Judge hears suit on Trump White House use of encrypted apps Justice Department says disappearing-message apps are effectively banned by existing policy.

A federal judge heard arguments Wednesday on the Trump administration's bid to toss out a lawsuit alleging that the White House has failed to stop aides to President Donald Trump from using encrypted apps that automatically delete messages soon after they're read.

U.S. District Court Judge Christopher Cooper didn't clearly signal whether he will allow the case to proceed or grant the Justice Department's request to shut the litigation down.


During a 45-minute hearing, Cooper—an appointee of President Barack Obama—sounded uncomfortable with the government's claim that the courts have no role at all in enforcing the Presidential Records Act.

However, the judge also seemed reluctant to embark on an unbounded, free-range inquiry into whether the Trump White House is policing its staff's compliance with record keeping obligations. And he appeared even more skeptical about delving into claims that the Trump White House is using executive orders to steer policy decisions out of federal agencies whose records are subject to request under the Freedom of Information Act.

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A lawyer urging Cooper to let the suit go forward, George Clarke, said former Trump adviser Steve Bannon has made clear that the White House was limiting the circulation of policy proposals on national security issues.

"Steve Bannon said his goal is to prevent a paper trail," Clarke said. The lawyer complained that lax policies were allowing the use of "message deleting-apps which destroy the history of this presidency."

Justice Department attorney Steven Myers argued that a pair of decisions the D.C. Circuit Court of Appeals issued in the 1990s preclude the courts from taking up cases claiming a president is evading his obligations under the Presidential Records Act—the law Congress passed in response to an epic battle over President Richard Nixon's White House files and tapes.

"The core of the D.C. Circuit decision is that allowing judicial review [of decisions on White House records] would interfere with the president's ability to run his office and manage his records," Myers said.

Cooper seemed to agree that presidents have broad authority to decide which records are permanent records to be saved, which are personal and which can simply be thrown out.

"Isn't records management and destruction completely discretionary under the statute?" the judge asked.

However, Clarke said the suit—filed last June by the watchdog group Citizens for Responsibility & Ethics in Washington and by the National Security Archive, a non-profit that collects declassified government records—isn't challenging specific decisions about which records to keep and which to dispose of, but rather the use of technology that forecloses such decisions in the first place.

"These apps....they prevent that determination from ever being made," he said.

Clarke also noted that the D.C. Circuit's latter ruling said "guidance" about how records should be handled is open to judicial review, even if specific decisions are not.

A lawyer for CREW, Anne Weismann, warned Cooper that if he rules that the courts have no proper role in the dispute, the White House would be let loose to defy the law Congress passed three decades ago in the wake of Watergate.

"If this court found there is no judicial review here, then I think the president and White House would be granted license to ignore all Presidential Records Act obligations," Weismann said.

"Isn't that a matter for Congress?" Cooper asked.

Weismann insisted that the court stepping aside would "undermine the purpose" of the law.

Myers pointed to guidance the White House issued to employees last February telling them they need to save official messages they send or receive on social media platforms. The Justice Department attorney said that amounted to a ban on the encrypted apps at issue.

"If you can't comply with the guidance by using these particular apps, the upshot would be that you can't use these apps," said Myers, who said the plaintiffs were "nitpicking around the edges" with their complaints about the White House policy. "The guidance is already there," he said.

Cooper gave no specific timeline for a decision, saying only that he'd rule "in due course" on the government's motion to throw the case out.

There was no discussion at the hearing of a new White House policy that kicked in this week, banning the use of all personal electronics in the West Wing during business hours. The ban could complicate staffers' ability to use unapproved or encrypted apps to communicate, since it appears unlikely that White House information technology personnel would install those programs on government-owned phones or computers.