US Gives Court No Assurances on Records Preservation

WASHINGTON (CN) — An attorney representing the White House refused Tuesday to guarantee a federal judge that communications between President Donald Trump and foreign leaders will be preserved.

The development came during a storm of debate in Washington over reports that the White House tried to “lock down” a whistleblower complaint alleging wrongdoing by President Trump on a call with Ukrainian President Volodymyr Zelensky. House Democrats launched an impeachment inquiry into Trump last week following reports that on the call he enlisted Ukraine to dig up dirt on Joe Biden, his expected 2020 presidential election rival.

U.S. District Judge Amy Berman Jackson called for a telephone conference Tuesday in her Washington courthouse after a government watchdog agency filed a request earlier in the day for a temporary restraining order to safeguard all records of meetings and communications between Trump and White House senior staff with foreign leaders.

CREW, short for Citizens for Responsibility and Ethics in Washington, originally filed a lawsuit in May alleging the White House was failing to create and preserve such records, in violation of the Presidential Records Act passed in the aftermath of the Nixon-Watergate scandal. 

The temporary restraining order request filed Tuesday also looks to protect all records of efforts to “claw back” or recall communications with foreign leaders that the White House shared with other federal agencies. 

In a Sept. 20 letter to the Justice Department, the watchdog group requested confirmation that all documents relating to the lawsuit, including those concerning the whistleblower complaint, would be preserved for later discovery. 

The government dismissed the request as premature in its Sep. 23 response. It wrote that the court does not hold the authority to “create a freestanding right to demand that defense counsel disclose preservation guidance outside of the discovery process, before a defendant has even filed a response to the complaint.”

The government reiterated that argument in court on Tuesday while offering mild assurances. 

“There is certainly no risk of anything being destroyed,” Justice Department attorney Kathryn Wyer said.

But Jackson continued to press the attorney on why the White House could not guarantee that any records relevant to the CREW lawsuit will be preserved. 

“If that’s the case then I don’t know why you wouldn’t be willing to assure me,” Jackson said.

Wyer said she was not authorized by the White House to make such a guarantee and furthermore the request was outside the court’s jurisdiction. 

But Jackson disagreed saying, if there was no possibility the documents would be lost, then the attorney could easily take the next step and assure the court they would be preserved. 

Such a guarantee, the judge said, would save all parties the trouble of litigating the temporary restraining order. Jackson noted she would want sufficient time to consider the request from CREW. “I could be too late by that time,” she added.

CREW attorney Anne Weisman argued actions by the Trump administration over the last week make clear that the court must act with urgency.

But Jackson said she is not concerned with the “gravity” of the situation as much as the “hurdles” to whether she has jurisdiction to manage the White House.

“I don’t think arguing to me about the ethics of the administration gets to the heart of the problem, as important as that may be,” the judge said. 

The Justice Department has until Wednesday afternoon to notify Jackson if the White House can guarantee the records in question will be preserved. Otherwise, the judge will order both parties to proceed with briefings in the lead up to her decision on whether to issue a temporary restraining order. 

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