicial review, therefore,
would be premature.
Under the APA, a plaintiff may obtain judicial review only of “final agency
action[.]” 5 U.S.C. § 704. To constitute “final agency action,” an agency’s action must
have two characteristics: the action “must mark the consummation of the agency’s
decisionmaking process;” and the action “must be one by which rights or obligations
have been determined, or from which legal consequences will flow.” Bennett v. Spear,
520 U.S. 154, 177-78 (1996) (internal quotation marks omitted). Agency action “is not
final if it is only the ruling of a subordinate official, or tentative.” Franklin v.
Massachusetts, 505 U.S. 788, 797 (1992).
Here, Plaintiff alleges that “Defendant’s March 16, 2010 determination was a
final agency action for which there is no other adequate remedy in a court of law.”
Compl. at ¶19. The March 16th determination was the letter that NARA sent to
Plaintiff, stating that NARA was denying Plaintiff’s FOIA appeal. See Ex. 4 (Letter
from Deputy Archivist Adrienne C. Thomas to Michael Bekesha).
To be sure, that letter constituted final agency action with respect to Plaintiff’s
FOIA request. But Plaintiff is obviously not pursuing a FOIA claim here.9 Plaintiff
is instead pursuing this APA claim, which requires Plaintiff to characterize the letter
9
In Plaintiff’s prayer for relief, Plaintiff does ask for an order requiring NARA “to
process the records pursuant to FOIA,” and for “attorney’s fees and other litigation costs
pursuant to” the FOIA statute. Compl. at 5. Such relief is unavailable in this lawsuit,
however, because those forms of relief are available under FOIA itself. Thus, they cannot be
pursued under the APA. See Bowen v. Massachusetts, 487 U.S. 879, 903 (1988); Kenney v.
Dep’t of Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009) (Friedman, J.).
-31-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
39 of 45 Page 67 of
148
as a different type of final agency action—a final determination regarding the PRA
issues raised in this lawsuit.
A close reading of the letter, however, reveals that it does not meet either test
for finality. As an initial matter, the letter did not alter any rights or obligations or
create any legal consequences—at least not with respect to the PRA claim. The letter
was sent as a response to a FOIA appeal, and as soon as NARA stated that it did not
possess the records, that was sufficient to end the FOIA matter. See Kissinger, 445
U.S. at 152 (holding that “possession or control [of records] is a prerequisite to FOIA
disclosure duties”). Whatever language came afterwards could not, by definition, affect
any legal rights or consequences, because the only legal question presented by the
letters had already been resolved. Thus, NARA’s opining about the status of the
audiotapes did not have any legal consequences, which means it was not final agency
action. See Am. Fed’n of Gov’t Employees, AFL-CIO v. O’Connor, 747 F.2d 748, 753
(D.C. Cir. 1984) (Ginsburg, R.B., J.) (“No precedent known to us sanctions court review
of such nonbinding advisory expositions.”).
Moreover, NARA’s letter does not represent the consummation of its decision-
making process with respect to Plaintiff’s PRA claim here. Plaintiff’s letters to NARA
were written solely within the context of a FOIA claim, and that is what NARA
responded to. Plaintiff did not argue, nor did NARA consider, the precise PRA claim
presented here—namely, that the PRA requires NARA to assume custody and examine
President Clinton’s audiotapes, because those tapes are potential presidential records.
Plaintiff is still free to raise that argument to NARA, and thus judicial review at this
-32-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
40 of 45 Page 68 of
148
stage would be premature. See Reliable Automatic Sprinkler Co. v. Consumer Prod.
Safety Comm’n, 324 F.3d 726, 732-33 (D.C. Cir. 2003) (“So long as [Plaintiff] retains
the opportunity to convince the agency that [the agency should take a certain action],
it makes no sense for a court to intervene.”).
NARA’s letter from March 16, 2010 represents a final agency action for only one
type of claim—a FOIA claim. NARA’s additional comments about the status of the
audiotapes did not directly affect any legal obligations, and did not represent the
consummation of NARA’s decisionmaking process. Thus, Plaintiff’s lawsuit is
premature because there is no final agency action for this Court to review.
IV. PLAINTIFF HAS FAILED TO STATE A CLAIM BECAUSE EVEN

TAKING ALL ALLEGED FACTS AS TRUE, NARA DID NOT ACT
ARBITRARILY OR CAPRICIOUSLY IN UPHOLDING PRESIDENT
CLINTON’S CLASSIFICATION OF THE AUDIOTAPES AS PERSONAL
RECORDS.
Even if the Court decides that Plaintiff has overcome all of the threshold
barriers to review, Plaintiff’s complaint should still be dismissed on the merits for
failure to state a claim. Nothing in the complaint takes Plaintiff’s right to relief
beyond the “speculative level.” Twombly, 550 U.S. at 555. Even assuming that all of
Plaintiff’s factual allegations are true, NARA correctly upheld President Clinton’s
classification of the audiotapes as personal records. Thus, NARA could not have acted
arbitrarily or capriciously.
Under the APA, the “arbitrary and capricious” standard of review is a narrow
one. A court may not “substitute its judgment for that of the agency,” and ultimately
may reverse only if the agency has committed “a clear error of judgment.” Citizens to
-33-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
41 of 45 Page 69 of
148
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). As long as the agency
“examine[s] the relevant data and articulate[s] a satisfactory explanation for its
action,” the agency has not acted arbitrarily or capriciously. Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
As Plaintiff’s complaint states, the definition of “presidential records” includes
“documentary materials created by the President ‘in the course of conducting activities
which relate to or have an effect upon the carrying out of the constitutional, statutory,
or other official or ceremonial duties of the President.” Compl. at ¶5 (quoting 44 U.S.C.
§ 2201(2)). Specifically exempted from that definition, however, are a President’s
personal records. See 44 U.S.C. § 2201(2)(B) (“Such term [presidential records] does
not include . . . personal records[.]”). Thus, even if the contents of a personal record
relate to the President’s official duties, that record remains a personal one. As relevant
here, the PRA defines “personal records” to expressly include “diaries, journals, or
other personal notes serving as the functional equivalent of a diary or journal which
are not prepared or utilized for, or circulated or communicated in the course of,
transacting Government business[.]” Id. § 2201(3)(A).
The relevant question here, therefore, is not whether the requested audiotapes
relate to President Clinton’s official duties as President. That inquiry is irrelevant if
the audiotapes are validly classified as personal records. Instead, the relevant
questions are whether the audiotapes are “the functional equivalent of a diary” and
whether the tapes were “prepared or utilized for, or circulated or communicated in the
course of, transacting Government business.”
-34-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
42 of 45 Page 70 of
148
As for the first question, NARA properly concluded that the audiotapes are the
functional equivalent of a diary. As Plaintiff’s own complaint alleges, President
Clinton’s goal was to “creat[e] an oral history of his eight years in office.” Compl. at ¶8.
Accordingly, President Clinton recorded his “thoughts and commentary on contempora-
neous events and issues he was facing as president[.]” Id. at ¶9. The audiotapes,
according to Plaintiff, include things like “President Clinton contemplating potential
changes to his cabinet” and “President Clinton’s thoughts and reasoning behind
foreign-policy decisions[.]” Id. at ¶¶11(a), 11(b).
A person’s thoughts, commentary, contemplations, and reasoning are precisely
the kinds of things that one would expect to find in a diary. And indeed that is what
NARA’s letter concluded:
It seems self-evident that the President was interested in compiling

information for use, at his discretion, in personal endeavors following his
presidency. Indeed, you assert, by citing to Mr. Branch’s book, that the
audio tapes were a way for President Clinton to explain, during his “post-
presidency,” his reasoning behind much of his policy-making and decision
making. This seems to suggest that President Clinton’s intent was to use
the audio tapes as memory joggers about major initiatives and historical
events that occurred while he was in office, akin to “diaries, journals or
other personal notes.”
Ex. 4 at 2 (Letter from Deputy Archivist Adrienne C. Thomas to Michael Bekesha).
This passage satisfactorily explains NARA’s reasoning for why the tapes are the
functional equivalent of a diary.
The fact that the audiotapes may occasionally include President Clinton’s side
of telephone conversations does not change this conclusion. NARA acknowledged that
issue, too, and likewise addressed it directly: “[W]hile the audio tapes sometimes
-35-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
43 of 45 Page 71 of
148
record President Clinton’s statements and actions in response to telephone calls with
local and national leaders, there is no evidence to suggest that the tapes were
circulated to anyone or relied on for policy determinations of the Clinton administra-
tion.” Ex. 4 at 2. Because the tapes themselves were never used as part of President
Clinton’s official duties, NARA properly concluded that the tapes retained their
personal character. A contrary interpretation—that any diary recording official events
suddenly becomes a presidential record—would transform a sanctuary that Congress
carefully constructed into an empty sieve. NARA’s conclusion makes good sense, and
cannot be described as a clear error in judgment.
As for the second question—whether the tapes were “prepared or utilized for, or
circulated or communicated in the course of, transacting Government business,” 44
U.S.C. § 2201(3)(A)—nowhere does Plaintiff allege that the tapes were, in fact,
prepared for transacting government business, utilized for conducting government
business, circulated in the course of transacting government business, or communi-
cated in the course of transacting government business. Plaintiffs do allege that the
tapes contain content relating to government business—but that is not enough to take
them outside of the carefully crafted exception for diaries. NARA addressed this issue
and explained the basis for its decision. See Ex. 4 at 2 (considering whether the
audiotapes “were created with the intent of their use as government materials, and
whether or not they were circulated within the Administration or relied on as policy
documents,” and concluding that “there is no suggestion that [the tapes] were
circulated or relied on for final decisions, or ever intended to be maintained by the
-36-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
44 of 45 Page 72 of
148
White House Office of Records Management”). Again, this explanation goes far beyond
satisfactory, and is hardly a clear error in judgment.
Finally, any doubt on these questions must be resolved in NARA’s favor based
on the deference owed to NARA—the agency charged with administering the PRA.
Indeed, NARA has significant institutional expertise with respect to presidential
records and personal records of Presidents; NARA and its predecessor agencies have
been operating presidential libraries since the 1940s. Thus, NARA’s interpretation of
the term “diaries, journals, or other personal notes serving as the functional equivalent
of a diary or journal,” 44 U.S.C. § 2201(3)(A), is entitled to significant deference. See
generally United States v. Mead Corp., 533 U.S. 218 (2001). Plaintiff’s allegations
cannot overcome the deferential review that this Court must give to NARA’s conclusion
about the status of the audiotapes.
Even assuming that all of the facts in Plaintiff’s complaint are true, and that
NARA’s letter constituted a final agency decision, Plaintiff’s right to relief does not rise
above the “speculative level[.]” Twombly, 550 U.S. at 555. In upholding President
Clinton’s classification of the tapes as personal records, NARA properly considered all
of the relevant factors, adequately explained its decision, and did not commit a clear
error in judgment. NARA did not, therefore, act arbitrarily or capriciously, and
Plaintiff’s complaint should be dismissed for failure to state a claim.
-37-
Document Document
327-1 Entered
6-1 Filed
on FLSD
01/03/11
DocketPage
02/22/2024
45 of 45 Page 73 of
148
CONCLUSION
For all the foregoing reasons, Plaintiff’s complaint should be dismissed for lack
of subject-matter jurisdiction, or, in the alternative, for failure to state a claim upon
which relief can be granted.
Dated: January 3, 2011 Respectfully submitted,
TONY WEST
Assistant Attorney General
RONALD C. MACHEN JR.

United States Attorney
/s/ Elizabeth J. Shapiro

ELIZABETH J. SHAPIRO
D.C. Bar Number 418925
Deputy Branch Director
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20530
Tel. (202) 514-5302
Fax (202) 616-8470
[email protected]
Attorneys for Defendant
-38-
148
EXHIBIT 3
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
1 of 74 Page 75 of
148
1
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3 JUDICIAL WATCH, INC., ) Civil Action No.

Plaintiff. ) 10-cv-1834
4 v. )
NATIONAL ARCHIVES AND ) October 14, 2011
5 RECORDS ADMINISTRATION, ) 10:03 a.m.
)
6 Defendant. ) Washington, D.C.
------------------------
7
10 TRANSCRIPT OF MOTION HEARING
11 BEFORE THE HONORABLE AMY BERMAN JACKSON

UNITED STATES DISTRICT JUDGE
12
13
14
15
16
17
18
19
20
21
22 COURT REPORTER: PATRICIA A. KANESHIRO-MILLER, RMR

Certified Realtime Reporter
23 Official Court Reporter
Room 4704B, U.S. Courthouse
24 Washington, D.C. 20001
202-354-3243
25
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
2 of 74 Page 76 of
148
2
1 APPEARANCES
2 FOR THE PLAINTIFF:

MICHAEL BEKESHA, ESQ.
3 Judicial Watch
425 Third Street, S.W.
4 Suite 800
Washington, D.C. 20024
5
FOR THE DEFENDANT:
6 DANIEL SCHWEI, ESQ.
ELIZABETH SHAPIRO, ESQ.
7 U.S. Department of Justice
Civil Division
8 20 Massachusetts Avenue, N.W.
Washington, D.C. 20001
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
3 of 74 Page 77 of
148
3
1 PROCEEDINGS
2 THE CLERK: Your Honor, calling Civil Action 10-1834,
3 Judicial Watch, Incorporated v. National Archives and Records
4 Administration.
5 Will all counsel please approach the podium and
6 identify yourselves for the record and the parties you
7 represent.
8 MR. BEKESHA: Good morning, Your Honor. Michael
9 Bekesha on behalf of the plaintiff, Judicial Watch.
10 THE COURT: Good morning.
11 MR. SCHWEI: Good morning, Your Honor. Daniel Schwei
12 on behalf of the defendant, the National Archives and Records
13 Administration.
15 MS. SHAPIRO: Good morning, Your Honor. Elizabeth
16 Shapiro on behalf of the Archives.
18 This is the defendant's motion, so I think we ought to
19 start with the defendant.
20 MR. SCHWEI: Good morning, Your Honor, and may it
21 please the Court, plaintiff's requested relief is both
22 extraordinary and unprecedented. Plaintiff is attempting to
23 compel the National Archives to physically seize and then
24 publicly scrutinize the personal audio diary of a former
25 president of the United States. This Court lacks the

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
4 of 74 Page 78 of
148
4
1 authority to provide such relief. Neither the Presidential
2 Records Act nor the Administrative Procedure Act authorizes
3 such an order. Under those statutes, a private litigant
4 cannot compel the seizure and scrutiny of a potential
5 presidential record. This fundamental defect underlies each
6 of the threshold reasons why plaintiff's complaint must be
7 dismissed.
8 First, plaintiff's alleged injury is not redressable.
9 Plaintiff's only alleged injury here is a lack of access to
10 the audiotapes, but the Court cannot require NARA to go seize
11 those audiotapes, and NARA does not currently possess the
12 audiotapes; therefore, the injury cannot be redressed under
13 the PRA. Moreover, NARA's decision about how to enforce the
14 PRA cannot be overruled by this Court.
15 THE COURT: Can I determine from the face of the
16 pleadings from the point where we are at the moment that you
17 don't actually have them?
18 MR. SCHWEI: According to the allegations in
19 plaintiff's complaint, NARA does not currently possess the
20 tapes.
21 THE COURT: I think he says, upon information and
22 belief, the president took them with him. And I think it's in
23 one of your -- the second letter, the appeal letter,
24 Exhibit 4, that the archivist says, we don't have them. You
25 would have thought that would have been the response to the
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
5 of 74 Page 79 of
148
5
1 first -- in the first letter, but at that point they say, we
2 don't have them. Is that a given for purposes of this
3 hearing? I'm going to ask the plaintiff the same thing. Does
4 everybody agree that they're not there?
5 MR. SCHWEI: Yes, Your Honor --
6 THE COURT: All right.
7 MR. SCHWEI: -- I think everybody does agree that
8 they're not there. That's based both on the complaint and the
9 letter that you referenced --
10 THE COURT: Okay.
11 MR. SCHWEI: -- which is incorporated into the
12 complaint.
13 THE COURT: Okay.
14 MR. SCHWEI: With those allegations, because NARA does
15 not possess the tapes and because the Court can't order NARA
16 to go out and seize the tapes, there is simply no way to
17 redress the only injury alleged in plaintiff's complaint,
18 which is a lack of access to the audiotapes.
19 The second threshold reason which is tied to that same
20 fundamental defect is that the PRA is the statute that
21 precludes judicial review under the PRA. That's true both
22 because of the D.C. Circuit's Armstrong line of decisions and
23 because the particular action here, namely the classification
24 of particular records as personal, is precluded by the PRA.
25 The third threshold reason is the lack of final agency

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
6 of 74 Page 80 of
148
6
1 action. The letters that Your Honor referenced earlier were a
2 response to a FOIA appeal, not to anything related to the PRA.
3 And the final reason, which is not a threshold reason
4 why this Court must dismiss the complaint, is that it fails to
5 state a claim upon which relief can be granted. Even assuming
6 all of the factual allegations, the particular records here
7 were not -- NARA's action in responding to those letters was
8 not an arbitrary and capricious action.
9 THE COURT: Let me start with kind of the fundamentals
10 here. Basically, you are beyond the redressability issue,
11 which goes to the scope of the archivist's authority. I guess
12 your third position is that -- the second issue that you
13 raised is that the classification decision is not reviewable
14 by the Court.
15 Who made the classification decision here?
16 MR. SCHWEI: I think there are two classification
17 decisions, only one of which the plaintiff is challenging.
18 President Clinton initially classified the audiotapes as --
19 presumably classified the tapes as personal records by not
20 transferring them to the archives at the conclusion of his
21 administration.
22 There's then the second classification determination,
23 setting aside the final agency action problem, of course, but
24 assuming that there is a final determination on that issue,
25 NARA then would be presented with the issue: Do we agree with

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
7 of 74 Page 81 of
148
7
1 the president's classification? If NARA does not agree, then
2 they can invoke their enforcement mechanism, which we discuss;
3 or if they do agree, then they are not required to do anything
4 further. And so there's really -- there are two
5 classification decisions, but the issue in front of this Court
6 is did NARA act arbitrarily or capriciously in making their
7 own decision or responding to the plaintiff's own letter.
8 THE COURT: Well, I don't understand -- the judicial
9 review issue seems to be based on the president's
10 classification decision. Once archives takes it upon itself
11 to make its own classification decision, why isn't that
12 reviewable? What was it even doing at that point?
13 MR. SCHWEI: Because the issues are exactly the same,
14 are these presidential records or are these personal records,
15 and so for this Court to review the archivist decision, it
16 would necessarily have to decide did the president correctly
17 classify these materials. And plaintiff's own complaint bears
18 that out when they allege that President Clinton unlawfully
19 retained these materials. So the rationale for why judicial
20 review is precluded, namely a sensitivity for the president's
21 personal papers, applies both to the president's own
22 classification decision as well as the archivist decision
23 because that issue, the examination of are these presidential
24 or personal, that is the rationale for precluding judicial
25 review, and the Court would have to answer that question

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
8 of 74 Page 82 of
148
8
1 regardless of whether it is the archivist or the president.
2 THE COURT: Well, all the arguments for why I can't
3 review a decision of the president don't apply to the
4 archivist, so my first question: What was -- under what
5 authority was the archivist even purporting to reclassify or
6 to classify at all the tapes? I mean the -- the letter says I
7 have to consider the nature of the audiotapes, the purpose for
8 which they were created, how they were utilized. Based on the
9 record before me, I am of the opinion that the tapes are
10 personal.
11 Now, under the statute, differentiation between
12 presidential records and personal records is made by the
13 president. At the close of the presidency, the presidential
14 records become -- fall within the custody of the archivist.
15 What was the archivist doing when it purported to make a
16 classification decision? What portion of the statute even
17 permitted that exercise to go on?
18 MR. SCHWEI: Right, I think the statute would be
19 Section 2112(c), which is the enforcement mechanism, which
20 allows the archivist to go after records that it believes are
21 improperly classified or that are outside of its control and
22 that it believes should be within its custody and control, and
23 so that is exactly what happened in the McIlveney decision,
24 the United States v. McIlveney lawsuit in which the archivist
25 and the Department of Justice jointly brought a lawsuit to

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
9 of 74 Page 83 of
148
9
1 recover a map of Cuba that was annotated by President Kennedy
2 because they believed it belonged in the Kennedy Presidential
3 Library.
4 THE COURT: So the decision before this Court to
5 review, in your view, is the archivist's refusal to invoke the
6 enforcement mechanism under 2112? Is that even alleged in the
7 complaint?
8 MR. SCHWEI: No, the action as alleged in the
9 complaint is an arbitrary and capricious challenge to the
10 merits decision, are these presidential or personal; but
11 there's a separate question of redressability. And a
12 necessary action to redress plaintiff's injury would be to
13 order the archivist to initiate this enforcement action. So
14 even before we deal with the complaint, the actual claim in
15 the complaint, the Court needs to examine the threshold
16 inquiry of redressability. Under that inquiry, the relevant
17 decision is did the archivist fail to invoke the enforcement
18 mechanism or is that something the Court can review. And the
19 answer is no. And so it's not necessarily what is alleged in
20 the complaint, but it is a separate inquiry under the
21 redressability. And so because this Court cannot review the
22 archivist's failure to enforce the discretionary -- or the
23 failure to bring the discretionary enforcement action, that's
24 why redressability fails here.
25 THE COURT: What's your basis -- I understand the

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
10 of 74 Page 84 of
148
10
1 basis for saying I can't review what the president did. What
2 is your basis for your claim that I can't review the
3 archivist's decision of whether or not to invoke the
4 enforcement mechanism?
5 MR. SCHWEI: I think it starts with heck Heckler v.
6 Chaney, the Supreme Court's decision stating that
7 presumptively, a failure to bring an enforcement action is not
8 reviewable by this Court. And then the second thing is when
9 one looks at the actual statutory text of the enforcement
10 mechanism, it says that when the archivist considers it to be
11 in the public interest, he may initiate an enforcement action.
12 And that type of language, when an agency, individual, or
13 representative considers it to be in the public interest, has
14 already been construed by the D.C. Circuit to constitute
15 unreviewable discretion by the agencies because there is no
16 law to apply for this Court in determining whether the agency
17 had properly determined whether something is or is not in the
18 public interest.
19 THE COURT: Can I review it under the APA as arbitrary
20 and capricious exercise of the discretion? The discretion is
21 so unfettered that I can't even review it under that standard?
22 MR. SCHWEI: Correct, Your Honor, which is what both
23 Heckler v. Chaney and the line of D.C. Circuit decisions hold,
24 which is that APA review has a carve-out stating that this
25 statute of the APA does not apply to agency action committed

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
11 of 74 Page 85 of
148
11
1 to agency discretion by law, and that is exactly what the
2 Supreme Court held in Heckler v. Chaney; that an agency's
3 failure to initiate an enforcement action is unreviewable
4 because that decision is committed to agency discretion by
5 law. And the particular statutory text we have here, the D.C.
6 Circuit already construed nearly identical statutory text and
7 also agreed that that language constitutes unreviewable
8 discretion, so no APA review is available.
9 THE COURT: What you're saying makes it -- when you
10 read the letter, it doesn't give you any indication that what
11 the archivist is talking about is whether or not it's going to
12 invoke the enforcement mechanism. It sounds like the
13 archivist is making a classification decision, which is not
14 committed to the archivist in the first place.
15 MR. SCHWEI: According to the D.C. Circuit's case
16 laws, I think it is, and the reason why is because part of the
17 decision whether to enforce is the antecedent judgment whether
18 a violation has even occurred, and those are the cases that we
19 cite in our reply brief, such as Block v. SEC, that even if
20 the Court -- even if the agency declines not to enforce on the
21 basis of there being no violation, that antecedent
22 determination whether there is or is not a violation is part
23 of the decision to enforce and thus cannot be reviewed. And
24 that's true both under the D.C. Circuit's law and it was the
25 case in Heckler v. Chaney.

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
12 of 74 Page 86 of
148
12
1 THE COURT: Well, doesn't Armstrong II specifically
2 contemplate that the one thing that is reviewable is the
3 classification decision of what's presidential and what's not.
4 MR. SCHWEI: Only in very narrow circumstances, which
5 are not present here. The Armstrong II decision creates -- it
6 allows for review of guidelines defining what constitutes a
7 presidential record but only if there is a Federal Records Act
8 or a Freedom of Information Act claim at issue. And here
9 plaintiff, in their brief, concedes both of those points.
10 Number one, plaintiff concedes that it is not challenging any
11 guidelines; and number two, plaintiff concedes that it is not
12 bringing an FAR or a FOIA-based claim. And so for those
13 reasons, it fails under both preconditions for an Armstrong II
14 type of claim. The Armstrong II type of claim would allow
15 someone under the APA to argue that bringing an FAR claim
16 only, not a PRA claim, which is the only statute at issue
17 here, it would allow someone bringing an FAR claim to argue
18 that the guidelines defining what is a federal record are at
19 issue, and in order to determine whether those guidelines are
20 accurate, the Court would also be able to determine whether
21 guidelines defining presidential record are accurate and
22 conform to the statute.
23 THE COURT: Right. I mean, Armstrong II, the holding
24 is much narrower than some of the language in it.
25 Armstrong II was dealing with a situation where presidential

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
13 of 74 Page 87 of
148
13
1 agencies were trying to sweep what are agency records
2 otherwise covered by FOIA and the FAR into the Presidential
3 Records Act and, therefore, narrow access to them; and
4 Armstrong II said, no, you can't do that. But there are
5 snippets in there that this Court has read subsequently as
6 saying, well, the Court was concerned about over classifying
7 in general, and there's a concern that a president could
8 shield all sorts of things that should be open to the public
9 by simply designating them as private.
10 What is the -- what is to prevent a president from
11 frustrating the balance that the statute was trying to strike
12 between his privacy and public access and given the fact that
13 the Court recognizes that just about nothing that a president
14 does is private? Let's say a president kind of maliciously
15 over classifies, what is the remedy?
16 MR. SCHWEI: I think there are three answers to that,
17 Your Honor. The first one and the primary remedy is that it
18 always lies with the archivist and the attorney general, who
19 have the authority if they believe that the president has
20 misclassified something that they can invoke the discretionary
21 enforcement mechanism and pursue recovery of those records.
22 So there's always the possibility for the archivist to act as
23 the check, and that's what Congress chose, and that's the
24 remedy that this Court is bound by. The Congress did not
25 choose to allow private litigants to try to compel the

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
14 of 74 Page 88 of
148
14
1 archivist to pursue those records. Congress left the decision
2 in the archivist's and the attorney general's hands.
3 The second answer --
4 THE COURT: Is that a remedy that the archivist even
5 has available once the president is no longer the president?
6 And what it says in the Presidential Records Act is you have
7 the remedies available to you under the records act. So you
8 go to the records act, and it says you can ask the attorney
9 general to go after an agency. But we're now talking about a
10 former president. Can he go after a former president?
11 MR. SCHWEI: Yes, and that would be a very serious
12 consideration for the archivist to make, but that is exactly
13 what Congress intended, is leaving it to the archivist and the
14 attorney general to decide when it is appropriate under
15 serious considerations in situations like that to seek
16 recovery of those records. It is a very different situation
17 what plaintiff is attempting here, which is a private litigant
18 trying to compel the archivist to sue a former president, and
19 there are good reasons why Congress would leave the decision
20 to experts like the archivist and the attorney general.
21 And the second answer, I think, going back to Your
22 Honor's earlier question about the checks on the president, is
23 that Armstrong I already addressed this issue and said, quote,
24 "Congress presumably relied on the fact that subsequent
25 presidents would honor their statutory obligations to keep a

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
15 of 74 Page 89 of
148
15
1 complete record of their administration." And that's on page
2 20 of our initial brief, that the D.C. Circuit in Armstrong --
3 THE COURT: Given some of the litigation that's
4 occurred subsequently, that may or may not have been a good
5 thing to do.
6 MR. SCHWEI: Well, that was Congress's judgment, which
7 the D.C. Circuit upheld in Armstrong I.
8 And the third check on a president is always Congress,
9 because if Congress believes that a president is wildly
10 misclassifying information, it can pass a law to change the
11 statutory structure or to seize some of those records, which
12 it has done in the past. That's exactly what happened with
13 President Nixon and the Presidential Recordings and Materials
14 Preservation Act, or the PRMPA, which was the predecessor to
15 the Presidential Records Act. Congress felt that there was a
16 real danger of losing some of these documents, and so they
17 passed a new statute seizing those documents.
18 THE COURT: Well, and the statute we're dealing with
19 came after that, so the whole point is to have to avoid that,
20 that's why we have this statute.
21 MR. SCHWEI: Correct. Hopefully, this statute will
22 avoid that through enforcement mechanisms like the archivist,
23 but in the event that it does not, then it is always up to
24 Congress.
25 And a second historical instance of Congress acting is

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
16 of 74 Page 90 of
148
16
1 with records relating to President Kennedy's assassination,
2 which Congress passed a law in 1992 to preserve all of those
3 records and make them publicly available.
4 So even aside from the archivist's own enforcement
5 discretion and the presumed good faith of the president to
6 honor the PRA, there is always the possibility that Congress
7 could act to correct an instance where a president is not
8 following the PRA.
9 THE COURT: Well, what's -- how do you distinguish the
10 American Historical Association case?
11 MR. SCHWEI: Right. That case was really about
12 whether after a president's term ends the president still
13 retains legal authority to make certain classification
14 decisions, and there the archivist had essentially delegated
15 the authority to the former president. And so before the
16 Court in that case was the legality of that agreement. So
17 it's not really a case like this one, where a private litigant
18 is trying to compel the archivist to seize and reclassify
19 certain records. Peterson was simply a case about who the
20 relevant decision maker was, and that issue is not present
21 here because the archivist clearly is the relevant decision
22 maker here and plaintiff is not alleging otherwise.
23 THE COURT: Well, but the Court said it had the
24 authority to look at what the archivist was doing, whether the
25 archivist was doing what it was doing because it was bound by

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
17 of 74 Page 91 of
148
17
1 a contract with the former president or because it was just
2 simply acceding to the judgment of a former president. The
3 Court determined after reading Armstrong I and Armstrong II
4 that there was a little window open for it to look at the
5 classification process and to review what the archivist was up
6 to.
7 MR. SCHWEI: Right.
8 THE COURT: So do you think that that part of the
9 decision was wrong?
10 MR. SCHWEI: The part that read Armstrong I and II and
11 concluded that the Court could enforce a freestanding PRA
12 claim under the APA, yes, we believe that part of the decision
13 was wrong; but I will also note that the Peterson decision
14 involved guidelines. And so still whatever Armstrong I and II
15 might mean or whatever other courts have construed them to
16 mean, it is always in the context of reviewing guidelines
17 defining presidential records, and here that is not what
18 plaintiff is attempting to do, as they concede in their brief.
19 They are attempting to reclassify particular records as
20 presidential records; and even under the Federal Records Act,
21 which by all accounts permits more judicial review, litigants
22 are precluded from challenging a particular classification
23 decision, and the reason why is because that is the
24 administrative enforcement mechanism that Congress chose.
25 They chose to give it to the archivist to choose whether to

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
18 of 74 Page 92 of
148
18
1 reclassify or pursue the recovery of missing records. They
2 did not want private litigants in control of that, which is
3 consistent with the rationale of Heckler v. Chaney, which is
4 that agencies are in the best position to determine how to
5 spend their resources and to chose how to enforce their
6 statutes.
7 THE COURT: Well, if, in fact, the president was not
8 just chatting up Taylor Branch and musing about why he did
9 what he did but they literally kept the tapes running while he
10 went about conducting his business and he is talking on the
11 phone to foreign leaders and he's making appointments, doesn't
12 that sort of take it out of the realm of what you started
13 with, which is this is a personal audio diary? Aren't we
14 really talking about records, or at least in part, that track
15 his official presidency?
16 MR. SCHWEI: Right, so just to be clear, our position
17 is that Your Honor could only reach that issue if Your Honor
18 disagrees with all of our threshold arguments but --
19 THE COURT: I understand that, but it's an interesting
20 issue.
21 MR. SCHWEI: Right. But here those tapes that
22 President Clinton allegedly recorded are the functional -- or
23 NARA rationally responded to the plaintiff and said those
24 tapes are the functional equivalent of a diary or other
25 personal notes because those tapes were not prepared for use
Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
19 of 74 Page 93 of
148
19
1 in official business, they were not communicated throughout
2 the government. They were simply President Clinton's personal
3 record --
4 THE COURT: How does the archivist know what they were
5 without asking President Clinton?
6 MR. SCHWEI: Because based on the facts provided by
7 the plaintiff in the letter, and which are again alleged here
8 in the complaint, NARA responded rationally to the letter by
9 saying, based on the facts that you have provided in your
10 letter, those sound more like personal records rather than
11 presidential records.
12 THE COURT: Even the ones where it is literally a tape
13 recording of him on the phone talking to someone else as
14 opposed to a recording of his expounding on his presidency to
15 a historian?
16 MR. SCHWEI: But that would be no different than if
17 the president sat down and simply wrote in their diary, this
18 is what I said on a telephone conversation earlier --
19 THE COURT: Well, no, one is filtered through
20 someone's memory and perception and the other is a raw tape.
21 MR. SCHWEI: It would be the equivalent of either the
22 post hoc recollection or personal notes, which are also
23 included in the statute, which is the mere fact of
24 contemporaneousness would not take it outside the realm of
25 personal records because, again, the statute recognizes that

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
20 of 74 Page 94 of
148
20
1 its diaries and papers and personal notes, or the functional
2 equivalent thereof, and so personal notes would likely be
3 created contemporaneously but --
4 THE COURT: I'm not focusing on the timing; I'm
5 focusing on the exact duplication, the capturing of the
6 conduct of official business, it is different. The transcript
7 that is being created at this moment is different than the
8 notes he is sitting there taking.
9 MR. SCHWEI: Because the transcript is a public record
10 that will be communicated, you know -- it might be posted on
11 the docket and it is available to everyone, but here the
12 audiotapes were allegedly created solely by President Clinton
13 solely for his use after the presidency, solely to act as
14 memory joggers about what happened during his presidency.
15 THE COURT: How can you say that? How do you know it
16 was prepared solely to be a memory jogger? Aren't you making
17 factual findings about what was in President Clinton's mind?
18 MR. SCHWEI: No. It's based on the facts provided by
19 the plaintiff in their letter. NARA rationally concluded that
20 President Clinton created these solely as memory joggers for
21 his post-presidency.
22 THE COURT: The definition of personal records
23 includes diaries, journals, or other personal notes serving as
24 the functional equivalent of a diary or a journal -- yes --
25 which are not prepared or utilized for transacting government

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
21 of 74 Page 95 of
148
21
1 business -- correct -- but it also says not communicated in
2 the course of transacting government business.
3 Now, isn't pressing the "on" button on a tape recorder
4 while you pick up the phone and talk to a foreign leader
5 communicated in the course of transacting government business?
6 MR. SCHWEI: That was not plaintiff's argument in
7 their letter, and NARA could rationally conclude that it was
8 not communicated in the course of transacting government
9 business, because the focus is not on the -- perhaps the audio
10 of President Clinton's voice, it would be on the records
11 themselves, so the records were not communicated in the course
12 of transacting government business.
13 THE COURT: I think his letter clearly cites those
14 instances where Taylor Branch pointed out that the president
15 kept the tape running while he conducted business, and they
16 specifically asked the archivist to segregate those portions.
17 So I don't see how you can't say that's not in the letter.
18 MR. SCHWEI: But there is no allegation in the letter
19 or the complaint that the records were communicated in the
20 course of transacting government business, because the
21 relevant record is the audiotapes, not the sound of President
22 Clinton's voice as he's speaking.
23 THE COURT: Okay. So the way you parse the statute is
24 he had to take the tape out of the tape recorder after Branch
25 made it and hand it to someone in the course of official

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
22 of 74 Page 96 of
148
22
1 business to make it a presidential record. The fact that it
2 captured the conduct of official business doesn't bring it
3 under the statute.
4 MR. SCHWEI: Right, and there are a couple of further
5 points to add to that, which is that is certainly a reasonable
6 reading of the statute, and NARA would be entitled to
7 deference on that reading, which is something that the
8 plaintiff does not contest here. And the second point is that
9 presidential diaries have historically, and almost certainly
10 will in the future, contain information relating to official
11 business. The president is so busy that it's almost certain
12 that every presidential diary will contain information about
13 what the president did, and that's borne out by President
14 Reagan's diary, which is almost exclusively about official
15 business, and also by the Supreme Court's decision in the
16 Nixon case and in the D.C. Circuit's subsequent decision where
17 they say, simply because a record has official business or
18 historical interest does not take it outside the realm of a
19 personal record.
20 And Congress was very cautious in drafting this
21 protection for personal records. I think that goes to one of
22 our other preclusion arguments about how Congress would not
23 have intended to allow a private litigant to challenge the
24 classification of a particular record as presidential or
25 personal, and one of the reasons why is the history of the

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
23 of 74 Page 97 of
148
23
1 president -- that led up to the passage of the Presidential
2 Records Act. At the time when Congress passed this act, the
3 scope of a president's personal privacy right was still
4 undefined and was still being litigated by President Nixon,
5 and so Congress, when drafting this statute, was very cautious
6 to avoid a potential challenge on personal privacy grounds,
7 which was one of the main arguments that President Nixon made
8 to the Supreme Court and then later to the D.C. Circuit.
9 That's borne out both by this expressed exemption for personal
10 records, as well as the legislative history which talks about
11 why it's important to avoid some of the challenges presented
12 by the Nixon litigation.
13 THE COURT: Well, but all of that goes back to where
14 we started, which is Congress and the Courts recognizing a
15 strong presumption that it should -- it is committed to the
16 discretion of the president to say, this is mine and this is
17 public, and that's why I don't quite understand the way the
18 archivist went about answering the letter. Instead of saying
19 the president designated these as personal, it said, I think
20 they're personal. And once the archivist purports to be
21 acting, making this classification decision, then it seems to
22 be it's making a decision that might be a reviewable agency
23 action.
24 MR. SCHWEI: But it is not reviewable because it is
25 inherently part of the enforcement decision, which is

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
24 of 74 Page 98 of
148
24
1 delegated to the archivist's complete discretion. And so
2 that's why the archivist responded making -- responding with
3 its own independent evaluation and characterization, because
4 the archivist could -- could, theoretically, go after records
5 that it believes are presidential records but not within its
6 custody and control. And so there is a role for the archivist
7 in this statutory scheme, which is what Congress intended, but
8 there is not a role for the Court to evaluate the archivist's
9 decisions within that statutory scheme.
10 THE COURT: It certainly didn't make it clear at any
11 point in its letter that that's what it was doing. There
12 might have been a more helpful way to get this teed up the way
13 you now read it.
14 MR. SCHWEI: But it is not the way I'm reading it, and
15 I think a lot of the confusion is because this entire case was
16 initially teed up as a FOIA case, which is that the letters
17 all were FOIA requests pursuant to the PRA, and so the genesis
18 of those letters led the archivist to respond in the way it
19 did, and then only when this complaint was filed does the
20 plaintiff add these additional dimensions of, oh, the
21 archivist is required to go seize these tapes and provide me
22 access to them. And so the reason why the issues that we're
23 discussing now are perhaps not completely borne out in this
24 letter is because they were never raised in the appeal by
25 plaintiff and, therefore, the archivist had no occasion to

Document 327-1
Document
Entered
14 Filed
on FLSD
03/05/12
DocketPage
02/22/2024
25 of 74 Page 99 of
148
25
1 respond to them, and I think that goes to the core of our
2 final agency action argument, which is that the letter that
3 plaintiff is focusing on here was certainly a final agency
4 action with respect to the FOIA appeal but it did not present
5 the PRA type issues that we are now discussing and, therefore,
6 it did not create binding legal consequences under the PRA,
7 and it did not represent the consummation of the agency's
8 decision-making process under the PRA.
9 THE COURT: Well, it certainly seems final when you
10 look at it. The archivist says, I'm done, go to District
11 Court now. And since now you've just explained that the whole
12 point of making the classification decision in the letter was
13 as a predicate to whether it was going to invoke the
14 enforcement mechanism or not, why isn't the letter a final
15 decision that is not going to invoke the enforcement
16 mechanism? I understand you're saying that even if it is that
17 is not a reviewable decision --
18 MR. SCHWEI: Right.
19 THE COURT: -- but why doesn't the letter clearly say,
20 we're done with this from the archive's perspective?
21 MR. SCHWEI: Because it only says we are done with
22 this with respect to the FOIA claim that was actually
23 presented in the letter. It says, first and most
24 fundamentally, we don't have these audiotapes, so your FOIA
25 claim is over; but oh by the way, here's an additional

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
26 of 74 Page 100 of
148
26
1 explanation about why we do not think -- or we do not think
2 that these -- we probably view these records as personal
3 records rather than presidential.
4 THE COURT: Well, "probably" is a little softer than
5 what they said. It said, "I decide."
6 MR. SCHWEI: They say, based on the facts made
7 available to me, I believe that these are personal records,
8 which is -- which has nothing to do with the actual FOIA claim
9 that was presented.
10 THE COURT: So to tee up the claim that you would
11 ultimately be standing here and telling me is unreviewable,
12 they would have had to write a letter to the archivist and
13 say, please exercise your authority under 2112 to ask the
14 attorney general to go after the records, and the archivist
15 write back and say no, and then they were supposed to sue
16 under the APA and say that was arbitrary and capricious so
17 that you could come back and say it's within its unfettered
18 discretion so you have to dismiss this.
19 MR. SCHWEI: Which is the point of requirements like
20 final agency action, to give the agency the opportunity to
21 actually consider the issues that are going to then be
22 litigated. So it makes sense to give the agency the first
23 opportunity to consider those issues and resolve them before a
24 lawsuit is filed against that agency.
25 THE COURT: So you're telling him that if he thinks he

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
27
1 can make a better case than he's made already for the fact
2 that these might be presidential records and not personal
3 records, he can write another letter asking the archivist to
4 consider invoking the enforcement mechanism and the archivist
5 hasn't already decided whether it would or it wouldn't?
6 MR. SCHWEI: I think that lawsuit would present all of
7 the same --
8 THE COURT: I'm not talking about the lawsuit. Is
9 that letter dead on arrival, or is that a letter he could
10 write?
11 MR. SCHWEI: I can't speak to whether that would be
12 dead on arrival. It's the agency's decision.
13 THE COURT: But your position on final agency action
14 is that that decision has not yet been made?
15 MR. SCHWEI: That the letter at issue here does not
16 represent a final agency action with respect to that decision.
17 THE COURT: Okay. All right. Well, that's
18 interesting.
19 MR. SCHWEI: But that lawsuit, the eventual lawsuit
20 would present all of the same other threshold --
21 THE COURT: That would be dead on arrival, in your
22 view?
23 MR. SCHWEI: Yes, Your Honor.
24 THE COURT: All right. I think you've covered all of
25 your points, but if I interrupted you too early and there is

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
28
1 something else you want to cover, you can do so.
2 MR. SCHWEI: No, Your Honor, I think we've covered all
3 of the issues.
4 THE COURT: Okay. Thank you very much.
5 MR. BEKESHA: Good morning, Your Honor.
6 Since you guys just -- since you just concluded with
7 talking about the agency action, the first letter in response
8 to our FOIA request did not say anything about we don't have
9 the records. It just said these are not presidential records.
10 So we wrote another letter, and in response we received the
11 same response. So we believe it is a final agency action
12 because you had a first letter. We asked for -- you know, we
13 provided more evidence, more guidance on why we believed the
14 tapes were presidential records, and archives came back and
15 still said, once again, in a final agency action, these are
16 not presidential records.
17 THE COURT: But your suit is certainly premised on the
18 assumption that they do not have them; is that correct?
19 MR. BEKESHA: We don't know whether or not they have
20 them. We assume that they don't have them on information and
21 belief because archives has told us they don't have them.
22 THE COURT: And if I'm assuming the complaint to be
23 true for purposes --
24 MR. BEKESHA: Then --
25 THE COURT: -- it's not your allegation that they do

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
29
1 have them and they're hiding them from you --
2 MR. BEKESHA: Correct.
3 THE COURT: -- because you've asked me to order them
4 to go get them?
5 MR. BEKESHA: We've asked you to determine that the
6 records are presidential records; and once --
7 THE COURT: Well, you've asked me to order them to go
8 get them.
9 MR. BEKESHA: To an extent. We asked the Court to
10 require them to assume custody and control of them. We're not
11 asking for seizure. I mean it sounds awful that they think
12 we're asking for this Court to bang down President Clinton's
13 door and seize these audiotapes. I mean archives could make a
14 phone call, they could write a letter. There is nothing in
15 the record stating that President Clinton wouldn't just give
16 them the records. So we're asking that they assume custody
17 and control of them. We're not specifically saying they have
18 to go seize.
19 THE COURT: They can call and ask, but ultimately
20 you're asking them to assume control to get something they
21 don't have.
22 MR. BEKESHA: That's correct, Your Honor.
23 THE COURT: All right. What authority under the
24 statute do they have to do that?
25 MR. BEKESHA: Under the Presidential Records Act, they

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
30
1 are required to assume custody and control of the records and
2 then make them immediately available.
3 THE COURT: They're required to assume custody and
4 control of the presidential records after the president
5 designates which are which?
6 MR. BEKESHA: Possibly.
7 THE COURT: Where do they have the authority to go
8 behind that and demand something else?
9 MR. BAKESHA: Well, first, it is not in the record and
10 no one knows how President Clinton classified these records,
11 nor is that an issue here today. But the second --
12 THE COURT: Why not?
13 MR. BEKESHA: Why isn't it an issue?
14 THE COURT: Right. Aren't we missing an indispensable
15 party here?
16 MR. BEKESHA: We're not because the definition of
17 presidential records doesn't talk about how the president
18 classifies the records; it talks about the substance of the
19 records. So regardless of how the president classifies the
20 records, if it is a presidential record based on substance,
21 they're still presidential records.
22 THE COURT: No, the president is given the specific
23 authority to categorize the records as presidential or
24 personal, and the ones that are personal are filed separately.
25 Then when the presidency ends under the statute, the

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
31
1 presidential records go within the custody and the control of
2 the archivist. So where under that statutory scheme does the
3 archivist have any control over something that has already
4 been separated as personal?
5 MR. BEKESHA: Well, the plaintiff -- we would argue
6 that there is that classification that goes on initially, but
7 that's not -- that's just to help the White House and the
8 president sort out which records is going to be turned over to
9 archives. It's not the final decision. It's not absolute.
10 The definition of a presidential record doesn't include a
11 presidential record is what the president says it is. A
12 presidential record --
13 THE COURT: Well, actually, I think that's exactly
14 what the statute says. Where does the statute give the
15 archivist the authority to decide what a presidential record
16 is?
17 MR. BEKESHA: The archivist -- all the statute says is
18 that the archivist of the United States shall assume
19 responsibility for the custody, control, and preservation of
20 and access to presidential records of that president.
21 Our argument is that these records, as we've alleged,
22 are presidential records and, therefore, archives is to assume
23 custody and control of the records --
24 THE COURT: That's upon conclusion of the president's
25 term of office.
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
32
1 MR. BEKESHA: Correct, and he has been out of office.
2 THE COURT: Right. And that's Section (f).
4 THE COURT: But if you go up to Section (b),
5 documentary materials produced or received by the president
6 and his staff or units or individuals in the executive office
7 of the president shall -- shall -- to the extent possible, be
8 categorized as presidential records or personal records upon
9 their creation or receipt and be filed separately. That's
10 (b). That's during the presidency. It's only after the
11 presidency is over and there is a category -- you know, let's
12 say he had two boxes, he's leaving the White House; personal,
13 presidential, personal, presidential. They get this box, they
14 don't get the other box. This is what they assume custody and
15 control over. So where do they get to classify anything?
16 MR. BEKESHA: Your Honor, if you go to section or
17 subsection (b), it says, shall to the extent practical be
18 categorized. It does not say that if it is not categorized by
19 the president as a presidential record that it is not a
20 presidential record.
21 For example, if you go to the archive's website about
22 the Clinton Library --
23 THE COURT: It says it shall be classified as
24 presidential or personal and filed separately.
25 MR. BEKESHA: Correct. The president is supposed to

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
33
1 categorize his records but that doesn't make it a presidential
2 record; that is just how the president categorizes the record.
3 THE COURT: Well, who exercises the authority to
4 classify?
5 MR. BEKESHA: Archives, in response to two of our
6 letters, states that it has the authority to make that
7 determination.
8 THE COURT: Well, and I'm not sure that it does, and
9 I'm asking you where is that authority found in the statute.
10 There is no reference to presidential versus personal anywhere
11 in the statute except in subsection (b).
12 MR. BEKESHA: No, Your Honor, but the other parts of
13 the statute talk about presidential records --
14 THE COURT: Right.
15 MR. BEKESHA: -- and once -- a presidential record is
16 not because somebody classified it as so but because it fits
17 the criteria. We have alleged that these records are
18 presidential records based on the information and belief
19 listing, as you were speaking about before, you know,
20 conversations with foreign dignitaries, conversations with
21 congressmen, and the recording kept going.
22 So our position is these records are clearly
23 presidential records and they should be made available to the
24 public as quickly as possible.
25 THE COURT: Well, let's say you're right. What

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
34
1 authority do I have to tell the archivist to do anything about
2 it? And what authority do you have to sue, to ask them to do
3 anything about it?
4 MR. BEKESHA: Well, first off, if you look at the
5 enforcement mechanisms that the archives keeps talking about,
6 section 2112(c), as well as the separate provision about the
7 attorney general.
8 THE COURT: Right. And 2112(c) states the archivist
9 may.
10 MR. BEKESHA: Correct, but it also talks about records
11 being deposited with them. It doesn't talk about necessarily
12 enforcement actions to go get records they don't have. I
13 think what 2112(c) talks about is, once archives is provided
14 with personal records, other records, they may treat them as
15 though they were received as presidential records, which is
16 important when they're prior presidents, not as much the case
17 anymore, but I mean prior to the Presidential Records Act, if
18 they received these materials from a former president, what do
19 they do with them. And all 2112(c) talks about is, once they
20 receive them, they can treat them as presidential records.
21 And then with regard to the attorney general
22 provision, that only applies to the Federal Records Act. I
23 mean there is no statutory authority or any case authority
24 talking about --
25 THE COURT: Well, the Presidential Records Act says,

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
35
1 if they think it is in the public interest, they can invoke
2 the remedies available in the Federal Records Act, and then
3 you have to go and read the Federal Records Act to see what
4 they're talking about. But if you're saying neither one of
5 those applies here, where is the statutory authority -- let's
6 put aside the question of whether I can even order them to do
7 it -- where is the statutory authority that they get to call
8 up -- we're not going to go knock on the door now -- and say,
9 President Clinton you've got something that you shouldn't
10 have?
11 MR. BEKESHA: The authority would be under the
12 Presidential Records Act and the idea that the records -- that
13 archives is required to assume custody and control of the
14 records and make them available. If they don't have the
15 records, they cannot make them available to the public under
16 FOIA or under any other provision or in any other way. So the
17 authority rests with what the statute says; that they are
18 required to assume custody and control and then required to
19 make those available to the public.
20 In this instance, if they don't have the records, they
21 will then have an obligation to try to obtain and try to get
22 the records, and that's what we're asking. We're asking for a
23 determination that the records are presidential records and
24 that archives assumes custody and control of the records.
25 THE COURT: But you can only read that section the way
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
36
1 you're reading that section if you read that section without
2 reading the rest of the statute, that something happens before
3 the end of the presidency, and what happens before the end of
4 the presidency is the president classifies his records.
5 MR. BEKESHA: Well, we don't know -- that's the other
6 problem. We don't know what the president did. We do not
7 know if President Clinton classified these records as personal
8 records or as presidential records. Archives doesn't know.
9 Archives, in the letter, assumed that these records were
10 classified one way, but they don't know. I mean there's --
11 THE COURT: So why aren't -- are we missing a party
12 here? American Historical Association sued George Bush.
13 MR. BEKESHA: We're challenging -- we don't think
14 President Clinton is a necessary party because we're
15 challenging the determination by archives; and archives, at
16 that time, didn't reference President Clinton. They said, as
17 this Court has already stated, they said based on information,
18 I determine.
19 Now, there may be information that President Clinton
20 has that he may be able to provide to the Court to clarify how
21 he classified the records, what happened to the records, maybe
22 even where the records are; but in the motion to dismiss, that
23 is not an issue. Maybe we need to take the next step and
24 see -- have very limited discovery on that issue if the idea
25 of the classification is important, let the case go forward at

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
37
1 this point, and then figure out what the next step is.
2 Limited discovery of some sort may resolve those issues.
3 THE COURT: Well, what do you do with the holding in
4 CREW vs. Chaney that there is no cause of action against the
5 archivist under this statute?
6 MR. BEKESHA: We would turn the Court's attention to
7 the Judicial Watch v. Commerce Department case about -- which
8 was FACA, so slightly different -- but how -- you know, the
9 prevention of making this determination prevents any possible
10 remedy, any action. I mean this relies solely on the
11 determination that these were not presidential records.
12 Because they're not presidential records, archives argues, you
13 know, it's outside the scope of FOIA. There would be
14 no -- because it is outside the scope of FOIA, we couldn't
15 bring a FOIA lawsuit against the Court -- I'm sorry -- against
16 archives. So we're stuck. We have no way to challenge their
17 determination. And so we believe in this instance, which is
18 different circumstances, that APA allows, and this Court has
19 authority, to make a determination under the APA about the
20 decision that archives made in this instance.
21 THE COURT: What is the decision that you're asking me
22 to review? The failure to invoke the enforcement mechanisms
23 or the classification?
24 MR. BEKESHA: Well, the determination that these
25 records are not presidential records.

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
38
1 THE COURT: And again, why -- why is there a cause of
2 action against them? How do you distinguish CREW v. Chaney?
3 What the Court found in that situation is she could mandamus
4 the vice president, but there wasn't really anything she could
5 do about the archivist. Why isn't that the answer here?
6 MR. BEKESHA: If I recall correctly, CREW was -- CREW,
7 very similar to Armstrong, was during the presidency.
8 THE COURT: Right.
9 MR. BEKESHA: President Clinton is no longer in
10 office. These are different circumstances. There is -- a lot
11 of those issues talk about separation of powers and courts and
12 even Congress interfering with the president's day-to-day
13 activities while the president or vice president is in office.
14 We don't have that issue here.
15 THE COURT: Right. What she said in CREW is, at this
16 point before the presidency is over, they don't have any
17 authority. They don't get to classify, the vice president is
18 doing all the classifying. So there is nothing in the
19 statute, there is no statutory hook for me to hold them
20 responsible. So she lets them out of the lawsuit.
21 Here you're saying the presidency is over, but I see
22 even less of a statutory hook at this point because they get
23 what's given to them at the end of the presidency. They don't
24 get anything else under the statute, and you're saying there's
25 something they didn't get that was misclassified and I want

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
39
1 it.
2 MR. BEKESHA: Well, we don't know if they're
3 misclassified. All we know is that archives does not have
4 these audiotapes at this moment. And based on their letters,
5 they made a determination that they don't have the audiotapes
6 because they're not presidential records. That's all that's
7 before the Court right now. You know, we don't know if they
8 may have received the audiotapes at one point. We don't know
9 that. They haven't alleged that they never received them;
10 just that they don't have them right now. They may have been
11 reviewed by archives. We don't know. We've alleged that
12 these are presidential records, that they have a requirement
13 to assume custody and control of these records, that they have
14 a responsibility and obligation to make these records
15 available to the public. Their response, archives' response
16 was they're not presidential records, you don't get them, and
17 that's what we're stuck with, that's what we're faced with.
18 THE COURT: Well, the Presidential Records Act,
19 according to Armstrong I, accords the president virtually
20 complete control over his records during the term of his
21 office. And the archivist and Congress can't even veto him if
22 he actually starts disposing of records, much less saying, you
23 know, this is private.
24 How do you square that language with your claim that
25 the decision to classify these records is subject to judicial

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
40
1 review?
2 MR. BEKESHA: Well, both the Armstrong cases were
3 extremely focused and they were during the presidency and now
4 we're after the presidency; but how we view Armstrong was the
5 creation, the management, and disposal decisions; and we're
6 not addressing any of the creation, management, or disposal
7 decisions made by President Clinton.
8 THE COURT: But the only classification --
9 MR. BEKESHA: He created --
10 THE COURT: -- decision in Armstrong II said the Court
11 had to be able to review was the decision essentially to bring
12 things under the Presidential Records Act that don't belong
13 there as opposed to excluding something from the Presidential
14 Records Act that you think belongs there. What right do you
15 have as a private party to say, I am not particularly happy
16 with the balance that has been struck under the Presidential
17 Records Act here?
18 MR. BEKESHA: Well, the Armstrong cases were during
19 the presidency; and although I won't concede that point, I
20 would say that under Armstrong, if President Clinton was still
21 in office and making these audiotapes, at this point, under
22 Armstrong, we may not be able to go in and ask the Court to
23 deal with the creation, the management, and the disposal of
24 the records. But these are different times. We know these
25 records exist. We know they've been created. We don't know

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
41
1 how they were necessarily managed during the presidency. We
2 don't know what happened to them when President Clinton's term
3 ended. All we know is that archives does not have the records
4 and they don't believe they are presidential records, and
5 we're trying to figure that out. We're asking the Court to
6 make a determination based on the evidence provided that these
7 records are presidential records, and once they're
8 presidential records, other obligations take effect.
9 THE COURT: How can I make that decision without the
10 information that would really only be in the president's head,
11 what they were created and utilized for?
12 MR. BEKESHA: Well, that's the problem. Archives
13 thinks they can still make that determination. They, in fact,
14 make that determination, so we're challenging their
15 determination. We're challenging that their decision was
16 arbitrary and capricious because they never reviewed the
17 records, they never asked President Clinton about the records.
18 They looked at our letter and said, no, we don't think these
19 are presidential records, they're not subject to FOIA, so
20 we're challenging that decision.
21 THE COURT: Well, if a Court could review the decision
22 of presidential versus personal, how would it go about doing
23 that? What is the standard of review?
24 MR. BEKESHA: Well, first, the standard of
25 review -- the Court would be reviewing the determination. It

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
42
1 wouldn't -- and once you get to that point --
2 THE COURT: Right. But am I supposed to defer? Do I
3 get to do it de novo? It depends on what it was prepared or
4 utilized for. How would I make that determination without
5 input from the president? And doesn't the lack of any mention
6 of any of this in the statute sort of point to the notion that
7 once it's done, it's done?
8 MR. BEKESHA: I don't think so. If once it's done,
9 it's done, the president could classify or not classify, do
10 nothing, and then take all his papers and records with him on
11 the last day. And archives would say, oh, well, we can't do
12 anything about that. We don't believe that was the intent
13 that Congress had in mind.
14 THE COURT: All right. Well, let's say President
15 Clinton took everything with him, and not just these tapes --
16 MR. BEKESHA: Uh-huh.
17 THE COURT: -- and there was essentially an abuse of
18 the Presidential Records Act, and it was a matter of history,
19 he held a press conference and he said, I am taking every
20 single piece of paper in the White House with me, so there,
21 and he leaves. What can the archivist do under the statute?
22 MR. BEKESHA: Under the statute, the archives is
23 required to assume custody and control. Exactly how the
24 archives goes about doing that is part of the discretion that
25 archives has. But we're not challenging the enforcement

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
43
1 mechanism of how they get somewhere. If they're trying to get
2 C -- if we're at point A and they're trying to get to point D
3 and B and C is in the middle, we're not challenging whether
4 they choose point B or whether they choose point C, whether or
5 not they file a court action, have the attorney general file a
6 court action, whether they try to physically seize the
7 records, make a phone call. All we're saying is they have a
8 requirement to do so. How they go about doing it is for the
9 archives to choose, but they're required to do so.
10 THE COURT: And you get all of that out of the
11 sentence in Section (f)?
12 I mean doesn't the fact that the Presidential Records
13 Act itself specifies the administrative enforcement remedy
14 available under the Federal Records Act indicate that that is
15 the enforcement mechanism and the only enforcement mechanism?
16 MR. BEKESHA: We don't believe so, Your Honor. I mean
17 also --
18 THE COURT: What does "assume custody and control"
19 mean in your view? What do you want them to do?
20 MR. BEKESHA: Because they are also required to make
21 them available to the public, "assume custody and control"
22 would be to take control of the records or have somebody else
23 take control of the records, review the records, because if
24 there is personal information --
25 THE COURT: How do they take control? He's got them.

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
44
1 I have them. He issues a press release, I've got them. I'm
2 taking them to New York with Buddy. Then what? What are they
3 supposed to do?
4 MR. BEKESHA: As I said, there are many options.
5 They --
6 THE COURT: Tell me one.
7 MR. BEKESHA: One option is they can call President
8 Clinton and ask. There is nothing in the records --
9 THE COURT: Okay. He says no. Now what?
10 MR. BEKESHA: They write a nice letter. They maybe
11 use one of these enforcement mechanisms. Maybe they try
12 something else. I mean the idea is, also, you know, Section
13 2202 says, the United States shall reserve and retain complete
14 ownership, possession, and control of presidential records.
15 Under the Presidential Record Act, these records are United
16 States property. They are supposed to stay within the United
17 States government. So if you take everything combined and you
18 take the Public Records Act and you look at all those sections
19 as a whole, archives is required to have custody and control
20 of presidential records because they're United States
21 government property and they're supposed to make them
22 available to the public, you know, 5 years, 10 years,
23 12 years, 20 years, if its designated as such, and they're
24 supposed to process them through FOIA, and if they process
25 them through FOIA, they can segregate. We don't dispute that

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
45
1 some of these records could be more of an audio diary; but as
2 a whole, they're presidential records and archives is required
3 to process them as such.
4 THE COURT: Well, what is your response to the Court's
5 holding in the CREW opinion that there is no private right of
6 action under the PRA?
7 MR. BEKESHA: We have brought this claim under the
8 APA.
9 THE COURT: Well, you've brought it under both. Are
10 we only talking about APA?
11 MR. BEKESHA: The decision whether or not these are
12 presidential records is our focus.
13 THE COURT: Okay.
14 MR. BEKESHA: So our focus is the APA and the
15 determination that archives made. Where Presidential Records
16 Act and where FOIA comes into play is that the decision was
17 based on the Presidential Records Act; but the focus -- our
18 claim, our argument is solely on the APA, that it was -- that
19 the determination was arbitrary and capricious and that these
20 records are presidential records.
21 THE COURT: Well, why is it arbitrary and capricious?
22 If you say the final agency action is the letter saying, in my
23 opinion, based on the record before me, these are private, and
24 you say that that is a final decision, and you say that that
25 is a reviewable decision, and that's a decision that the

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
46
1 archivist was entitled to make under the statute -- which I'm
2 not sure about, but let's assume you're right about all those
3 things and they made it, and I agree with you that it is
4 final -- what am I measuring it against to find it to be
5 arbitrary and capricious? If I'm using the APA, doesn't that
6 mean that I have to give them deference?
7 MR. BEKESHA: There is deference involved but -- and I
8 don't want to go ahead and read our five-page letter -- but if
9 the Court looks through the five-page letter that we wrote on
10 appeal --
11 THE COURT: No, I read it.
12 MR. BEKESHA: -- we pretty clearly establish that
13 these were presidential records. We talk about all the
14 instances that these are presidential records, about
15 conversations President Clinton had with foreign dignitaries,
16 with congressmen, with senators, talking about policies,
17 trying to determine who is going to be his next secretary of
18 state, I believe. These are all conversations about policy,
19 even in some instances where Taylor Branch went off to a
20 foreign country and came back and reported to the president
21 about what he saw there. These are all discussions that
22 aren't like a diary. A diary is something you usually write
23 at the end of the day, at the end of the week in your point of
24 view of what is -- of what occurred. This is actually what
25 occurred as it was occurring. It's no different than, you

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
47
1 know -- this is very similar -- counsel was talking about this
2 idea --
3 THE COURT: Let's say you're right because I think
4 there is something to at least the portions of the tapes where
5 he's doing something else other than just chatting with Taylor
6 Branch. Taylor Branch is watching him do his job. It's a
7 record of his doing his job. That still doesn't necessarily
8 fall within the definition because personal talks about what
9 you do with the record and whether you use the record in the
10 course of your government business. And I don't believe there
11 is anything in your letter that suggests he used the
12 recordings for anything other than personal purposes. But
13 let's say you are right and he -- after he got off the
14 phone -- took his tape with Taylor Branch and sent it to his
15 chief of staff and said, listen to this great conversation I
16 just had with the foreign leader, wasn't I brilliant, and do
17 you think I made the right decision or should I call them
18 back? So let's say some portion of them fall within
19 presidential records. Why is your injury redressable? Why
20 doesn't that just sort of end the lawsuit?
21 MR. BEKESHA: Well, under -- going back to the
22 Judicial Watch vs. Commerce case, the FACA case where it
23 talked about standing in the FACA context, in there -- I mean
24 I think we fall within there. Because the records were
25 determined not to be presidential records, we fail

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
48
1 to -- archives doesn't have an obligation to process the
2 records; and because of that, we don't have access to the
3 records. I think -- if the system worked and you went through
4 the checklist, once they're determined presidential records,
5 archives assumed custody and control of the records, and then
6 they make them available. Because the determination was these
7 were not presidential records, therefore they fall outside the
8 context of FOIA, we don't get the records, and that's our
9 injury. Our injury is that Judicial Watch as well as --
10 THE COURT: But Judicial Watch said that the defendant
11 in that case was subject to statutory obligations under the
12 particular statute that were within the agency's power to
13 discharge.
14 MR. BEKESHA: Yes.
15 THE COURT: And what they're saying is it is just
16 simply not within our power to do what it is you want us to
17 do, to assume custody and control of the records, and you keep
18 repeating that phrase, and I keep asking you what does that
19 mean, what do they have the statutory authority to do other
20 than exercise their unfettered discretion to ask the attorney
21 general to try to go get them, and you haven't pointed to
22 anything in the statute that they have the authority to do,
23 and I think that's kind of where this sits at the moment.
24 What enforcement mechanism, what thing, what power can
25 they exercise under the statute that I can order them to do

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
49
1 that makes your injury redressable?
2 MR. BEKESHA: Once the records are determined to be
3 presidential records, there is an obligation to assume custody
4 and control of them. How -- and I will just say, once again,
5 how they go about doing that -- Judicial Watch is not
6 challenging how. We're not challenging whether they use one
7 enforcement mechanism or another. The statute --
8 THE COURT: I just want you to tell me what they have
9 other than the one that they have that they don't have to do.
10 Under the APA, for instance, I can only order an
11 agency to do what it has to do.
12 MR. BEKESHA: Yes.
13 THE COURT: And under the statute, they don't have to
14 go after misclassified records. They can choose to go after
15 misclassified records. And so that's why I want to know what
16 is it that you see that they have the statutory power to do
17 that they also have the statutory obligation to do.
18 MR. BEKESHA: We believe they have -- I keep repeating
19 myself.
20 THE COURT: To assume custody and control of their
21 records?
22 MR. BEKESHA: Yes, I sound like a broken record, but
23 this obligation will exist. You know, once a determination is
24 that they are presidential records, this obligation is
25 created; and once that obligation is created, it sets

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
50
1 up -- there may be other options -- Judicial Watch is harmed
2 by that determination because it ends everything. It's final,
3 it's determinative, and there is no redressability -- I mean
4 there is no other way to challenge this determination. And
5 once the determination is made that's presidential records, it
6 opens the door. It leaves for the possibility that archives
7 will go out and get the records. It leaves the possibility
8 that they'll use one of their enforcement mechanisms or they
9 may use other avenues to get them.
10 We're challenging the determination. We're not
11 challenging archives' failure to bring an enforcement action.
12 We didn't get there. That's not before the Court. What's
13 before the Court is --
14 THE COURT: Why isn't that what should happen next?
15 MR. BEKESHA: If this Court agreed and found that the
16 records were presidential records and ordered archives to, to
17 the best of it abilities, seek to assume custody and control
18 of the records, it would bring us to a next step. If archives
19 didn't use their -- you know, all their powers to the best of
20 their ability, there would be --
21 THE COURT: We're talking about very mushy
22 unenforceable orders at this point. I mean I just don't think
23 I could issue an order that says try your best. Then how
24 would anybody be able to ascertain whether they've complied.
25 MR. BEKESHA: If archives did nothing, they wouldn't

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
51
1 be complying. If they asked President Clinton to turn over
2 the records and he did, they would be complying. It opens up
3 the door for Judicial Watch to be redressed, to have the
4 records determined to be presidential records and then
5 properly processed as presidential records are supposed to be.
6 Once again, you know, archives can pick and choose how they
7 can go about assuming custody and control, but they have to do
8 so under the statute.
9 THE COURT: But to me the statute only has them assume
10 custody and control of what has been designated by the
11 president as presidential records. Earlier in the statute
12 it's the president who exercises the authority to classify
13 them one way or the other and then they get what is
14 presidential, they don't get what's personal. And so you're
15 basically asking me to enforce the definition section as
16 opposed to asking me to enforce the section that tells under
17 which the archivist has authority one way or the other.
18 MR. BEKESHA: But once the definition section is
19 enforced, then the other sections fall into place. If a
20 record is determined to be a presidential record, archives
21 can't sit back and do nothing. I mean these are United States
22 government property. They are supposed to be made available
23 to the public. So the definition is important. The
24 determination of what is a presidential record is important
25 because it leads to everything else.

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
52
1 THE COURT: But the statute doesn't include a private
2 right of action. The statute doesn't include a judicial
3 review provision. Doesn't all of that suggest that
4 misclassified records are only subject to the
5 enforcement -- the one mechanism that is set forth in the
6 statute, which is that they can exercise their discretion to
7 go ask the attorney general and Congress to do something about
8 this?
9 MR. BEKESHA: No, but it also leaves open the
10 opportunity to bring an APA claim for that because there is no
11 remedy, there is no avenue or vehicle to bring such a
12 challenge specifically under the PRA, and that's why we're
13 focusing on the determination made by archives in its two
14 letters.
15 THE COURT: Well, they say that the determination they
16 make is essentially do we invoke the enforcement mechanism or
17 not and that that discretion is so broad that it is
18 unreviewable. What is your response to that?
19 MR. BEKESHA: That they didn't make a determination
20 about the failure to bring an enforcement action; they made
21 solely a determination about whether or not these records are
22 presidential records, and their determination was that it was
23 not. There is nothing in their determination saying -- under
24 their theory, they could have said, these are presidential
25 records but we don't invoke the enforcement mechanism. That

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
53
1 would have been a different determination and something else
2 we may have a possibility -- I don't know -- to challenge, but
3 that wasn't their determination. Their determination was only
4 is this -- are these records presidential records.
5 THE COURT: And what was the source of their authority
6 to make that determination at all?
7 MR. BEKESHA: Their source would be the PRA and
8 their -- the overall objective to make presidential records
9 available to the public.
10 THE COURT: What part of the PRA accords the archivist
11 as opposed to the president any authority whatsoever to
12 classify things as presidential versus personal? Isn't that a
13 decision committed to the president under the act?
14 And I agree with you, the letter purports to make a
15 decision --
17 THE COURT: -- and I find that troubling, and I see
18 why you took the approach you took in light of receiving the
19 letter you received. But where do they have the authority to
20 do any classifying or reclassifying?
21 I mean initially I thought this lawsuit was about your
22 asking them to sort of reclassify. Now you're saying they
23 went ahead and classified and I think they're wrong and that
24 is a reviewable agency action --

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
54
1 THE COURT: -- and that has some force to it. But I
2 don't know that they had the power to do that at all anywhere
3 under this statute. I don't see anywhere where Congress gave
4 the archivist the opportunity to decide what of the
5 president's is personal or not.
6 MR. BEKESHA: During his term there is no -- I mean
7 they have no -- archivist has no authority during the
8 president's term to make a classification. That is solely up
9 to the president.
10 THE COURT: Well, after his term, how does that
11 change? What's personal is personal. What he used it for,
12 what he thought it was for, what he created it for, and that's
13 why it says, under Section (b), they should be categorized as
14 presidential or personal upon their creation or receipt.
15 MR. BEKESHA: Yes. The president is required to
16 classify the records, if possible. But it does not -- it does
17 not say that only those records classified by the president
18 are presidential records. They're just saying he's supposed
19 to classify. He holds one sheet of paper up, he puts one in
20 one box, one in the other. That's what his requirement is.
21 If he takes, for example, his daily calendars or maybe his
22 notes on his speeches, a speech that he just -- one of his
23 speeches and puts that in the personal records box, that
24 doesn't make it a personal record, that just means that
25 President Clinton classified it as a personal record.

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
55
1 THE COURT: Right. And Armstrong I says, while he's
2 doing that, there is no judicial review whatsoever. What he
3 does he has unfettered discretion to. We're going to trust
4 him to do it right. Congress trusted him to do it right. He
5 has unfettered discretion to do it, though the archivist is
6 allowed to raise his hand and say, Mr. President, how about
7 this, how about that, but very, very limited authority to veto
8 what he is doing. Even literally shredding presidential
9 records, he may dispose of presidential records, and there is
10 nothing we can do about it.
12 THE COURT: And that, it seems to me, is even more
13 troubling than what you're talking about. If he can do that,
14 why can't he do this?
15 MR. BEKESHA: He could classify them as such and maybe
16 he did and maybe he didn't. We don't know. But it is still
17 under the obligation -- but archives is still under the
18 obligation to take possession of presidential records.
19 Now, they could -- Congress could have easily in the
20 definition of presidential records said a presidential record
21 is this and list what makes it a presidential record and then
22 said, and as classified by the president. But they didn't.
23 They didn't focus on the president's classification in the
24 definition of a presidential record. They focused on the
25 substance.
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
56
1 THE COURT: Well, but they do in Section 2203
2 specifically talk about the classification process taking
3 place.
4 MR. BEKESHA: Well, that talks about the management
5 and custody of the records. I mean that's the section it is
6 in, section on how to manage these. Congress was
7 concerned that --
8 THE COURT: Well, as I said, Section (b) is the only
9 section I could find that talks about personal at all other
10 than the definition section, and so they have the
11 categorization of presidential versus personal taking place
12 during the presidency, which makes perfect sense.
13 MR. BEKESHA: Right, but they didn't need to say
14 personal records there. They could have just said, if it
15 falls in the presidential. I mean if it is not a presidential
16 record --
17 THE COURT: Right.
18 MR. BEKESHA: -- then it is a personal record.
19 THE COURT: Right. And so that seems to vest
20 exclusive authority for saying this is personal on the person
21 who would know.
22 MR. BEKESHA: It gives him that ability to classify at
23 that time, but it doesn't mean that something he classifies at
24 that time is, in fact, a personal or a presidential. It just
25 means he needs to classify it to make it easier for management

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
57
1 during his term and then after his term for archives. If the
2 president didn't classify and didn't manage his records, if he
3 didn't think about it, if there was no system set up, then
4 you'd have a problem. At the end of the term, you'd have a
5 big stack of papers, one page personal, one page presidential,
6 and archives would have to sort it out and figure it out. So
7 Congress here was trying to make it easy for archives. They
8 were trying to say the president needs to classify records.
9 Just because he classifies it doesn't mean it's a presidential
10 record. We're also not asking for archives to go on a fishing
11 expedition and try to find records that may or may not exist.
12 We informed archives that these records exist. Based on the
13 letters, it almost seems to suggest that archives -- I'm
14 sorry -- not letters, audiotapes -- that these audiotapes
15 exist. So we're not asking for a fishing expedition.
16 THE COURT: Well, I feel like your entire theory works
17 if I ignore Armstrong I completely, and you say I can ignore
18 Armstrong I completely because that was during the presidency,
19 and Armstrong II is during the presidency, and CREW is during
20 the presidency, and American Historical Association is
21 different. Are you hanging your hat on anything other than
22 Judicial Watch v. Commerce, or am I writing on a blank slate
23 here?
24 MR. BEKESHA: None of these issues were before the
25 Court. And that happens. In Armstrong it was the first time

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
58
1 that it was before the Courts.
2 THE COURT: I just want to know if I'm right that
3 you're saying I'm writing on a blank slate?
4 MR. BEKESHA: Yes.
5 THE COURT: Okay.
6 MR. BEKESHA: Yes. We don't think the current case
7 law discusses this issue at all, and that happens. And so
8 yes, it's a blank slate with in mind what the PRA says and the
9 obligations that archives has.
10 THE COURT: Okay. So let's go back to my original
11 question: What is the standard of review to be applied to a
12 classification decision? Are you saying arbitrary and
13 capricious because I'm getting at it through the APA?
14 MR. BEKESHA: Yes. I mean that's our argument; that
15 the determination was arbitrary and capricious. How to review
16 the audiotapes -- I mean it would be a -- I mean it's
17 difficult to answer.
18 THE COURT: It's an important question --
19 MR. BEKESHA: It is, and I appreciate that. I just --
20 thinking, you know --
21 THE COURT: You're telling me, Judge, you absolutely
22 get to review it. And I'm saying, okay, what's the --
23 MR. BEKESHA: Right. I mean, it would be arbitrary
24 and capricious because it is under the APA. Our claim is that
25 they acted arbitrarily and capriciously, and then you would

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
59
1 take into account the facts alleged and whether or not their
2 decision was merited based on the facts presented to them in
3 the letters and also in the complaint.
4 THE COURT: Well, and am I giving them Chevron
5 deference because they're the agency given the authority to
6 implement this statute under the Presidential Records Act?
7 MR. BEKESHA: I think because the decision was so
8 arbitrary it doesn't matter what standard you review it under.
9 The letters clearly establish that these records are
10 presidential records; that even with some deference, which the
11 agency doesn't even -- I mean they don't even discuss the
12 facts. They just say these sound like personal diaries. They
13 don't even -- it seems based on the letters that they didn't
14 even think about, well, if this is one end of the
15 conversation, you know, is that recordings made in the Oval
16 Office? Those would be presidential records but why not
17 these. Oval Office operations helped set up the meetings.
18 They were intimately involved in the recordings. They set up
19 the appointments with Taylor Branch. They escorted him
20 sometimes into the Oval Office, sometimes into other rooms in
21 the White House.
22 THE COURT: Well, let's say you're right about every
23 single step of this: They were wrong. I have the authority
24 to tell them that they were wrong. I have the authority to
25 say assume custody and control. And they make a phone call,
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
60
1 write a nice letter. They even head up to Observatory Circle
2 and knock on the door. And he says, they're my records, and
3 he closes the door. How is your injury something we can
4 redress?
5 MR. BEKESHA: The injury there would be redressable
6 because by making a determination that the records are
7 presidential records, it falls under FOIA, and there would
8 be -- the FOIA statute would kick in.
9 THE COURT: FOIA only has to give you what they have.
10 MR. BEKESHA: Yes, unless it's in the possession of
11 another agency or --
12 THE COURT: He's not an agency.
13 MR. BEKESHA: It could be -- and I haven't --
14 THE COURT: He is a private citizen.
15 MR. BEKESHA: He is a private citizen, but he also
16 holds -- the former president has some type of office.
17 THE COURT: Are you saying that my order to them, go
18 get them, binds him to give them to them when they knock on
19 the door --
20 MR. BEKESHA: No, your order would not bind them.
21 However, they are --
22 THE COURT: So even if you win, what do you get?
23 MR. BEKESHA: We get the possibility to discuss that
24 when the time comes. I mean we've been redressed -- I mean
25 the injury of the determination stops the proceedings. I mean

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
61
1 it stops. We win by now -- we now have --
2 THE COURT: The opportunity to sue President Clinton,
3 which you haven't elected to do so far?
4 MR. BEKESHA: We haven't elected to do so, so far, but
5 that could be a possibility, or the possibility could be that
6 he turns over the records. It just opens the door to having
7 many -- redressability could be by simply having them declared
8 presidential records and then the ability to have the further
9 process under FOIA. You know, there are many different
10 instances where an agency could go out and get records under
11 FOIA.
12 THE COURT: This is not one of those. This just does
13 not fall within -- if they don't have them, FOIA doesn't help
14 you.
15 MR. BEKESHA: Most likely, yes.
16 THE COURT: Okay. All right. Is there anything else
17 that you wanted to say that I took you off your outline and
18 you didn't get to say?
19 You can take a minute.
20 MR. BEKESHA: Thank you.
21 I think we covered everything.
22 THE COURT: All right. Thank you very much.
23 MR. BEKESHA: Thank you very much.
24 THE COURT: All right. Briefly, I think I understand
25 all the arguments you made initially, and I don't think we

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
62
1 need to repeat them. The one thing that we haven't really
2 talked about is the only thing he talked about, which is the
3 mandatory nature of Section (f), where it says the archivist
4 shall assume responsibility for access to presidential
5 records, and he says presidential records is defined in the
6 definition section, these meet the definition, therefore you
7 do have a duty that is enforceable by this Court, reviewable
8 by this Court. What do you say to that?
9 MR. SCHWEI: We have two responses to that: The first
10 is that, as Your Honor alluded to, we argue that whatever that
11 duty within Section 2203(f) is, it only applies to the
12 specific collection of presidential records designated by the
13 president as Section 2203(b) contemplates, which there are two
14 pre-existing collections that get -- one gets transferred at
15 the end of the term; personal records do not.
16 The second argument is that even the language of
17 2203(f) does not actually impose a duty to, quote, assume
18 custody and control. What 2203(f) actually says is, quote,
19 to assume responsibility for assume custody and control, which
20 is very different, because as the D.C. Circuit stated in the
21 American Friends Service Committee v. Webster case, when a
22 statute says -- a statute there said NARA shall have
23 responsibility to conduct inspections of records; and the
24 D.C. Circuit, in that case, stated NARA does not have a
25 mandatory duty to conduct inspections. NARA has the

Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
63
1 responsibility and the prerogative, but it is not the type of
2 mandatory duty and certainly not the type of specific
3 unequivocal command that is required under the APA for this
4 Court to order NARA to actually comply with that section.
5 THE COURT: Is that cited in your reply, the case you
6 just cited to me?
7 MR. SCHWEI: Yes, Your Honor.
8 THE COURT: Okay. All right. I think you said you
9 had two answers. That was the second answer. The first
10 answer was Section (b) --
11 MR. SCHWEI: Correct.
12 THE COURT: -- that he puts them in the two boxes.
13 All right. Is there anything else you want to say in
14 response to what he said?
15 MR. SCHWEI: I think we're content to rest on our
16 briefs, Your Honor.
17 THE COURT: Okay. Thank you very much.
18 I very much appreciate the quality of the arguments
19 this morning. It is a very interesting case. I think, based
20 upon everything I've read, that we are writing on a relatively
21 blank slate, which makes it interesting, but it also means I
22 need to think about it, and I'm going to take it under
23 advisement. And thank you very much.
24 (Proceedings adjourned at 11:31 a.m.)
25
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
64
1 CERTIFICATE OF OFFICIAL COURT REPORTER
3 I, Patricia A. Kaneshiro-Miller, certify that the
4 foregoing is a correct transcript from the record of
5 proceedings in the above-entitled matter.
8 ---------------------------------- -----------------------
9 PATRICIA A. KANESHIRO-MILLER DATE
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
65
1 34:22, 34:25, 35:2, 50:15 41:16, 45:19, 45:21, 12:14, 12:23, 12:25,
35:3, 35:12, 39:18, agreement [1] - 16:16 46:5, 58:12, 58:15, 13:4, 14:23, 15:2,
40:12, 40:14, 40:17, ahead [2] - 46:8, 53:23 58:23, 59:8 15:7, 17:3, 17:10,
10 [1] - 44:22 42:18, 43:13, 43:14, allegation [2] - 21:18, archive's [2] - 25:20, 17:14, 38:7, 39:19,
11:31 [1] - 63:24 44:15, 44:18, 45:16, 28:25 32:21 40:2, 40:4, 40:10,
12 [1] - 44:23 45:17, 59:6 allegations [3] - 4:18, archives [48] - 6:20, 40:18, 40:20, 40:22,
1992 [1] - 16:2 act [8] - 7:6, 13:22, 5:14, 6:6 7:10, 28:14, 28:21, 55:1, 57:17, 57:18,
14:7, 14:8, 16:7, allege [1] - 7:18 29:13, 31:9, 31:22, 57:19, 57:25
2 20:13, 23:2, 53:13 alleged [12] - 4:8, 4:9, 33:5, 34:5, 34:13, arrival [3] - 27:9,
acted [1] - 58:25 5:17, 9:6, 9:8, 9:19, 35:13, 35:24, 36:8, 27:12, 27:21
acting [2] - 15:25, 19:7, 31:21, 33:17, 36:9, 36:15, 37:12, ascertain [1] - 50:24
20 [2] - 15:2, 44:23
23:21 39:9, 39:11, 59:1 37:16, 37:20, 39:3, aside [3] - 6:23, 16:4,
2112 [2] - 9:6, 26:13
action [33] - 5:23, 6:1, allegedly [2] - 18:22, 39:11, 41:3, 41:12, 35:6
2112(c [5] - 8:19, 34:6, 42:11, 42:22, 42:24,
6:7, 6:8, 6:23, 9:8, 20:12 assassination [1] -
34:8, 34:13, 34:19 42:25, 43:9, 44:19,
9:12, 9:13, 9:23, alleging [1] - 16:22 16:1
2202 [1] - 44:13 45:2, 45:15, 48:1,
10:7, 10:11, 10:25, allow [4] - 12:14, Association [3] -
2203 [1] - 56:1 11:3, 23:23, 25:2, 48:5, 50:6, 50:16,
12:17, 13:25, 22:23 16:10, 36:12, 57:20
2203(b [1] - 62:13 25:4, 26:20, 27:13, 50:18, 50:25, 51:6,
allowed [1] - 55:6 assume [26] - 28:20,
2203(f [3] - 62:11, 27:16, 28:7, 28:11, 51:20, 52:13, 55:17, 29:10, 29:16, 29:20,
allows [3] - 8:20, 12:6,
62:17, 62:18 28:15, 37:4, 37:10, 57:1, 57:6, 57:7, 30:1, 30:3, 31:18,
37:18
38:2, 43:5, 43:6, alluded [1] - 62:10 57:10, 57:12, 57:13, 31:22, 32:14, 35:13,
4 45:6, 45:22, 50:11, almost [4] - 22:9, 58:9 35:18, 39:13, 42:23,
52:2, 52:20, 53:24 22:11, 22:14, 57:13 archives' [2] - 39:15, 43:18, 43:21, 46:2,
actions [1] - 34:12 American [4] - 16:10, 50:11 48:17, 49:3, 49:20,
4 [1] - 4:24
activities [1] - 38:13 36:12, 57:20, 62:21 archivist [65] - 4:24, 50:17, 51:9, 59:25,
actual [3] - 9:14, 10:9, 7:15, 7:22, 8:1, 8:4, 62:4, 62:17, 62:19
5 26:8
annotated [1] - 9:1
8:5, 8:14, 8:15, 8:20, assumed [2] - 36:9,
answer [8] - 7:25,
add [2] - 22:5, 24:20 9:19, 14:3, 14:21, 8:24, 9:13, 9:17, 48:5
5 [1] - 44:22 additional [2] - 24:20, 38:5, 58:17, 63:9, 10:10, 11:11, 11:13, assumes [1] - 35:24
25:25 63:10 11:14, 13:18, 13:22, assuming [4] - 6:5,
A addressed [1] - 14:23 answering [1] - 23:18 14:1, 14:4, 14:12, 6:24, 28:22, 51:7
addressing [1] - 40:6 14:13, 14:18, 14:20, assumption [1] -
answers [2] - 13:16,
adjourned [1] - 63:24 15:22, 16:14, 16:18, 28:18
63:9
a.m [1] - 63:24 16:21, 16:24, 16:25,
administration [2] - antecedent [2] - attempting [3] - 14:17,
abilities [1] - 50:17 17:5, 17:25, 19:4,
6:21, 15:1 11:17, 11:21 17:18, 17:19
ability [3] - 50:20, 21:16, 23:18, 23:20, attention [1] - 37:6
administrative [2] - APA [19] - 10:19,
56:22, 61:8 24:2, 24:4, 24:6,
17:24, 43:13 10:24, 10:25, 11:8, attorney [11] - 13:18,
able [5] - 12:20, 36:20, 24:18, 24:21, 24:25,
Administrative [1] - 12:15, 17:12, 26:16, 14:2, 14:8, 14:14,
40:11, 40:22, 50:24 25:10, 26:12, 26:14, 14:20, 26:14, 34:7,
4:2 37:18, 37:19, 45:8,
above-entitled [1] - 27:3, 27:4, 31:2, 34:21, 43:5, 48:20,
advisement [1] - 45:10, 45:14, 45:18,
64:5 31:3, 31:15, 31:17, 52:7
63:23 46:5, 49:10, 52:10,
absolute [1] - 31:9 31:18, 34:1, 34:8, audio [3] - 18:13,
agencies [3] - 10:15, 58:13, 58:24, 63:3
absolutely [1] - 58:21 37:5, 38:5, 39:21, 21:9, 45:1
13:1, 18:4 appeal [5] - 4:23, 6:2,
abuse [1] - 42:17 42:21, 46:1, 51:17, audiotapes [17] - 4:10,
agency [30] - 5:25, 24:24, 25:4, 46:10
acceding [1] - 17:2 53:10, 54:4, 54:7, 4:11, 4:12, 5:18,
6:23, 10:12, 10:16, applied [1] - 58:11
access [8] - 4:9, 5:18, 55:5, 62:3 6:18, 8:7, 20:12,
10:25, 11:1, 11:4, applies [4] - 7:21,
13:3, 13:12, 24:22, archivist's [8] - 6:11, 21:21, 25:24, 29:13,
11:20, 13:1, 14:9, 34:22, 35:5, 62:11
31:20, 48:2, 62:4 23:22, 25:2, 25:3, 9:5, 9:22, 10:3, 14:2, 39:4, 39:5, 39:8,
apply [3] - 8:3, 10:16,
according [3] - 4:18, 26:20, 26:22, 26:24, 16:4, 24:1, 24:8 40:21, 57:14, 58:16
10:25
11:15, 39:19 27:13, 27:16, 28:7, argue [4] - 12:15, authority [38] - 4:1,
appointments [2] -
accords [2] - 39:19, 28:11, 28:15, 45:22, 12:17, 31:5, 62:10 6:11, 8:5, 13:19,
18:11, 59:19
53:10 49:11, 53:24, 59:5, argues [1] - 37:12 16:13, 16:15, 16:24,
appreciate [2] - 58:19,
account [1] - 59:1 59:11, 60:11, 60:12, argument [6] - 21:6, 26:13, 29:23, 30:7,
63:18
accounts [1] - 17:21 61:10 25:2, 31:21, 45:18, 30:23, 31:15, 33:3,
approach [1] - 53:18
accurate [2] - 12:20, agency's [4] - 11:2, 58:14, 62:16 33:6, 33:9, 34:1,
appropriate [1] -
12:21 25:7, 27:12, 48:12 arguments [6] - 8:2, 34:2, 34:23, 35:5,
14:14
Act [29] - 4:2, 12:7, agree [7] - 5:4, 5:7, 18:18, 22:22, 23:7, 35:7, 35:11, 35:17,
arbitrarily [2] - 7:6,
12:8, 13:3, 14:6, 6:25, 7:1, 7:3, 46:3, 61:25, 63:18 37:19, 38:17, 48:19,
58:25
15:14, 15:15, 17:20, 53:14 Armstrong [28] - 5:22, 48:22, 51:12, 51:17,
arbitrary [12] - 6:8,
23:2, 29:25, 34:17, agreed [2] - 11:7, 12:1, 12:5, 12:13, 53:5, 53:11, 53:19,
9:9, 10:19, 26:16,
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
66
54:7, 55:7, 56:20, 58:14, 58:19, 58:23, button [1] - 21:3 18:3, 37:4, 38:2 51:12, 53:12, 54:16,
59:5, 59:23, 59:24 59:7, 60:5, 60:10, change [2] - 15:10, 54:19, 55:15, 56:22,
authorizes [1] - 4:2 60:13, 60:15, 60:20, C 54:11 56:25, 57:2, 57:8
available [19] - 11:8, 60:23, 61:4, 61:15, characterization [1] - classifying [3] - 13:6,
14:5, 14:7, 16:3, 61:20, 61:23 24:3 38:18, 53:20
20:11, 26:7, 30:2, belief [3] - 4:22, 28:21, calendars [1] - 54:21 chatting [2] - 18:8, clear [2] - 18:16, 24:10
33:23, 35:2, 35:14, 33:18 cannot [7] - 4:4, 4:10, 47:5 clearly [6] - 16:21,
35:15, 35:19, 39:15, believes [4] - 8:20, 4:12, 4:14, 9:21, check [2] - 13:23, 15:8 21:13, 25:19, 33:22,
43:14, 43:21, 44:22, 8:22, 15:9, 24:5 11:23, 35:15 46:12, 59:9
checklist [1] - 48:4
48:6, 51:22, 53:9 belong [1] - 40:12 capricious [11] - 6:8, Clinton [24] - 6:18,
checks [1] - 14:22
avenue [1] - 52:11 belonged [1] - 9:2 9:9, 10:20, 26:16, 7:18, 18:22, 19:5,
Chevron [1] - 59:4
avenues [1] - 50:9 belongs [1] - 40:14 41:16, 45:19, 45:21, 20:12, 20:20, 29:15,
chief [1] - 47:15
avoid [4] - 15:19, best [4] - 18:4, 50:17, 46:5, 58:13, 58:15, 30:10, 32:22, 35:9,
choose [7] - 13:25,
15:22, 23:6, 23:11 58:24 36:7, 36:14, 36:16,
50:19, 50:23 17:25, 43:4, 43:9,
awful [1] - 29:11 capriciously [2] - 7:6, 36:19, 38:9, 40:7,
better [1] - 27:1 49:14, 51:6
58:25 40:20, 41:17, 42:15,
between [2] - 8:11, chose [4] - 13:23,
captured [1] - 22:2
B 13:12
capturing [1] - 20:5
17:24, 17:25, 18:5 44:8, 46:15, 51:1,
beyond [1] - 6:10 Circle [1] - 60:1 54:25, 61:2
carve [1] - 10:24 Clinton's [6] - 19:2,
big [1] - 57:5 Circuit [8] - 10:14,
b) [2] - 32:10, 33:11 carve-out [1] - 10:24 20:17, 21:10, 21:22,
bind [1] - 60:20 10:23, 11:6, 15:2,
BAKESHA [1] - 30:9 case [23] - 11:15, 29:12, 41:2
binding [1] - 25:6 15:7, 23:8, 62:20,
balance [2] - 13:11, 11:25, 16:10, 16:11, close [1] - 8:13
binds [1] - 60:18 62:24
40:16 16:16, 16:17, 16:19, closes [1] - 60:3
blank [4] - 57:22, 58:3, Circuit's [4] - 5:22,
bang [1] - 29:12 22:16, 24:15, 24:16, collection [1] - 62:12
58:8, 63:21 11:15, 11:24, 22:16
based [19] - 5:8, 7:9, 27:1, 34:16, 34:23, collections [1] - 62:14
Block [1] - 11:19 circumstances [3] -
8:8, 12:12, 19:6, 36:25, 37:7, 47:22, combined [1] - 44:17
borne [3] - 22:13, 12:4, 37:18, 38:10
19:9, 20:18, 26:6, 48:11, 58:6, 62:21, command [1] - 63:3
23:9, 24:23 cite [1] - 11:19
30:20, 33:18, 36:17, 62:24, 63:5, 63:19 Commerce [2] - 37:7,
bound [2] - 13:24, cited [2] - 63:5, 63:6
39:4, 41:6, 45:17, cases [3] - 11:18, 57:22
16:25 cites [1] - 21:13
45:23, 57:12, 59:2, 40:2, 40:18
box [4] - 32:13, 32:14, citizen [2] - 60:14, commerce [1] - 47:22
59:13, 63:19 categorization [1] -
54:20, 54:23 60:15 committed [5] - 10:25,
basis [4] - 9:25, 10:1, 56:11
boxes [2] - 32:12, claim [20] - 6:5, 9:14, 11:4, 11:14, 23:15,
10:2, 11:21 categorize [2] - 30:23,
63:12 10:2, 12:8, 12:12, 53:13
bears [1] - 7:17 33:1
Branch [8] - 18:8, 12:14, 12:15, 12:16, Committee [1] - 62:21
become [1] - 8:14 categorized [4] - 32:8,
21:14, 21:24, 46:19, 12:17, 17:12, 25:22, communicated [7] -
behind [1] - 30:8 32:18, 54:13
47:6, 47:14, 59:19 25:25, 26:8, 26:10, 19:1, 20:10, 21:1,
BEKESHA [87] - 28:5, categorizes [1] - 33:2 21:5, 21:8, 21:11,
brief [4] - 11:19, 12:9, 39:24, 45:7, 45:18,
28:19, 28:24, 29:2, category [1] - 32:11 21:19
15:2, 17:18 52:10, 58:24
29:5, 29:9, 29:22, cautious [2] - 22:20, compel [4] - 4:4,
briefly [1] - 61:24 clarify [1] - 36:20
29:25, 30:6, 30:13, 23:5 13:25, 14:18, 16:18
briefs [1] - 63:16 classification [27] -
30:16, 31:5, 31:17, certain [3] - 16:13,
brilliant [1] - 47:16 5:23, 6:13, 6:15, complaint [17] - 4:6,
32:1, 32:3, 32:16, 16:19, 22:11
bring [10] - 9:23, 10:7, 6:16, 6:22, 7:1, 7:5, 4:19, 5:8, 5:12, 5:17,
32:25, 33:5, 33:12, certainly [7] - 22:5,
22:2, 37:15, 40:11, 7:10, 7:11, 7:22, 6:4, 7:17, 9:7, 9:9,
33:15, 34:4, 34:10, 22:9, 24:10, 25:3,
50:11, 50:18, 52:10, 8:16, 11:13, 12:3, 9:14, 9:15, 9:20,
35:11, 36:5, 36:13, 25:9, 28:17, 63:2
52:11, 52:20 16:13, 17:5, 17:22, 19:8, 21:19, 24:19,
37:6, 37:24, 38:6, CERTIFICATE [1] -
bringing [3] - 12:12, 22:24, 23:21, 25:12, 28:22, 59:3
38:9, 39:2, 40:2, 64:1
12:15, 12:17 31:6, 36:25, 37:23, complete [4] - 15:1,
40:9, 40:18, 41:12, certify [1] - 64:3
broad [1] - 52:17 40:8, 54:8, 55:23, 24:1, 39:20, 44:13
41:24, 42:8, 42:16, challenge [7] - 9:9,
broken [1] - 49:22 56:2, 58:12 completely [3] -
42:22, 43:16, 43:20, 22:23, 23:6, 37:16,
brought [3] - 8:25, classified [13] - 6:18, 24:23, 57:17, 57:18
44:4, 44:7, 44:10, 50:4, 52:12, 53:2
45:7, 45:9 6:19, 8:21, 30:10, complied [1] - 50:24
45:7, 45:11, 45:14, challenges [1] - 23:11
Buddy [1] - 44:2 32:23, 33:16, 36:7, comply [1] - 63:4
46:7, 46:12, 47:21, challenging [14] -
Bush [1] - 36:12 36:10, 36:21, 53:23, complying [2] - 51:1,
48:14, 49:2, 49:12, 6:17, 12:10, 17:22,
business [16] - 18:10, 54:17, 54:25, 55:22 51:2
49:18, 49:22, 50:15, 36:13, 36:15, 41:14,
19:1, 20:6, 21:1, classifies [6] - 13:15, concede [2] - 17:18,
50:25, 51:18, 52:9, 41:15, 41:20, 42:25,
21:2, 21:5, 21:9, 30:18, 30:19, 36:4, 40:19
52:19, 53:7, 53:16, 43:3, 49:6, 50:10,
21:12, 21:15, 21:20, 56:23, 57:9 concedes [3] - 12:9,
53:25, 54:6, 54:15, 50:11
22:1, 22:2, 22:11, classify [17] - 7:17, 12:10, 12:11
55:11, 55:15, 56:4, Chaney [7] - 10:6,
22:15, 22:17, 47:10 8:6, 32:15, 33:4, concern [1] - 13:7
56:13, 56:18, 56:22, 10:23, 11:2, 11:25,
busy [1] - 22:11 38:17, 39:25, 42:9, concerned [2] - 13:6,
57:24, 58:4, 58:6,
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
67
56:7 8:22, 18:2, 24:6, 25:19, 26:4, 26:10, 8:22, 24:6, 29:10, declines [1] - 11:20
conclude [1] - 21:7 29:10, 29:17, 29:20, 26:25, 27:8, 27:13, 29:16, 30:1, 30:3, defect [2] - 4:5, 5:20
concluded [3] - 17:11, 30:1, 30:4, 31:1, 27:17, 27:21, 27:24, 31:1, 31:19, 31:23, defendant [1] - 48:10
20:19, 28:6 31:3, 31:19, 31:23, 28:4, 28:17, 28:22, 32:14, 35:13, 35:18, defer [1] - 42:2
conclusion [2] - 6:20, 32:15, 35:13, 35:18, 28:25, 29:3, 29:7, 35:24, 39:13, 42:23, deference [5] - 22:7,
31:24 35:24, 39:13, 39:20, 29:19, 29:23, 30:3, 43:18, 43:21, 44:19, 46:6, 46:7, 59:5,
conduct [4] - 20:6, 42:23, 43:18, 43:21, 30:7, 30:12, 30:14, 48:5, 48:17, 49:3, 59:10
22:2, 62:23, 62:25 43:22, 43:23, 43:25, 30:22, 31:13, 31:24, 49:20, 50:17, 51:7, defined [1] - 62:5
conducted [1] - 21:15 44:14, 44:19, 48:5, 32:2, 32:4, 32:23, 51:10, 56:5, 59:25, defining [4] - 12:6,
conducting [1] - 18:10 48:17, 49:4, 49:20, 33:3, 33:8, 33:14, 62:18, 62:19 12:18, 12:21, 17:17
conference [1] - 42:19 50:17, 51:7, 51:10, 33:25, 34:8, 34:25, definition [12] - 20:22,
conform [1] - 12:22 59:25, 62:18, 62:19 35:25, 36:11, 37:3, D 30:16, 31:10, 47:8,
confusion [1] - 24:15 conversation [3] - 37:21, 38:1, 38:8, 51:15, 51:18, 51:23,
Congress [29] - 13:23, 19:18, 47:15, 59:15 38:15, 39:18, 40:8, 55:20, 55:24, 56:10,
conversations [4] - 40:10, 41:9, 41:21, D.C [12] - 5:22, 10:14,
13:24, 14:1, 14:13, 62:6
33:20, 46:15, 46:18 42:2, 42:14, 42:17, 10:23, 11:5, 11:15,
14:19, 14:24, 15:8, delegated [2] - 16:14,
core [1] - 25:1 43:10, 43:18, 43:25, 11:24, 15:2, 15:7,
15:9, 15:15, 15:24, 24:1
44:6, 44:9, 45:4, 22:16, 23:8, 62:20,
15:25, 16:2, 16:6, correct [14] - 10:22, demand [1] - 30:8
45:9, 45:13, 45:21, 62:24
17:24, 22:20, 22:22, 15:21, 16:7, 21:1, Department [2] - 8:25,
46:11, 47:3, 48:10, daily [1] - 54:21
23:2, 23:5, 23:14, 28:18, 29:2, 29:22, 37:7
32:1, 32:3, 32:25, 48:15, 49:8, 49:13, danger [1] - 15:16
24:7, 38:12, 39:21, deposited [1] - 34:11
34:10, 55:11, 63:11, 49:20, 50:14, 50:21, DATE [1] - 64:9
42:13, 52:7, 54:3, designated [4] -
64:4 51:9, 52:1, 52:15, day-to-day [1] - 38:12
55:4, 55:19, 56:6, 23:19, 44:23, 51:10,
correctly [2] - 7:16, 53:5, 53:10, 53:17, de [1] - 42:3
57:7 62:12
38:6 54:1, 54:10, 55:1, dead [3] - 27:9, 27:12,
Congress's [1] - 15:6 designates [1] - 30:5
counsel [1] - 47:1 55:12, 56:1, 56:8, 27:21
congressmen [2] - designating [1] - 13:9
country [1] - 46:20 56:17, 56:19, 57:16, deal [2] - 9:14, 40:23
33:21, 46:16 determination [40] -
couple [1] - 22:4 58:2, 58:5, 58:10, dealing [2] - 12:25,
consequences [1] - 6:22, 6:24, 11:22,
course [8] - 6:23, 58:18, 58:21, 59:4, 15:18
25:6 33:7, 35:23, 36:15,
21:2, 21:5, 21:8, 59:22, 60:9, 60:12, decide [5] - 7:16,
consider [4] - 8:7, 37:9, 37:11, 37:17,
21:11, 21:20, 21:25, 60:14, 60:17, 60:22, 14:14, 26:5, 31:15,
26:21, 26:23, 27:4 37:19, 37:24, 39:5,
47:10 61:2, 61:12, 61:16, 54:4
consideration [1] - 41:6, 41:13, 41:14,
Court [49] - 4:10, 4:14, 61:22, 61:24, 63:5, decided [1] - 27:5
14:12 41:15, 41:25, 42:4,
5:15, 6:4, 6:14, 7:5, 63:8, 63:12, 63:17, decision [64] - 4:13,
considerations [1] - 45:15, 45:19, 48:6,
7:15, 7:25, 9:4, 9:15, 64:1 6:13, 6:15, 7:7, 7:10,
14:15 49:23, 50:2, 50:4,
9:18, 9:21, 10:8, Court's [4] - 10:6, 7:11, 7:15, 7:22, 8:3,
considers [2] - 10:10, 50:5, 50:10, 51:24,
10:16, 11:2, 11:20, 22:15, 37:6, 45:4 8:16, 8:23, 9:4, 9:10,
10:13 52:13, 52:15, 52:19,
12:20, 13:5, 13:6, courts [2] - 17:15, 9:17, 10:3, 10:6,
consistent [1] - 18:3 52:21, 52:22, 52:23,
13:13, 13:24, 16:16, 38:11 11:4, 11:13, 11:17,
constitute [1] - 10:14 53:1, 53:3, 53:6,
16:23, 17:3, 17:11, Courts [2] - 23:14, 11:23, 12:3, 12:5,
constitutes [2] - 11:7, 58:15, 60:6, 60:25
23:8, 24:8, 25:11, 58:1 14:1, 14:19, 16:20,
12:6 determinative [1] -
29:9, 29:12, 36:17, cover [1] - 28:1 16:21, 17:9, 17:12,
construed [3] - 10:14, 50:3
36:20, 37:15, 37:18, covered [4] - 13:2, 17:13, 17:23, 22:15,
11:6, 17:15 determine [7] - 4:15,
38:3, 39:7, 40:10, 27:24, 28:2, 61:21 22:16, 23:21, 23:22,
consummation [1] - 12:19, 12:20, 18:4,
40:22, 41:5, 41:21, create [1] - 25:6 23:25, 25:8, 25:12,
25:7 29:5, 36:18, 46:17
41:25, 46:9, 50:12, created [11] - 8:8, 25:15, 25:17, 27:12,
contain [2] - 22:10, determined [7] -
50:13, 50:15, 57:25, 20:3, 20:7, 20:12, 27:14, 27:16, 31:9,
22:12 10:17, 17:3, 47:25,
62:7, 62:8, 63:4 20:20, 40:9, 40:25, 37:20, 37:21, 39:25,
contemplate [1] - 12:2 48:4, 49:2, 51:4,
court [2] - 43:5, 43:6 41:11, 49:25, 54:12 40:10, 40:11, 41:9,
contemplates [1] - 51:20
COURT [136] - 4:15, creates [1] - 12:5 41:15, 41:20, 41:21,
62:13 determining [1] -
4:21, 5:6, 5:10, 5:13, creation [5] - 32:9, 45:11, 45:16, 45:24,
contemporaneously 10:16
6:9, 7:8, 8:2, 9:4, 40:5, 40:6, 40:23, 45:25, 47:17, 53:13,
[1] - 20:3 diaries [4] - 20:1,
9:25, 10:19, 11:9, 54:14 53:15, 58:12, 59:2,
contemporaneousne 20:23, 22:9, 59:12
12:1, 12:23, 14:4, CREW [7] - 37:4, 38:2, 59:7
ss [1] - 19:24 diary [9] - 18:13,
15:3, 15:18, 16:9, 38:6, 38:15, 45:5, decision-making [1] -
content [1] - 63:15 18:24, 19:17, 20:24,
16:23, 17:8, 18:7, 57:19 25:8
contest [1] - 22:8 22:12, 22:14, 45:1,
18:19, 19:4, 19:12, criteria [1] - 33:17 decisions [8] - 5:22,
context [3] - 17:16, 46:22
19:19, 20:4, 20:15, Cuba [1] - 9:1 6:17, 7:5, 10:23,
47:23, 48:8 different [13] - 14:16,
20:22, 21:13, 21:23, current [1] - 58:6 16:14, 24:9, 40:5,
contract [1] - 17:1 19:16, 20:6, 20:7,
23:13, 24:10, 25:9, custody [30] - 8:14, 40:7
control [37] - 8:21, 37:8, 37:18, 38:10,
declared [1] - 61:7
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
68
40:24, 46:25, 53:1, duty [5] - 62:7, 62:11, examine [1] - 9:15 12:17, 13:2 Freedom [1] - 12:8
57:21, 61:9, 62:20 62:17, 62:25, 63:2 example [2] - 32:21, Federal [6] - 12:7, freestanding [1] -
differentiation [1] - 54:21 17:20, 34:22, 35:2, 17:11
8:11 E except [1] - 33:11 35:3, 43:14 Friends [1] - 62:21
difficult [1] - 58:17 excluding [1] - 40:13 federal [1] - 12:18 front [1] - 7:5
dignitaries [2] - 33:20, exclusive [1] - 56:20 felt [1] - 15:15 frustrating [1] - 13:11
46:15 early [1] - 27:25
exclusively [1] - 22:14 figure [3] - 37:1, 41:5, functional [4] - 18:22,
dimensions [1] - easier [1] - 56:25 57:6
executive [1] - 32:6 18:24, 20:1, 20:24
24:20 easily [1] - 55:19 file [2] - 43:5
exemption [1] - 23:9 fundamental [2] - 4:5,
disagrees [1] - 18:18 easy [1] - 57:7 filed [5] - 24:19, 26:24,
exercise [6] - 8:17, 5:20
discharge [1] - 48:13 effect [1] - 41:8 30:24, 32:9, 32:24
10:20, 26:13, 48:20, fundamentally [1] -
discovery [2] - 36:24, either [1] - 19:21 filtered [1] - 19:19 25:24
48:25, 52:6
37:2 elected [2] - 61:3, 61:4 final [18] - 5:25, 6:3, fundamentals [1] - 6:9
exercises [2] - 33:3,
discretion [16] - end [9] - 36:3, 38:23, 51:12 6:23, 6:24, 25:2, future [1] - 22:10
10:15, 10:20, 11:1, 46:23, 47:20, 57:4, 25:3, 25:9, 25:14,
Exhibit [1] - 4:24
59:14, 62:15
11:4, 11:8, 16:5,
ended [1] - 41:3
exist [5] - 40:25, 26:20, 27:13, 27:16, G
23:16, 24:1, 26:18, 49:23, 57:11, 57:12, 28:11, 28:15, 31:9,
42:24, 48:20, 52:6, ends [3] - 16:12, 57:15 45:22, 45:24, 46:4,
52:17, 55:3, 55:5 30:25, 50:2 50:2 general [11] - 13:7,
existing [1] - 62:14
discretionary [3] - enforce [9] - 4:13, findings [1] - 20:17 13:18, 14:9, 14:14,
expedition [2] - 57:11,
9:22, 9:23, 13:20 9:22, 11:17, 11:20, first [16] - 4:8, 5:1, 8:4, 14:20, 26:14, 34:7,
57:15
discuss [3] - 7:2, 11:23, 17:11, 18:5, 11:14, 13:17, 25:23, 34:21, 43:5, 48:21,
experts [1] - 14:20
59:11, 60:23 51:15, 51:16 26:22, 28:7, 28:12, 52:7
explained [1] - 25:11
discusses [1] - 58:7 enforceable [1] - 62:7 30:9, 34:4, 41:24, general's [1] - 14:2
explanation [1] - 26:1
discussing [2] - enforced [1] - 51:19 57:25, 62:9, 63:9 genesis [1] - 24:17
expounding [1] -
24:23, 25:5 enforcement [36] - fishing [2] - 57:10, George [1] - 36:12
19:14
discussions [1] - 7:2, 8:19, 9:6, 9:13, 57:15 given [6] - 5:2, 13:12,
expressed [1] - 23:9
46:21 9:17, 9:23, 10:4, fits [1] - 33:16 15:3, 30:22, 38:23,
extent [3] - 29:9, 32:7,
dismiss [3] - 6:4, 10:7, 10:9, 10:11, five [2] - 46:8, 46:9 59:5
32:17
26:18, 36:22 11:3, 11:12, 13:21, five-page [2] - 46:8, government [11] -
extremely [1] - 40:3
dismissed [1] - 4:7 15:22, 16:4, 17:24, 46:9 19:2, 20:25, 21:2,
disposal [3] - 40:5, 23:25, 25:14, 25:15, focus [5] - 21:9, 21:5, 21:8, 21:12,
27:4, 34:5, 34:12, F 21:20, 44:17, 44:21,
40:6, 40:23 45:12, 45:14, 45:17,
dispose [1] - 55:9 37:22, 42:25, 43:13, 55:23 47:10, 51:22
43:15, 44:11, 48:24, f) [1] - 32:2 focused [2] - 40:3, granted [1] - 6:5
disposing [1] - 39:22
49:7, 50:8, 50:11, FACA [3] - 37:8, 55:24 great [1] - 47:15
dispute [1] - 44:25
52:5, 52:16, 52:20, 47:22, 47:23 focusing [4] - 20:4, grounds [1] - 23:6
distinguish [2] - 16:9,
52:25 face [1] - 4:15 guess [1] - 6:11
38:2 20:5, 25:3, 52:13
entire [2] - 24:15, faced [1] - 39:17 guidance [1] - 28:13
District [1] - 25:10 FOIA [25] - 6:2, 12:12,
57:16 fact [9] - 13:12, 14:24, guidelines [7] - 12:6,
docket [1] - 20:11 13:2, 24:16, 24:17,
entitled [3] - 22:6, 18:7, 19:23, 22:1, 25:4, 25:22, 25:24, 12:11, 12:18, 12:19,
documentary [1] -
46:1, 64:5 27:1, 41:13, 43:12, 26:8, 28:8, 35:16, 12:21, 17:14, 17:16
32:5
equivalent [4] - 18:24, 56:24 37:13, 37:14, 37:15, guys [1] - 28:6
documents [2] -
19:21, 20:2, 20:24 facts [7] - 19:6, 19:9, 41:19, 44:24, 44:25,
15:16, 15:17
done [8] - 15:12,
escorted [1] - 59:19 20:18, 26:6, 59:1, 45:16, 48:8, 60:7, H
essentially [4] - 16:14, 59:2, 59:12 60:8, 60:9, 61:9,
25:10, 25:20, 25:21,
40:11, 42:17, 52:16 factual [2] - 6:6, 20:17 61:11, 61:13
42:7, 42:8, 42:9 hand [2] - 21:25, 55:6
establish [2] - 46:12, fail [2] - 9:17, 47:25 FOIA-based [1] -
door [8] - 29:13, 35:8, hands [1] - 14:2
59:9 fails [3] - 6:4, 9:24, 12:12
50:6, 51:3, 60:2, hanging [1] - 57:21
evaluate [1] - 24:8 12:13 following [1] - 16:8
60:3, 60:19, 61:6 happy [1] - 40:15
evaluation [1] - 24:3 failure [7] - 9:22, 9:23, force [1] - 54:1
down [2] - 19:17, harmed [1] - 50:1
event [1] - 15:23 10:7, 11:3, 37:22, foregoing [1] - 64:4
29:12
eventual [1] - 27:19 hat [1] - 57:21
drafting [2] - 22:20, 50:11, 52:20 foreign [6] - 18:11,
evidence [2] - 28:13, head [2] - 41:10, 60:1
23:5 faith [1] - 16:5 21:4, 33:20, 46:15,
41:6 hearing [1] - 5:3
duplication [1] - 20:5 fall [7] - 8:14, 47:8, 46:20, 47:16
exact [1] - 20:5 47:18, 47:24, 48:7, heck [1] - 10:5
during [14] - 20:14, former [8] - 14:10,
exactly [7] - 7:13, 51:19, 61:13 Heckler [5] - 10:5,
32:10, 38:7, 39:20, 14:18, 16:15, 17:1,
8:23, 11:1, 14:12, falls [2] - 56:15, 60:7 10:23, 11:2, 11:25,
40:3, 40:18, 41:1, 17:2, 34:18, 60:16
15:12, 31:13, 42:23 far [2] - 61:3, 61:4 18:3
54:6, 54:7, 56:12, forth [1] - 52:5
examination [1] - 7:23 held [2] - 11:2, 42:19
57:1, 57:18, 57:19 FAR [4] - 12:12, 12:15, forward [1] - 36:25
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
69
help [2] - 31:7, 61:13 indispensable [1] - itself [2] - 7:10, 43:13 8:25, 26:24, 27:6, looked [1] - 41:18
helped [1] - 59:17 30:14 27:8, 27:19, 37:15, looks [2] - 10:9, 46:9
helpful [1] - 24:12 individual [1] - 10:12 J 38:20, 47:20, 53:21 losing [1] - 15:16
hiding [1] - 29:1 individuals [1] - 32:6 leader [2] - 21:4,
historian [1] - 19:15 information [10] -
job [2] - 47:6, 47:7
47:16 M
historical [2] - 15:25, 4:21, 15:10, 22:10, leaders [1] - 18:11
22:12, 28:20, 33:18, jogger [1] - 20:16 leads [1] - 51:25
22:18
36:17, 36:19, 41:10, joggers [2] - 20:14, least [2] - 18:14, 47:4 main [1] - 23:7
Historical [3] - 16:10,
43:24 20:20 leave [1] - 14:19 maker [2] - 16:20,
36:12, 57:20
Information [1] - 12:8 jointly [1] - 8:25 leaves [4] - 42:21, 16:22
historically [1] - 22:9
informed [1] - 57:12 journal [1] - 20:24 50:6, 50:7, 52:9 maliciously [1] - 13:14
history [3] - 22:25,
inherently [1] - 23:25 journals [1] - 20:23 leaving [2] - 14:13, manage [2] - 56:6,
23:10, 42:18
initial [1] - 15:2 Judge [1] - 58:21 32:12 57:2
hoc [1] - 19:22
initiate [3] - 9:13, judgment [3] - 11:17, led [2] - 23:1, 24:18 managed [1] - 41:1
hold [2] - 10:23, 38:19
10:11, 11:3 15:6, 17:2 left [1] - 14:1 management [5] -
holding [3] - 12:23,
injury [12] - 4:8, 4:9, judicial [8] - 5:21, 7:8, legal [2] - 16:13, 25:6 40:5, 40:6, 40:23,
37:3, 45:5
4:12, 5:17, 9:12, 7:19, 7:24, 17:21, legality [1] - 16:16 56:4, 56:25
holds [2] - 54:19,
47:19, 48:9, 49:1, 39:25, 52:2, 55:2 mandamus [1] - 38:3
60:16 legislative [1] - 23:10
60:3, 60:5, 60:25 Judicial [8] - 37:7, mandatory [3] - 62:3,
Honor [16] - 5:5, 6:1, less [2] - 38:22, 39:22
input [1] - 42:5 47:22, 48:9, 48:10, 62:25, 63:2
10:22, 13:17, 18:17, letter [42] - 4:23, 5:1,
inquiry [3] - 9:16, 9:20 49:5, 50:1, 51:3, map [1] - 9:1
27:23, 28:2, 28:5, 5:9, 7:7, 8:6, 11:10,
inspections [2] - 57:22 Materials [1] - 15:13
29:22, 32:16, 33:12, 19:7, 19:8, 19:10,
62:23, 62:25 Justice [1] - 8:25 materials [4] - 7:17,
43:16, 62:10, 63:7, 20:19, 21:7, 21:13,
63:16 instance [6] - 15:25, 21:17, 21:18, 23:18, 7:19, 32:5, 34:18
honor [2] - 14:25, 16:6 16:7, 35:20, 37:17, K 24:11, 24:24, 25:2, matter [3] - 42:18,
Honor's [1] - 14:22 37:20, 49:10 25:12, 25:14, 25:19, 59:8, 64:5
hook [2] - 38:19, instances [4] - 21:14, 25:23, 26:12, 27:3, McIlveney [2] - 8:23,
Kaneshiro [1] - 64:3
38:22 46:14, 46:19, 61:10 27:9, 27:15, 28:7, 8:24
KANESHIRO [1] - 64:9
hopefully [1] - 15:21 instead [1] - 23:18 28:10, 28:12, 29:14, mean [34] - 8:6, 12:23,
Kaneshiro-Miller [1] -
intended [3] - 14:13, 36:9, 41:18, 44:10, 17:15, 17:16, 29:11,
House [4] - 31:7, 64:3
22:23, 24:7 45:22, 46:8, 46:9, 29:13, 34:17, 34:23,
32:12, 42:20, 59:21 KANESHIRO-
intent [1] - 42:12 47:11, 53:14, 53:19, 36:10, 37:10, 43:12,
MILLER [1] - 64:9 43:16, 43:19, 44:12,
I interest [5] - 10:11, 60:1
keep [4] - 14:25, 46:6, 47:23, 48:19,
10:13, 10:18, 22:18, letters [12] - 6:1, 6:7,
48:17, 48:18, 49:18 50:3, 50:22, 51:21,
35:1 24:16, 24:18, 33:6,
idea [4] - 35:12, 36:24, keeps [1] - 34:5 53:21, 54:6, 56:5,
interesting [4] - 18:19, 39:4, 52:14, 57:13,
44:12, 47:2 Kennedy [2] - 9:1, 9:2 56:15, 56:23, 57:9,
27:18, 63:19, 63:21 57:14, 59:3, 59:9,
identical [1] - 11:6 Kennedy's [1] - 16:1 58:14, 58:16, 58:23,
interfering [1] - 38:12 59:13
ignore [2] - 57:17 kept [3] - 18:9, 21:15, 59:11, 60:24, 60:25
interrupted [1] - 27:25 Library [2] - 9:3, 32:22
II [12] - 12:1, 12:5, 33:21 means [3] - 54:24,
intimately [1] - 59:18 lies [1] - 13:18
12:13, 12:14, 12:23, kick [1] - 60:8 56:25, 63:21
invoke [12] - 7:2, 9:5, light [1] - 53:18
12:25, 13:4, 17:3, kind [3] - 6:9, 13:14, measuring [1] - 46:4
9:17, 10:3, 11:12, likely [2] - 20:2, 61:15
17:10, 17:14, 40:10, 48:23 mechanism [20] - 7:2,
13:20, 25:13, 25:15, limited [3] - 36:24,
57:19 knock [3] - 35:8, 60:2, 8:19, 9:6, 9:18, 10:4,
35:1, 37:22, 52:16, 37:2, 55:7
immediately [1] - 30:2 60:18 10:10, 11:12, 13:21,
52:25 line [2] - 5:22, 10:23
implement [1] - 59:6 knows [1] - 30:10 17:24, 25:14, 25:16,
invoking [1] - 27:4 list [1] - 55:21
important [6] - 23:11, 27:4, 43:1, 43:15,
involved [3] - 17:14, listen [1] - 47:15
34:16, 36:25, 51:23, 46:7, 59:18
L listing [1] - 33:19
48:24, 49:7, 52:5,
51:24, 58:18 52:16, 52:25
issue [22] - 6:10, 6:12, literally [3] - 18:9,
impose [1] - 62:17 mechanisms [5] -
6:24, 6:25, 7:5, 7:9, lack [4] - 4:9, 5:18, 19:12, 55:8
improperly [1] - 8:21 15:22, 34:5, 37:22,
7:23, 12:8, 12:16, 5:25, 42:5 litigant [4] - 4:3,
include [3] - 31:10, 44:11, 50:8
12:19, 14:23, 16:20, language [5] - 10:12, 14:17, 16:17, 22:23
52:1, 52:2 meet [1] - 62:6
18:17, 18:20, 27:15, 11:7, 12:24, 39:24, litigants [3] - 13:25,
included [1] - 19:23 meetings [1] - 59:17
30:11, 30:13, 36:23, 62:16 17:21, 18:2
includes [1] - 20:23 memory [4] - 19:20,
36:24, 38:14, 50:23, last [1] - 42:11 litigated [2] - 23:4,
incorporated [1] - 20:14, 20:16, 20:20
58:7 law [7] - 10:16, 11:1, 26:22
5:11 mention [1] - 42:5
issues [10] - 7:13, 11:5, 11:24, 15:10, litigation [2] - 15:3,
independent [1] - 24:3 mere [1] - 19:23
24:22, 25:5, 26:21, 16:2, 58:7 23:12
indicate [1] - 43:14 26:23, 28:3, 37:2, merited [1] - 59:2
laws [1] - 11:16 look [5] - 16:24, 17:4,
indication [1] - 11:10 38:11, 44:1, 57:24 merits [1] - 9:10
lawsuit [11] - 8:24, 25:10, 34:4, 44:18
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
70
middle [1] - 43:3 54:15, 55:11, 55:15, 12:11 54:4, 61:2 perhaps [2] - 21:9,
might [5] - 17:15, 56:4, 56:13, 56:18, opposed [4] - 19:14, 24:23
20:10, 23:22, 24:12, 56:22, 57:24, 58:4, O 40:13, 51:16, 53:11 permits [1] - 17:21
27:2 58:6, 58:14, 58:19, option [1] - 44:7 permitted [1] - 8:17
Miller [1] - 64:3 58:23, 59:7, 60:5, options [2] - 44:4, person [1] - 56:20
60:10, 60:13, 60:15, objective [1] - 53:8
MILLER [1] - 64:9 50:1 personal [61] - 5:24,
60:20, 60:23, 61:4, obligation [10] -
mind [3] - 20:17, order [13] - 4:3, 5:15, 6:19, 7:14, 7:21,
61:15, 61:20, 61:23, 35:21, 39:14, 48:1,
42:13, 58:8 9:13, 12:19, 29:3, 7:24, 8:10, 8:12,
62:9, 63:7, 63:11, 49:3, 49:17, 49:23,
mine [1] - 23:16 29:7, 35:6, 48:25, 9:10, 18:13, 18:25,
63:15 49:24, 49:25, 55:17,
minute [1] - 61:19 49:10, 50:23, 60:17, 19:2, 19:10, 19:22,
mushy [1] - 50:21 55:18
misclassified [6] - 60:20, 63:4 19:25, 20:1, 20:2,
musing [1] - 18:8 obligations [4] -
13:20, 38:25, 39:3, ordered [1] - 50:16 20:22, 20:23, 22:19,
must [2] - 4:6, 6:4 14:25, 41:8, 48:11,
49:14, 49:15, 52:4 orders [1] - 50:22 22:21, 22:25, 23:3,
58:9
misclassifying [1] - original [1] - 58:10 23:6, 23:9, 23:19,
Observatory [1] - 60:1
15:10 N obtain [1] - 35:21
otherwise [2] - 13:2, 23:20, 26:2, 26:7,
missing [3] - 18:1, 16:22 27:2, 30:24, 31:4,
occasion [1] - 24:25 32:8, 32:12, 32:13,
30:14, 36:11 outline [1] - 61:17
namely [2] - 5:23, 7:20 occurred [4] - 11:18, 32:24, 33:10, 34:14,
moment [4] - 4:16, outside [6] - 8:21,
NARA [17] - 4:10, 15:4, 46:24, 46:25 36:7, 41:22, 43:24,
20:7, 39:4, 48:23 19:24, 22:18, 37:13,
4:11, 4:19, 5:14, occurring [1] - 46:25 47:8, 47:12, 51:14,
moreover [1] - 4:13 37:14, 48:7
5:15, 6:25, 7:1, 7:6, OF [1] - 64:1 53:12, 54:5, 54:11,
morning [2] - 28:5, Oval [3] - 59:15,
18:23, 19:8, 20:19, office [8] - 31:25, 54:14, 54:23, 54:24,
63:19 59:17, 59:20
21:7, 22:6, 62:22, 32:1, 32:6, 38:10, 54:25, 56:9, 56:11,
most [2] - 25:23, overall [1] - 53:8
62:24, 62:25, 63:4 38:13, 39:21, 40:21, 56:14, 56:18, 56:20,
61:15 overruled [1] - 4:14
NARA's [2] - 4:13, 6:7 60:16 56:24, 57:5, 59:12,
motion [1] - 36:22 own [7] - 7:7, 7:11,
narrow [2] - 12:4, 13:3 Office [3] - 59:16, 62:15
MR [134] - 4:18, 5:5, 7:17, 7:21, 16:4,
narrower [1] - 12:24 59:17, 59:20 perspective [1] -
5:7, 5:11, 5:14, 6:16, 24:3
nature [2] - 8:7, 62:3 OFFICIAL [1] - 64:1 25:20
7:13, 8:18, 9:8, 10:5, ownership [1] - 44:14
nearly [1] - 11:6 official [8] - 18:15, Peterson [2] - 16:19,
10:22, 11:15, 12:4,
necessarily [5] - 7:16, 19:1, 20:6, 21:25, 17:13
13:16, 14:11, 15:6,
9:19, 34:11, 41:1, 22:2, 22:10, 22:14,
P
15:21, 16:11, 17:7, phone [7] - 18:11,
47:7 22:17 19:13, 21:4, 29:14,
17:10, 18:16, 18:21,
necessary [2] - 9:12, once [20] - 7:10, 14:5, page [5] - 15:1, 46:8, 43:7, 47:14, 59:25
19:6, 19:16, 19:21,
36:14 23:20, 28:15, 29:6, 46:9, 57:5 phrase [1] - 48:18
20:9, 20:18, 21:6,
need [4] - 36:23, 33:15, 34:13, 34:19, paper [2] - 42:20, physically [1] - 43:6
21:18, 22:4, 23:24,
56:13, 62:1, 63:22 41:7, 42:1, 42:7, 54:19 pick [2] - 21:4, 51:6
24:14, 25:18, 25:21,
needs [3] - 9:15, 42:8, 48:4, 49:2, papers [4] - 7:21, piece [1] - 42:20
26:6, 26:19, 27:6,
56:25, 57:8 49:4, 49:23, 49:25, 20:1, 42:10, 57:5 place [4] - 11:14,
27:11, 27:15, 27:19,
never [4] - 24:24, 39:9, 50:5, 51:6, 51:18 parse [1] - 21:23 51:19, 56:3, 56:11
27:23, 28:2, 28:5,
28:19, 28:24, 29:2, 41:16, 41:17 one [35] - 4:23, 6:17, part [9] - 11:16, 11:22, plaintiff [16] - 5:3,
29:5, 29:9, 29:22, New [1] - 44:2 10:9, 12:2, 12:10, 17:8, 17:10, 17:12, 6:17, 12:9, 12:10,
29:25, 30:6, 30:9, new [1] - 15:17 13:17, 16:17, 19:19, 18:14, 23:25, 42:24, 12:11, 14:17, 16:22,
30:13, 30:16, 31:5, next [5] - 36:23, 37:1, 22:21, 22:25, 23:7, 53:10 17:18, 18:23, 19:7,
31:17, 32:1, 32:3, 46:17, 50:14, 50:18 30:10, 35:4, 36:10, particular [8] - 5:23, 20:19, 22:8, 24:20,
32:16, 32:25, 33:5, nice [2] - 44:10, 60:1 39:8, 44:6, 44:7, 5:24, 6:6, 11:5, 24:25, 25:3, 31:5
33:12, 33:15, 34:4, Nixon [5] - 15:13, 44:11, 49:6, 49:9, 17:19, 17:22, 22:24, plaintiff's [9] - 4:6,
34:10, 35:11, 36:5, 22:16, 23:4, 23:7, 50:8, 51:13, 51:17, 48:12 4:8, 4:9, 4:19, 5:17,
36:13, 37:6, 37:24, 23:12 52:5, 54:19, 54:20, particularly [1] - 40:15 7:7, 7:17, 9:12, 21:6
38:6, 38:9, 39:2, none [1] - 57:24 54:22, 57:5, 59:14, parts [1] - 33:12 play [1] - 45:16
40:2, 40:9, 40:18, note [1] - 17:13 61:12, 62:1, 62:14 party [4] - 30:15, pleadings [1] - 4:16
41:12, 41:24, 42:8, notes [7] - 18:25, ones [2] - 19:12, 30:24 36:11, 36:14, 40:15 point [22] - 4:16, 5:1,
42:16, 42:22, 43:16, 19:22, 20:1, 20:2, open [3] - 13:8, 17:4, pass [1] - 15:10 7:12, 15:19, 22:8,
43:20, 44:4, 44:7, 20:8, 20:23, 54:22 52:9 passage [1] - 23:1 24:11, 25:12, 26:19,
44:10, 45:7, 45:11, nothing [10] - 13:13, opens [3] - 50:6, 51:2, passed [3] - 15:17, 37:1, 38:16, 38:22,
45:14, 46:7, 46:12, 26:8, 29:14, 38:18, 61:6 16:2, 23:2 39:8, 40:19, 40:21,
47:21, 48:14, 49:2, 42:10, 44:8, 50:25, operations [1] - 59:17 past [1] - 15:12 42:1, 42:6, 43:2,
49:12, 49:18, 49:22, 51:21, 52:23, 55:10 opinion [3] - 8:9, 45:5, Patricia [1] - 64:3 43:4, 46:23, 50:22
50:15, 50:25, 51:18, notion [1] - 42:6 45:23 PATRICIA [1] - 64:9 pointed [2] - 21:14,
52:9, 52:19, 53:7, novo [1] - 42:3 opportunity [5] - perception [1] - 19:20 48:21
53:16, 53:25, 54:6, number [2] - 12:10, 26:20, 26:23, 52:10, perfect [1] - 56:12 points [3] - 12:9, 22:5,
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
71
27:25 23:11, 25:23, 26:9, 29:25, 34:17, 34:25, private [15] - 4:3, 13:9, 62:17, 62:18
policies [1] - 46:16 59:2 35:12, 39:18, 40:12, 13:14, 13:25, 14:17,
policy [1] - 46:18 preservation [1] - 40:13, 40:16, 42:18, 16:17, 18:2, 22:23, R
portion [2] - 8:16, 31:19 43:12, 44:15, 45:15, 39:23, 40:15, 45:5,
47:18 Preservation [1] - 45:17, 59:6 45:23, 52:1, 60:14,
15:14 presidential [111] - 60:15 raise [1] - 55:6
portions [2] - 21:16,
preserve [1] - 16:2 4:5, 7:14, 7:23, 8:12, PRMPA [1] - 15:14 raised [2] - 6:13,
47:4
8:13, 9:10, 12:3, problem [4] - 6:23, 24:24
position [5] - 6:12, presidency [23] - 8:13,
18:15, 19:14, 20:13, 12:7, 12:21, 12:25, 36:6, 41:12, 57:4 rather [2] - 19:10, 26:3
18:4, 18:16, 27:13,
33:22 20:14, 20:21, 30:25, 17:17, 17:20, 19:11, Procedure [1] - 4:2 rationale [3] - 7:19,
32:10, 32:11, 36:3, 22:1, 22:9, 22:12, Proceedings [1] - 7:24, 18:3
possess [3] - 4:11,
4:19, 5:15 36:4, 38:7, 38:16, 22:24, 24:5, 26:3, 63:24 rationally [4] - 18:23,
possession [3] - 38:21, 38:23, 40:3, 27:2, 28:9, 28:14, proceedings [2] - 19:8, 20:19, 21:7
44:14, 55:18, 60:10 40:4, 40:19, 41:1, 28:16, 29:6, 30:4, 60:25, 64:5 raw [1] - 19:20
possibility [8] - 13:22, 56:12, 57:18, 57:19, 30:17, 30:20, 30:21, process [8] - 17:5, reach [1] - 18:17
16:6, 50:6, 50:7, 57:20 30:23, 31:1, 31:10, 25:8, 44:24, 45:3, read [10] - 11:10, 13:5,
53:2, 60:23, 61:5 President [35] - 6:18, 31:11, 31:12, 31:15, 48:1, 56:2, 61:9 17:10, 24:13, 35:3,
possible [4] - 32:7, 7:18, 9:1, 15:13, 31:20, 31:22, 32:8, processed [1] - 51:5 35:25, 36:1, 46:8,
33:24, 37:9, 54:16 16:1, 18:22, 19:2, 32:13, 32:19, 32:20, produced [1] - 32:5 46:11, 63:20
possibly [1] - 30:6 19:5, 20:12, 20:17, 32:24, 33:1, 33:10, properly [2] - 10:17, reading [6] - 17:3,
20:20, 21:10, 21:21, 33:13, 33:15, 33:18, 51:5 22:6, 22:7, 24:14,
post [2] - 19:22, 20:21
22:13, 23:4, 23:7, 33:23, 34:15, 34:20, property [3] - 44:16, 36:1, 36:2
post-presidency [1] -
29:12, 29:15, 30:10, 35:23, 36:8, 37:11, 44:21, 51:22 Reagan's [1] - 22:14
20:21
35:9, 36:7, 36:14, 37:12, 37:25, 39:6, protection [1] - 22:21 real [1] - 15:16
posted [1] - 20:10
36:16, 36:19, 38:9, 39:12, 39:16, 41:4, provide [3] - 4:1, really [7] - 7:4, 16:11,
potential [2] - 4:4,
40:7, 40:20, 41:2, 41:7, 41:8, 41:19, 24:21, 36:20 16:17, 18:14, 38:4,
23:6
41:17, 42:14, 44:7, 41:22, 44:14, 44:20, provided [6] - 19:6, 41:10, 62:1
power [5] - 48:12,
46:15, 51:1, 54:25, 45:2, 45:12, 45:20, 19:9, 20:18, 28:13, realm [3] - 18:12,
48:16, 48:24, 49:16,
61:2 46:13, 46:14, 47:19, 34:13, 41:6 19:24, 22:18
54:2
president [69] - 4:22, 47:25, 48:4, 48:7, reason [7] - 5:19,
powers [2] - 38:11, provision [4] - 34:6,
7:16, 8:1, 8:3, 8:13, 49:3, 49:24, 50:5, 5:25, 6:3, 11:16,
50:19 34:22, 35:16, 52:3
10:1, 13:7, 13:10, 50:16, 51:4, 51:5, 17:23, 24:22
PRA [19] - 4:13, 4:14, public [16] - 10:11,
13:13, 13:14, 13:19, 51:11, 51:14, 51:20, reasonable [1] - 22:5
5:20, 5:21, 5:24, 6:2, 10:13, 10:18, 13:8,
14:5, 14:10, 14:18, 51:24, 52:22, 52:24, reasons [4] - 4:6,
12:16, 16:6, 16:8, 13:12, 20:9, 23:17,
14:22, 15:8, 15:9, 53:4, 53:8, 53:12, 12:13, 14:19, 22:25
17:11, 24:17, 25:5, 33:24, 35:1, 35:15,
16:5, 16:7, 16:12, 54:14, 54:18, 55:8, receipt [2] - 32:9,
25:6, 25:8, 45:6, 35:19, 39:15, 43:21,
16:15, 17:1, 17:2, 55:9, 55:18, 55:20, 54:14
52:12, 53:7, 53:10, 44:22, 51:23, 53:9
18:7, 19:17, 21:14, 55:21, 55:24, 56:11, receive [1] - 34:20
58:8 Public [1] - 44:18
22:11, 22:13, 23:1, 56:15, 56:24, 57:5, received [7] - 28:10,
practical [1] - 32:17 publicly [1] - 16:3
23:16, 23:19, 30:4, 57:9, 59:10, 59:16, 32:5, 34:15, 34:18,
pre [1] - 62:14 purported [1] - 8:15
30:17, 30:19, 30:22, 60:7, 61:8, 62:4, 39:8, 39:9, 53:19
pre-existing [1] - purporting [1] - 8:5
31:8, 31:11, 31:20, 62:5, 62:12 receiving [1] - 53:18
62:14 purports [2] - 23:20,
32:5, 32:7, 32:19, presidents [2] - 14:25, reclassify [5] - 8:5,
precluded [3] - 5:24, 53:14
32:25, 33:2, 34:18, 34:16 16:18, 17:19, 18:1,
7:20, 17:22 purpose [1] - 8:7
36:4, 36:6, 38:4, press [2] - 42:19, 44:1 53:22
precludes [1] - 5:21 purposes [3] - 5:2,
38:13, 38:17, 39:19, pressing [1] - 21:3 reclassifying [1] -
precluding [1] - 7:24 28:23, 47:12
42:5, 42:9, 46:20, presumably [2] - 6:19, 53:20
preclusion [1] - 22:22 pursuant [1] - 24:17
51:11, 51:12, 53:11, 14:24 recognizes [2] -
preconditions [1] - pursue [3] - 13:21,
53:13, 54:9, 54:15, presumed [1] - 16:5 13:13, 19:25
12:13 14:1, 18:1
54:17, 55:6, 55:22, presumption [1] - recognizing [1] -
predecessor [1] - put [1] - 35:6
57:2, 57:8, 60:16, 23:15 23:14
15:14 puts [3] - 54:19,
62:13 presumptively [1] - recollection [1] -
predicate [1] - 25:13 54:23, 63:12
president's [12] - 7:1, 10:7 19:22
premised [1] - 28:17
7:9, 7:20, 7:21, pretty [1] - 46:12 Record [1] - 44:15
prepared [4] - 18:25,
16:12, 23:3, 31:24, prevent [1] - 13:10 Q record [42] - 4:5, 8:9,
20:16, 20:25, 42:3 38:12, 41:10, 54:5, prevention [1] - 37:9 12:7, 12:18, 12:21,
prerogative [1] - 63:1 54:8, 55:23 prevents [1] - 37:9 quality [1] - 63:18 15:1, 19:3, 20:9,
present [5] - 12:5, Presidential [21] - 4:1, primary [1] - 13:17 quickly [1] - 33:24 21:21, 22:1, 22:17,
16:20, 25:4, 27:6, 9:2, 13:2, 14:6, privacy [3] - 13:12, quite [1] - 23:17 22:19, 22:24, 29:15,
27:20 15:13, 15:15, 23:1, 23:3, 23:6 quote [3] - 14:23, 30:9, 30:20, 31:10,
presented [5] - 6:25,
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
72
31:11, 31:12, 31:15, 49:3, 49:14, 49:15, repeat [1] - 62:1 reviewable [10] - 6:13, 53:17, 54:3
32:19, 32:20, 33:2, 49:21, 49:24, 50:5, repeating [2] - 48:18, 7:12, 10:8, 12:2, seek [2] - 14:15, 50:17
33:15, 45:23, 47:7, 50:7, 50:16, 50:18, 49:18 23:22, 23:24, 25:17, segregate [2] - 21:16,
47:9, 49:22, 51:20, 51:2, 51:4, 51:5, reply [2] - 11:19, 63:5 45:25, 53:24, 62:7 44:25
51:24, 54:24, 54:25, 51:11, 52:4, 52:21, reported [1] - 46:20 reviewed [3] - 11:23, seize [8] - 4:10, 5:16,
55:20, 55:21, 55:24, 52:22, 52:25, 53:4, REPORTER [1] - 64:1 39:11, 41:16 15:11, 16:18, 24:21,
56:16, 56:18, 57:10, 53:8, 54:16, 54:17, represent [2] - 25:7, reviewing [2] - 17:16, 29:13, 29:18, 43:6
64:4 54:18, 54:23, 55:9, 27:16 41:25 seizing [1] - 15:17
recorded [1] - 18:22 55:18, 55:20, 56:5, representative [1] - role [2] - 24:6, 24:8 seizure [2] - 4:4, 29:11
recorder [2] - 21:3, 56:14, 57:2, 57:8, 10:13 rooms [1] - 59:20 senators [1] - 46:16
21:24 57:11, 57:12, 59:9, request [1] - 28:8 running [2] - 18:9, sense [2] - 26:22,
recording [3] - 19:13, 59:10, 59:16, 60:2, requests [1] - 24:17 21:15 56:12
19:14, 33:21 60:6, 60:7, 61:6, require [2] - 4:10, sensitivity [1] - 7:20
recordings [3] - 61:8, 61:10, 62:5, 29:10 S sent [1] - 47:14
47:12, 59:15, 59:18 62:12, 62:15, 62:23 required [14] - 7:3, sentence [1] - 43:11
Recordings [1] - Records [25] - 4:2, 24:21, 30:1, 30:3, separate [3] - 9:11,
15:13 12:7, 13:3, 14:6, sat [1] - 19:17
35:13, 35:18, 42:23, 9:20, 34:6
records [192] - 5:24, 15:15, 17:20, 23:2, saw [1] - 46:21
43:9, 43:20, 44:19, separated [1] - 31:4
6:6, 6:19, 7:14, 8:12, 29:25, 34:17, 34:22, scheme [3] - 24:7,
45:2, 54:15, 63:3 separately [3] - 30:24,
8:14, 8:20, 13:1, 34:25, 35:2, 35:3, 24:9, 31:2
requirement [3] - 32:9, 32:24
13:21, 14:1, 14:7, 35:12, 39:18, 40:12, SCHWEI [46] - 4:18,
39:12, 43:8, 54:20 separation [1] - 38:11
14:8, 14:16, 15:11, 40:14, 40:17, 42:18, 5:5, 5:7, 5:11, 5:14,
requirements [1] - serious [2] - 14:11,
16:1, 16:3, 16:19, 43:12, 43:14, 44:18, 6:16, 7:13, 8:18, 9:8,
26:19 14:15
17:17, 17:19, 17:20, 45:15, 45:17, 59:6 10:5, 10:22, 11:15,
reserve [1] - 44:13 Service [1] - 62:21
18:1, 18:14, 19:10, recover [1] - 9:1 12:4, 13:16, 14:11,
resolve [2] - 26:23, serving [1] - 20:23
19:11, 19:25, 20:22, recovery [3] - 13:21, 15:6, 15:21, 16:11,
37:2 set [4] - 52:5, 57:3,
21:10, 21:11, 21:19, 14:16, 18:1 17:7, 17:10, 18:16,
resources [1] - 18:5 59:17, 59:18
22:21, 23:10, 24:4, redress [3] - 5:17, 18:21, 19:6, 19:16,
respect [3] - 25:4, sets [1] - 49:25
24:5, 26:2, 26:3, 9:12, 60:4 19:21, 20:9, 20:18,
25:22, 27:16 setting [1] - 6:23
26:7, 26:14, 27:2, redressability [7] - 21:6, 21:18, 22:4,
respond [2] - 24:18, shall [8] - 31:18, 32:7,
27:3, 28:9, 28:14, 6:10, 9:11, 9:16, 23:24, 24:14, 25:18,
25:1 32:17, 32:23, 44:13,
28:16, 29:6, 29:16, 9:21, 9:24, 50:3, 25:21, 26:6, 26:19,
responded [3] - 18:23, 62:4, 62:22
30:1, 30:4, 30:10, 61:7 27:6, 27:11, 27:15,
19:8, 24:2 sheet [1] - 54:19
30:17, 30:18, 30:19, redressable [4] - 4:8, 27:19, 27:23, 28:2,
responding [3] - 6:7, shield [1] - 13:8
30:20, 30:21, 30:23, 47:19, 49:1, 60:5 62:9, 63:7, 63:11,
7:7, 24:2 shredding [1] - 55:8
31:1, 31:8, 31:20, redressed [3] - 4:12, 63:15
response [11] - 4:25, similar [2] - 38:7, 47:1
31:21, 31:22, 31:23, 51:3, 60:24 scope [4] - 6:11, 23:3,
6:2, 28:7, 28:10, simply [9] - 5:16, 13:9,
32:8, 33:1, 33:13, reference [2] - 33:10, 37:13, 37:14
28:11, 33:5, 39:15, 16:19, 17:2, 19:2,
33:17, 33:18, 33:22, 36:16 scrutiny [1] - 4:4
45:4, 52:18, 63:14 19:17, 22:17, 48:16,
33:23, 34:10, 34:12, referenced [2] - 5:9, SEC [1] - 11:19
responses [1] - 62:9 61:7
34:14, 34:15, 34:20, 6:1 second [12] - 4:23,
responsibility [6] - single [2] - 42:20,
35:12, 35:14, 35:15, refusal [1] - 9:5 5:19, 6:12, 6:22,
31:19, 39:14, 62:4, 59:23
35:20, 35:22, 35:23, regard [1] - 34:21 10:8, 14:3, 14:21,
62:19, 62:23, 63:1 sit [1] - 51:21
35:24, 36:4, 36:7, regardless [2] - 8:1, 15:25, 22:8, 30:11,
responsible [1] - sits [1] - 48:23
36:8, 36:9, 36:21, 30:19 62:16, 63:9
38:20 sitting [1] - 20:8
36:22, 37:11, 37:12, related [1] - 6:2 secretary [1] - 46:17
rest [2] - 36:2, 63:15 situation [3] - 12:25,
37:25, 39:6, 39:12, relating [2] - 16:1, section [14] - 32:16,
rests [1] - 35:17 14:16, 38:3
39:13, 39:14, 39:16, 22:10 34:6, 35:25, 36:1,
retain [1] - 44:13 51:15, 51:16, 51:18, situations [1] - 14:15
39:20, 39:22, 39:25, relatively [1] - 63:20 retained [1] - 7:19 56:5, 56:6, 56:9, slate [4] - 57:22, 58:3,
40:24, 40:25, 41:3, release [1] - 44:1
41:4, 41:7, 41:8, retains [1] - 16:13 56:10, 62:6, 63:4 58:8, 63:21
relevant [4] - 9:16, review [31] - 5:21, 7:9,
41:17, 41:19, 42:10, Section [12] - 8:19, slightly [1] - 37:8
16:20, 16:21, 21:21 7:15, 7:20, 7:25, 8:3,
43:7, 43:22, 43:23, 32:2, 32:4, 43:11, snippets [1] - 13:5
relied [1] - 14:24 9:5, 9:18, 9:21, 10:1,
44:8, 44:14, 44:15, 44:12, 54:13, 56:1, softer [1] - 26:4
relief [2] - 4:1, 6:5 10:2, 10:19, 10:21,
44:20, 45:1, 45:2, 56:8, 62:3, 62:11, solely [9] - 20:12,
relies [1] - 37:10 10:24, 11:8, 12:6,
45:12, 45:20, 46:13, 62:13, 63:10 20:13, 20:16, 20:20,
remedies [2] - 14:7, 17:5, 17:21, 37:22,
46:14, 47:19, 47:24, sections [2] - 44:18, 37:10, 45:18, 52:21,
35:2 40:1, 40:11, 41:21,
47:25, 48:2, 48:3, 51:19 54:8
remedy [7] - 13:15, 41:23, 41:25, 43:23,
48:4, 48:5, 48:7, see [7] - 21:17, 35:3, someone [4] - 12:15,
13:17, 13:24, 14:4, 52:3, 55:2, 58:11,
48:8, 48:17, 49:2, 36:24, 38:21, 49:16, 12:17, 19:13, 21:25
37:10, 43:13, 52:11 58:15, 58:22, 59:8 sometimes [2] - 59:20
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
73
somewhere [1] - 43:1 statutes [2] - 4:3, 18:6 5:16, 6:19, 8:6, 8:9, 63:12, 63:17
U
sorry [2] - 37:15, statutory [17] - 10:9, 18:9, 18:21, 18:24, themselves [1] - 21:11
57:14 11:5, 11:6, 14:25, 18:25, 24:21, 28:14, theoretically [1] - 24:4
sort [7] - 18:12, 31:8, 15:11, 24:7, 24:9, 42:15, 47:4 theory [2] - 52:24, ultimately [2] - 26:11,
37:2, 42:6, 47:20, 31:2, 34:23, 35:5, Taylor [7] - 18:8, 57:16 29:19
53:22, 57:6 35:7, 38:19, 38:22, 21:14, 46:19, 47:5, therefore [7] - 4:12, undefined [1] - 23:4
sorts [1] - 13:8 48:11, 48:19, 49:16, 47:6, 47:14, 59:19 13:3, 24:25, 25:5, under [66] - 4:3, 4:12,
sound [4] - 19:10, 49:17 tee [1] - 26:10 31:22, 48:7, 62:6 5:21, 8:4, 8:11, 9:6,
21:21, 49:22, 59:12 stay [1] - 44:16 teed [2] - 24:12, 24:16 thereof [1] - 20:2 9:16, 9:20, 10:19,
sounds [2] - 11:12, step [4] - 36:23, 37:1, telephone [1] - 19:18 they've [2] - 40:25, 10:21, 11:24, 12:13,
29:11 50:18, 59:23 term [11] - 16:12, 50:24 12:15, 14:7, 14:14,
source [2] - 53:5, 53:7 still [11] - 16:12, 31:25, 39:20, 41:2, thinking [1] - 58:20 17:12, 17:20, 22:3,
speaking [2] - 21:22, 17:14, 23:3, 23:4, 54:6, 54:8, 54:10, thinks [2] - 26:25, 25:6, 25:8, 26:13,
33:19 28:15, 30:21, 40:20, 57:1, 57:4, 62:15 41:13 26:16, 29:23, 29:25,
specific [3] - 30:22, 41:13, 47:7, 55:16, text [3] - 10:9, 11:5, third [3] - 5:25, 6:12, 30:25, 31:2, 35:11,
62:12, 63:2 55:17 11:6 15:8 35:15, 35:16, 37:5,
specifically [5] - 12:1, stops [2] - 60:25, 61:1 THE [135] - 4:15, 4:21, three [1] - 13:16 37:19, 38:24, 40:12,
21:16, 29:17, 52:12, strike [1] - 13:11 5:6, 5:10, 5:13, 6:9, 40:16, 40:20, 40:21,
threshold [7] - 4:6,
56:2 strong [1] - 23:15 7:8, 8:2, 9:4, 9:25, 42:21, 42:22, 43:14,
5:19, 5:25, 6:3, 9:15,
specifies [1] - 43:13 struck [1] - 40:16 10:19, 11:9, 12:1, 44:15, 45:6, 45:7,
18:18, 27:20
structure [1] - 15:11 12:23, 14:4, 15:3, 45:9, 46:1, 47:21,
speech [1] - 54:22 throughout [1] - 19:1
stuck [2] - 37:16, 15:18, 16:9, 16:23, 48:11, 48:25, 49:10,
speeches [2] - 54:22, tied [1] - 5:19
17:8, 18:7, 18:19, 49:13, 51:8, 51:16,
54:23 39:17 timing [1] - 20:4
19:4, 19:12, 19:19, 52:12, 52:23, 53:13,
spend [1] - 18:5 subject [4] - 39:25, today [1] - 30:11
20:4, 20:15, 20:22, 54:3, 54:13, 55:17,
square [1] - 39:24 41:19, 48:11, 52:4 took [6] - 4:22, 42:15,
21:13, 21:23, 23:13, 58:24, 59:6, 59:8,
stack [1] - 57:5 subsection [2] - 47:14, 53:18, 61:17
24:10, 25:9, 25:19, 60:7, 61:9, 61:10,
staff [2] - 32:6, 47:15 32:17, 33:11 track [1] - 18:14
26:4, 26:10, 26:25, 63:3, 63:22
standard [5] - 10:21, subsequent [2] - transacting [6] -
27:8, 27:13, 27:17, underlies [1] - 4:5
41:23, 41:24, 58:11, 14:24, 22:16 20:25, 21:2, 21:5,
27:21, 27:24, 28:4, unenforceable [1] -
59:8 subsequently [2] - 21:8, 21:12, 21:20
28:17, 28:22, 28:25, 50:22
standing [2] - 26:11, 13:5, 15:4 transcript [3] - 20:6,
29:3, 29:7, 29:19, unequivocal [1] - 63:3
47:23 substance [3] - 30:18, 20:9, 64:4
29:23, 30:3, 30:7, unfettered [5] - 10:21,
start [1] - 6:9 30:20, 55:25 transferred [1] - 62:14
30:12, 30:14, 30:22, 26:17, 48:20, 55:3,
started [2] - 18:12, sue [4] - 14:18, 26:15, transferring [1] - 6:20
31:13, 31:24, 32:2, 55:5
23:14 34:2, 61:2 treat [2] - 34:14, 34:20
32:4, 32:23, 33:3, United [7] - 8:24,
starts [2] - 10:5, 39:22 sued [1] - 36:12 troubling [2] - 53:17,
33:8, 33:14, 33:25, 31:18, 44:13, 44:15,
state [2] - 6:5, 46:18 suggest [2] - 52:3, 55:13
34:8, 34:25, 35:25, 44:16, 44:20, 51:21
states [2] - 33:6, 34:8 57:13 true [3] - 5:21, 11:24,
36:11, 37:3, 37:21, units [1] - 32:6
States [7] - 8:24, suggests [1] - 47:11 28:23
38:1, 38:8, 38:15, unlawfully [1] - 7:18
31:18, 44:13, 44:16, suit [1] - 28:17 trust [1] - 55:3
39:18, 40:8, 40:10, unless [1] - 60:10
44:17, 44:20, 51:21 supposed [10] - 26:15, trusted [1] - 55:4
41:9, 41:21, 42:2, unreviewable [5] -
stating [3] - 10:6, 32:25, 42:2, 44:3, try [8] - 13:25, 35:21,
42:14, 42:17, 43:10, 10:15, 11:3, 11:7,
10:24, 29:15 44:16, 44:21, 44:24, 43:6, 44:11, 48:21,
43:18, 43:25, 44:6, 26:11, 52:18
statute [51] - 5:20, 51:5, 51:22, 54:18 50:23, 57:11
44:9, 45:4, 45:9, up [18] - 15:23, 17:5,
8:11, 8:16, 8:18, Supreme [4] - 10:6, trying [10] - 13:1,
45:13, 45:21, 46:11, 18:8, 21:4, 23:1,
10:25, 12:16, 12:22, 11:2, 22:15, 23:8 13:11, 14:18, 16:18,
47:3, 48:10, 48:15, 24:12, 24:16, 26:10,
13:11, 15:17, 15:18, sweep [1] - 13:1 41:5, 43:1, 43:2,
49:8, 49:13, 49:20, 32:4, 35:8, 50:1,
15:20, 15:21, 19:23, system [2] - 48:3, 57:3 46:17, 57:7, 57:8
50:14, 50:21, 51:9, 51:2, 54:8, 54:19,
19:25, 21:23, 22:3, turn [2] - 37:6, 51:1
52:1, 52:15, 53:5, 57:3, 59:17, 59:18,
22:6, 23:5, 29:24, T 53:10, 53:17, 54:1, turned [1] - 31:8 60:1
30:25, 31:14, 31:17, turns [1] - 61:6
54:10, 55:1, 55:12, upheld [1] - 15:7
33:9, 33:11, 33:13, two [10] - 6:16, 7:4,
talks [8] - 23:10, 56:1, 56:8, 56:17, utilized [4] - 8:8,
35:17, 36:2, 37:5, 12:11, 32:12, 33:5,
30:18, 34:10, 34:13, 56:19, 57:16, 58:2, 20:25, 41:11, 42:4
38:19, 38:24, 42:6, 52:13, 62:9, 62:13,
34:19, 47:8, 56:4, 58:5, 58:10, 58:18,
42:21, 42:22, 46:1, 63:9, 63:12
48:12, 48:22, 48:25, 56:9 58:21, 59:4, 59:22,
type [7] - 10:12, 12:14,
V
tape [7] - 19:12, 19:20, 60:9, 60:12, 60:14,
49:7, 49:13, 51:8, 25:5, 60:16, 63:1,
21:3, 21:15, 21:24, 60:17, 60:22, 61:2,
51:9, 51:11, 52:1, 63:2 vehicle [1] - 52:11
47:14 61:12, 61:16, 61:22,
52:2, 52:6, 54:3, versus [4] - 33:10,
tapes [14] - 4:20, 5:15, 61:24, 63:5, 63:8,
59:6, 60:8, 62:22 41:22, 53:12, 56:11
Document 327-1
Document
Entered
14 on
Filed
FLSD
03/05/12
DocketPage
02/22/2024
148
74
vest [1] - 56:19
veto [2] - 39:21, 55:7
vice [3] - 38:4, 38:13,
38:17
view [6] - 9:5, 26:2,
27:22, 40:4, 43:19,
46:24
violation [3] - 11:18,
11:21, 11:22
virtually [1] - 39:19
voice [2] - 21:10,
21:22
vs [2] - 37:4, 47:22
Watch [8] - 37:7,

47:22, 48:9, 48:10,
49:5, 50:1, 51:3,
57:22
watching [1] - 47:6
website [1] - 32:21
Webster [1] - 62:21
week [1] - 46:23
whatsoever [2] -
53:11, 55:2
White [4] - 31:7,
32:12, 42:20, 59:21
whole [4] - 15:19,
25:11, 44:19, 45:2
wildly [1] - 15:9
win [2] - 60:22, 61:1
window [1] - 17:4
works [1] - 57:16
write [8] - 26:12,
26:15, 27:3, 27:10,
29:14, 44:10, 46:22,
60:1
writing [3] - 57:22,
58:3, 63:20
wrote [3] - 19:17,
28:10, 46:9
years [4] - 44:22,

44:23
York [1] - 44:2

MOTION To Dismiss Indictment, Based On The Presidential Records Act by Donald J. Trump

Uploaded by

Copyright:

Available Formats

MOTION To Dismiss Indictment, Based On The Presidential Records Act by Donald J. Trump

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

MOTION To Dismiss Indictment, Based On The Presidential Records Act by Donald J. Trump

Uploaded by

Copyright:

Available Formats

Case 9:23-cr-80101-AMC Document 327 Entered on FLSD Docket 02/22/2024 Page 1 of 17

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, Case No. 23-80101-CR

PRESIDENT TRUMP’S MOTION TO DISMISS THE INDICTMENT

PRA, the Superseding Indictment must be dismissed.

I. The Superseding Indictment

classified documents, to be transported” to Mar-a-Lago. ECF No. 85 ¶ 4 (emphasis added). The

documents at issue while he was the Commander-in-Chief. Id. ¶ 4.

II. Motions To Dismiss

III. The Presidential Records Act

sole discretion to “categorize[]” materials as “Presidential records or personal records.” 44 U.S.C.

complete control over his records during his term of office”).

records once the Presidency concludes.” Id. at 291.

govern disposal of Presidential records by an incumbent President”). However, “a close reading

Circuit has not yet blessed” Am. Historical Ass’n v. Peterson).

A. President Trump’s PRA Designations Are Not Reviewable

“unauthorized” under 18 U.S.C. § 793(e) because President Trump exercised virtually

delivered to Mar-A-Lago. 3 DOJ previously took a substantially similar position on behalf of

Vice-Presidential records during a Vice President’s term in office.”). 6

decisions,” including President Trump’s decision to designate materials as Personal Records.

claims constitute national defense information in this case, including:

• “‘[F]oreign-policy decisions such as the United States’ military involvement in

• “‘President Clinton’s side of telephone conversations with foreign leaders’”;

• “‘President Clinton’s side of a telephone conversation with U.S. Secretary of State

• Details from “‘technical forecasts that he received during presidential briefings.’”

Id. at 290 n.1 (quoting pleading).

communicated in the course of, transacting Government business.” 44 U.S.C. § 2201(3)(A). It is

Clinton. Id. at 302.

impermissible judicial review of President Trump’s PRA designation decisions.

B. The PRA’s Recovery Mechanism Is Exclusive And Does Not Permit

Consequently, the obstruction and false-statements allegations in Counts 33 through 42

impede or influence a federal investigation” under 18 U.S.C. § 1519); United States v.

¶ 6, United States v. Navarro, No. 22 Civ. 2292 (D.D.C. Aug. 3, 2022).

agency charged with administering this provision—treats this enforcement mechanism as

dismiss the Superseding Indictment based on the Presidential Records Act.

Dated: February 22, 2024 Respectfully submitted,

/s/ Todd Blanche

/s/ Christopher M. Kise

Counsel for President Donald J. Trump

/s/ Christopher M. Kise

IN THE UNITED STATES DISTRICT COURT

DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES

to return the documents, no reservation of legal control, and no requirement of confidentiality.

after adjudication of Defendants’ pending Motion to Dismiss.

(NARA)—albeit in undifferentiated form, with what appear to be copies of documents at

multiple stages of declassification review—and are maintained there as Presidential records,

discretion and subsequent release.

posted on the FBI’s FOIA reading room.

the issuance of the writ in this case.

both Plaintiff’s mandamus and replevin claims.2

On January 19, 2021, then-President Trump issued a Memorandum concerning a binder

applicable law.” Id.

released in redacted form on the FBI’s FOIA reading room: https://vault.fbi.gov/crossfire-

435 F. Supp. 3d at 22 (Fed. R. Civ. P. 56(c)(4)).

A document is an “agency record” if it fulfills two requirements: “First, an agency must

Id. (quotation omitted).

United We Stand, 359 F.3d at 602.

returned to DOJ for DOJ to apply redactions in its sole discretion.