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A Judge Wants Assurances The Administration Won't Destroy Records About Trump's Calls With Foreign Leaders. The Justice Department Is Hesitating.

A lawsuit filed in May accusing the White House of failing to create and preserve records of the Trump administration’s calls with foreign leaders suddenly got a lot more urgent.

Posted on October 1, 2019, at 3:27 p.m. ET

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WASHINGTON — A government watchdog group asked a federal judge on Tuesday to issue an emergency order requiring the White House to preserve records of all of President Donald Trump’s calls with foreign leaders.

At a court hearing later in the day, a Justice Department lawyer told the judge that she couldn’t immediately commit to assuring that the administration would preserve records of all of Trump’s conversations, as well as other records about how the administration had handled those documents. The judge gave the government until Wednesday afternoon to make a decision.

The case, which accuses the Trump administration of failing to meet its legal obligations to create — and properly save — records of Trump’s and other officials’ conversations with foreign leaders, was originally filed in May. But the plaintiffs are now arguing that the judge needs to take immediate action in light of recent events.

The lawsuit predates the recent flood of information about Trump’s communications with foreign officials, including a July call with the Ukrainian president — when Trump asked for help investigating Democratic presidential candidate Joe Biden — which the White House sought to keep secret, a whistleblower complaint alleges. Recent reporting has also uncovered the Trump administration’s overtures to other countries to aid in an inquiry into the origins of the Mueller probe, including records of other calls with foreign leaders the White House has sought to restrict access to.

At Tuesday’s hearing, Justice Department lawyer Kathryn Wyer repeatedly pushed back when US District Judge Amy Berman Jackson asked why the administration couldn’t voluntarily give its assurance that it would maintain the “status quo” and not destroy any documents relevant to the case while the judge decided key legal issues, including whether the court has authority to hear the case at all.

Jackson, who sits in Washington, DC, has strongly and repeatedly suggested that the government should consider giving a voluntary assurance, as opposed to having her formally rule on the request filed by the challengers for an emergency order and issue a decision that she said one side “might not appreciate.”

Wyer told Jackson that the department had notified the plaintiffs that it advised administration officials of their obligation to preserve records, and she insisted there was no evidence of any risk that officials would destroy documents in the meantime. Jackson expressed puzzlement at Wyer’s resistance to go a step further and explicitly confirm that documents would remain intact. The government maintains that the assurances the plaintiffs asked for would involve giving up privileged legal advice.

“I’m not sure I understand that position at all,” Jackson said.

When the case was filed in early May, lawyers for Citizens for Responsibility and Ethics in Washington (CREW) and two historical preservation groups also involved cited news reports that Trump had conversations with various foreign leaders, including Russian President Vladimir Putin, without notetakers present. They asked a judge to rule that the administration was violating federal laws and to issue an order requiring the administration to comply with its record-keeping obligations going forward.

The plaintiffs are now asking for a temporary restraining order requiring the White House to preserve records not only of all of Trump’s communications with foreign leaders, but also documents about the White House’s record-keeping process and efforts to “claw back” or “lock down” records of Trump’s interactions with foreign leaders given to other agencies. During Tuesday’s hearing, CREW attorney Anne Weismann said they weren't arguing that they were entitled to see all of those documents — and Jackson expressed serious doubts that they would be — but that they could be evidence of whether the administration was complying with federal record-keeping laws and should be preserved in the meantime.

Until this week, the case had been moving along at a normal pace. The two sides were set to finish filing briefs on the government’s motion to dismiss the case by mid-October. The Justice Department has argued that the court lacks jurisdiction to hear the dispute at all. Jackson said on Tuesday that she thought the administration raised significant legal questions that she wanted time to properly consider, which is why she was pressing the government to make the temporary restraining order issue moot and put the schedule back on track.

The judge also noted that she thought some of the earlier cases cited by CREW and its colleagues — as part of their argument that the court had the authority to hear their lawsuit — were “problematic.”

CREW and the other plaintiffs argued the events of the past week created “palpable risk that presidential records will be irreparably lost to Plaintiffs and the American people.”

The plaintiffs cited a whistleblower complaint about Trump’s July call with Ukrainian President Volodymyr Zelensky that claimed White House lawyers directed efforts to “lock down” any record of the call after it happened and to store it in a special electronic system reserved for particularly sensitive classified information. The whistleblower, who has not been identified, said that one unnamed White House official described these efforts as an “abuse” of the system.

The whistleblower also wrote in their complaint that White House officials said this wasn’t the first time officials had placed a written record of a presidential communication in the secure database. The lawyers also quoted later news reports describing efforts by the administration to limit access to written records of Trump’s conversations with foreign leaders.

According to lawyers for CREW and the other plaintiffs, they asked the government for assurances starting on Sept. 20 — right after the first news reports came out about the existence of a whistleblower complaint — that records relevant to the case were being preserved. They included copies of messages from the Justice Department, which said that the plaintiffs’ request was inappropriate because it involved privileged legal advice.

Wyer wrote in a Sept. 23 letter: “I can assure you, however, that we have appropriately advised our clients concerning their preservation obligations, as is our standard practice. Our hope is therefore that you will withdraw your request that Defendants disclose their preservation advice and refrain from filing baseless motions with the Court.”

Weismann responded to Wyer that the Justice Department was wrong to take the position that the plaintiffs were asked for privileged information. In a Sept. 27 letter, Wyer repeated the government’s position and wrote: “Moreover, nothing in your letter, or in the allegations of Plaintiffs’ complaint, suggests that spoliation of relevant evidence is likely to occur.”

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