Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 1 of 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1101 Street N W Suite 201 Washington DC 20005 NATIONAL SECURITY ARCHIVE Gelman Library George Washington University 2130 Street N W Suite 701 Washington DC 20037 Civil Action No I I SOCIETY FOR HISTORIANS OP AMERICAN FOREIGN RELATIONS Department of History Middle Tennessee State University 1301 East Main Street Box 23 Murfreesboro TN 37132 I I I I I Plaintiffs y MICHAEL R POMPEO in his of cial capacity as US Secretary of State 2201 Street NW Washington DC 20520 US DEPARTMENT OF STATE 2201 Street NW Washington DC 20520 Defendants COMPLAINT 1 This an action under the Administrative Procedure Act 5 U S C 701 e seq and the Federal Records Act 44 U S C 2101 et seq and 3301 et seq challenging as contrary to law the policy and practice ofthe US Department of State State Department and Secretary ofState Michael R Pompeo of failing to document State Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 2 of 32 Department policies decisions and essential transactions as the FRA requires The Defendants actions ow from and are directly related to President Donald J Trump s violations of the Presidential Records Act 44 U S C 2201 2209 which include inter alia his decision not to create records of his interactions with autocratic foreign leaders during which he has solicited their help to advance his own personal and political interests over the interests of the United States See CREW er al v Trump Civil No l9-cv 2333 D D C 2 Congress enacted and amended the FRA to assure a ccurate and complete documentation of the policies and transactions of the Federal Government and j udicious preservation and disposal ofrecords 44 U S C 2902 1 5 To achieve this result the FRA requires that 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 ofthe agency 44 U S C 3101 To meet this obligation agencies must create and maintain records that d ocument the persons places things 01' matters dealt with by the among other types of records 36 C F R 3 The public or other interested parties may request the disclosure of agency records subject to the FRA through the Freedom oflnformation Act See 5 U S C 552 a The purpose is completely undermined when records that should be accessible through this mechanism are never created and preserved 4 The mandates of the FRA have particular force now when the need for accurate records of US foreign policy could not be greater State Department officials charged with carrying out our foreign policy should not be left in the dark about shadow diplomacy carried out through a secret alternative channel Creating records of US foreign policy is essential to Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 3 of 32 ensure that the critical checks and balances built into our system function as the founders intended and that the public private researchers and historians have access to the full documentary history ofthis administration 5 The conduct of Secretary Pompeo and the State Department however conflicts directly with their obligations under the FRA For example at the direction ofPresident Trump and his personal lawyer Rudolph Rudy Giuliani State Department officials including Ambassador to the European Union Gordon Sondland and former Special Envoy for Ukraine Kurt Volker and with the knowledge of Secretary Pompeo have been conducting foreign policy in Ukraine using a secret and irregular channel that bypasses State Department recordkeeping systems and requirements In at least one instance Ambassador Sondland on information and belief acting at the direction of the White House directed that no one transcribe a call with Ukrainian President including State Department officials listening in on or participating in the call Secretary Pompeo and other State Department of cials operated in secrecy to hide the President s im olvement in actions designed to pressure President to assist the President in digging up dirt on his 2020 election opponents Further high level State Department of cials have been using an messenger app to conduct official business without ensuring that copies ofthose messages are saved and preserved in a State Department recordkeeping system as the FRA requires Absent the requested relief the Defendants will not be held accountable for their actions and Plaintiffs and the public will be denied full access to a record of the Defendants actions JURISDICTION AND VENUE 6 This Court has personal and subject matterjurisdiction over this action pursuant to 28 U S C 1331 action arising under the laws ofthe United States 44 U S C 2101 e Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 4 of 32 seq and 3301 e seq the and 28 U S C 2201 and 2202 the Declaratory Judgment Act 7 Venue in this district is proper pursuant to 28 U S C 1391 e PARTIES 8 PlaintiffCitizens for Responsibility and Ethics in Washington is a nonpro t non partisan corporation organized under section 501 c 3 of the Internal Revenue Code CREW is committed to protecting the right ofcitizens to be informed about the activities of government officials and to ensuring the integrity of government officials To advance its mission CREW uses a combination ofresearch litigation advocacy and public education to disseminate information to the public about public officials and their actions CREW researches and reviews information made available to the public under the RA and PRA including records of former presidents and uses the FOIA to obtain information about the government that is critical to its mission and purpose CREW has filed hundreds ofFOlA requests since the start of the Trump administration including with the State Department 9 CREW also has a longstanding interest in government compliance with recordkeeping laws including the FRA and the PRA CREW has brought numerous lawsuits to compel compliance with these laws For example to advance interest in the creation and preservation of agency records CREW and the Public Employees for Environmental Responsibility brought a lawsuit challenging the failure ofthe Environmental Protection Agency and its then-Administrator Scott Pruitt to adequately document EPA policies decisions and essential transactions as tho FRA requires CREW cl ii Scot Pruitt er Civil No 18 cv 0406 JEB D D C The Plaintiffs here also brought a lawsuit pending in this court CREW cl v Trump e Civil No l9 cv-l333 ABJ D D C that challenges the failure ofthe Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 5 of 32 President and the Executive Of ce of the President to comply with the mandatory non- discretionary duties the PRA imposes on them Currently CREW has FOIA requests pending with the Department of State Department of Defense and the Office of Management and Budget pertaining to efforts by President Trump to withhold aid to Ukraine unless and until Ukrainian President agreed to publicly call for an investigation into Hunter Biden and his efforts on behalf of Burisma a Ukrainian gas company as well as the President s claim that Ukraine interfered in the 2016 presidential election to aid then-presidential candidate Hillary Clinton 10 CREW will continue its practice of submitting FOIA requests for documents from executive branch agencies on matters that relate to ongoing research litigation advocacy and public education efforts including the President s ongoing actions to elevate his own personal and political interests over those of the United States 1 l PlaintiffNational Security Archive the Archive founded in 1985 by journalists and scholars to check rising government secrecy combines a unique range of functions investigative journalism a research institute on international affairs and a library and archive ofdeclassifred U S documents that is often considered the world s largest nongovernmental collection of such materials The Archive is located at the George Washington University and is one ofthe leading non profit users ofthe FOIA In these roles the Archive has established an extraordinary track record of highly credible award winning investigative journalism and scholarship as reflected in its receipt ofthe George Polk Award in 2000 for piercing self-serx-dng veils of government secrecy in search for the truth and informing us all Together with its founding director Scott the Archive brought the Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 6 of 32 series oflawsuits against the Executive Of ce of the President that resulted in the recognition that White House email record-keeping practices and guidelines are subject tojudicial review 12 The Archive has 6 300 FOIA and declassi cation requests currently pending at the State Department most for historical documents These pending OIA requests include a dozen led in the last month for documents referenced in or related to the complaint of a whistleblower and statements to Congress by Ambassadors Volker Sondland Taylor and Yovanovich concerning efforts by President Trump to withhold aid to Ukraine Over the past 30 or more years in which the Archive has been ling FOIA requests it has led 13 592 requests with the State Department out of a total of over 70 000 requests The Archive s publications especially the award winning Digital National Security Archix-te database published by ProQuest an Outstanding Academic Title 2018 according to Choice magazine include tens of thousands of historically valuable State Department documents 13 In addition since its founding the Archive has led over 1 300 FOIA and declassi cation review requests with the Truman Eisenhower Kennedy Johnson Nixon Ford Carter Reagan George H W Bush Clinton and George W Bush Presidential Libraries The documents released in response to these requests have illuminated United States foreign policy and national security history since the Second World War Among other things the documents the Archive acquired from these presidential libraries have shed light on the Cuban Missile Crisis the origins ofthe Vietnam War President Nixon s opening to China communications between the Soviet Union and the United States throughout the Cold War and as the Cold War ended and the US role during the human rights atrocities in the former Yugoslavia and Rwanda Continued access to a full historical record of each modern presidency and administration is critical to the Archive s work The Archive intends to le requests with the Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 7 of 32 Trump Presidential Library as soon as is legally permitted likely on a range oftopics covering the Trump presidency s foreign policy 14 An Archive staffer Senior Analyst William Burr has published books and other writings drawing on declassified records of presidential meetings with foreign leaders One book The Kissinger Transcripts The Top Secret Taiks wit i Beijing and rl oscou' New Press 1998 published for the first time the White House record of President Richard Nixon s meeting with Mao Zedong in February 1972 Another book Nixon s Nudear Specter The Secret Alert of I 969 Madman Diplomacy and the l iemam li ar University Press Kansas 20l 5 drew upon records kept by National Security Adviser Henry Kissinger of his meetings and telephone conversations with President Nixon Other publications such as edited collections ofdocuments posted on the Archive s website have included declassified records prepared by State Department and White House officials of presidential meetings with foreign leaders 15 Plaintiff Society for Historians of American Foreign Relations is a professional society dedicated to the study of US foreign relations On behalf ofits nearly 1 000 members it advances its mission to promote the study advancement and dissemination of knowledge about US foreign policy by awarding research grants and prizes holding conferences publishing an academicjournal Diplomatic History and furthering archival access to government documents 16 members depend on preservation of and access to records ofa president and his administration in order to present a full and accurate accounting ofthe past in their teaching public speaking exhibitions and publications SHAFR members have disseminated research findings to the public on the basis of archival research conducted in every presidential library SHAFR members have filed many thousands of FOIA and mandatory declassification Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 8 of 32 review requests and have long advocated for the preservation declassi cation and public availability of government records notably including presidential records because ofthe fundamental importance of these records for their investigation of the country s past Without the proper creation and preservation of government records SHAFR members will not be able to fulfill their professional responsibility to provide evidence based assessments of the conduct of US foreign policy during the Trump administration 17 journal Diplomatic History routinely publishes articles based on new research in presidential libraries such as a 2017 article by Frederic Bozo based on FOIA requests relating to Iraq from the Clinton Presidential Library Recent books published by SHAFR members that are based on records in presidential libraries include Kelly J Shannon s US oreigtt Policy and ll'bmeh 5 Human Rights which used Clinton Library records to trace that administration s global women s rights policies Books by SHAFR members that rely heavily on accounts of conversations and meetings between US presidents and foreign leaders include Jeffrey Engel s the ll orld New George H W Bush and the End oft re Cold ll at' 18 For all Plaintiffs access to State Department records of diplomatic efforts is essential to fullill their core missions The failure of Secretary Pompeo and State Department officials to create and preserve records of their conversations and meetings with certain foreign leaders and ofthcir diplomatic efforts conducted through a secret irregular channel outside of the agency s recordkeeping system have deprived and will continue to deprive the Plaintiffs of access to the documentary history ofthis administration In the process Plaintiffs and other members of the American public will lose vital information and insight into State Department Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 9 of 32 policies and decision making which are critical to interpret and prevent illegal or unwise government action 19 Defendant Michael Pompeo is the Secretary of State and is sued in his official capacity only As Secretary of State he has an obligation under the RA to adequately document agency decisions and commitments reached orally and all necessary agency actions the State Department takes As Secretary of State Mr Pompeo also has an obligation under the FRA to maintain a program that adequately documents agency decisions and activities 20 Defendant State Department is an agency within the meaning of 5 U S C 701 The State Department is responsible for implementing Secretary Pompeo s directives and policies including those drafted pursuant to the obligations the FRA imposes on Secretary Pompeo and the State Department STATUTORY AND REGULATORY FRAMEWORK The Federai Records Act and triplememmg Regulations 21 Agency records are subject to records creation maintenance and destruction rules codified in the FRA 44 U S C 3101 e seq For the purposes ofthe FRA the term records includes all recorded information regardless of form or characteristics made or received by a Federal agency under Federal law or in connection with the transaction ofpublic business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization functions policies decisions procedures operations or other activities of the United States Government or because of the informational value of data in them 44 U S C 3301 cross referenced in and applied to chapter 31 oftitle 44 by 44 U S C 2901 1 22 The FRA requires that the head of each Federal agency shall make and preserve records containing adequate and proper documentation ofthe organization functions policies decisions procedures and essential transactions ofthe agency and designed to furnish the Case Document 1 Filed 11 05 19 Page 10 of 32 information necessary to protect the legal and nancial rights of the Government and of persons directly affected by the agency s activities 44 U S C 3101 23 Under the FRA the head of each agency also must establish and maintain an active continuing program for the economical and efficient management of the records of the agency 44 U S C 3102 24 Both the Archivist and the heads of the various executive departments and agencies share responsibility to ensure that an accurate and complete record of each agency s policies and transactions are compiled See 44 U S C 2901 et seq 3101 e seq 56 Regulations promulgated by the Archivist describe in greater detail each of the demands To meet their obligation for adequate and proper documentation agencies must prescribe the creation and maintenance of records that Document the persons places things or matters dealt with by the agency Facilitate action by agency officials and their successors in of ce 0 Make possible a proper scrutiny by the Congress or other duly authorized agencies of the Government Protect the financial legal and other rights ofthe Government and of persons directly affected by the Government s actions Document the formulation and execution ofbasic policies and decisions and the taking of necessary actions including all substantive decisions and commitments reached orally person-to person by telecommunications or in conference or electronically 1 Document important board committee or staff meetings 36 C F R 1222 22 In addition the Archivist requires that agency recordkeeping requirements identify and prescribe specific categories of records to be systematically created or received and maintained by agency personnel in the course oftheir official duties 36 CPR 10 Case Document 1 Filed 11 05 19 Page 11 of 32 26 The State Department s implementing guidance 5 FAM Foreign Affairs Manual 422 echoes these requirements and charges the Department s Records Officer representing the head of the agency with ensuring that e ffective controls over the creation and over the maintenance and use ofrecords in the conduct of current business are provided 5 FAM 422 2 Under the agency s regulations those controls must ensure inter alia that i mportant policies decisions and Operations are adequately 5 FAM Further the regulations define adequate documentation as inter Ilia records that are complete to the extent necessary to flacilitate the making of decisions and policies and the taking of action by the incumbents and their successors in of ce and p rovide appropriate documentary materials for research and other historical purposes 5 FAM 27 State Department regulations delegate to each individual employee the responsibility w ithin his or her area of responsibility to create and preserve records that properly and adequately document the organization functions policies decisions procedures and essential transactions ofthe Department 5 FAM 422 3 28 With respect to electronic records State Department regulations impose on all agency personnel the legal reSponsibility and a business obligation to ensure documentation of official duties is captured preserved managed and protected in official government systems 5 FAM Agency employees are discouraged from using a personal email account to conduct official business 5 FAM but ifthey do they must copy their of cial Government email account during the original creation or Id at Those employees who fail to do so at the time of the message s original creation or transmission must Case Document 1 Filed 11 05 19 Page 12 of 32 forward a complete copy of work-related email including any attachments to his or her of cial Government email account no later than 20 days after the original creation or transmission Id at 29 Congress views the preservation and maint4enance of documents to be of such importance that anyone found guilty of willfully and unlawfully concealing removing mutilating obliterating destroying or attempting to do any such action against a federal record can be fined and imprisoned for up to three years 18 U S C 2071 The Freedom oflnformalion Act 30 The FOIA enacted in 1966 established a statutory right of public access upon request to information held by Executive Branch agencies Congress enacted the FOIA to ensure an informed citizenry vital to the functioning of a democratic society needed to check against corruption and to hold the governors accountable to the governed NLRB v Robbins of disclosure U S Dep 1 ofStare v Ray 502 US 164 173 1991 and its limited exemptions do not obscure the basic policy that disclosure not secrecy is the dominant objective ofthe Act Def 1 ofthe Air Force Rose 425 US 352 361 1976 31 Under the FOIA virtually every record ofa federal agency must be made publicly available unless it is specifically exempted pursuant to one or more of the nine exemptions 5 U S C 552 b Those government entities that fall outside the Administrative Procedure Act s definition of agency including the Office ofthe President are not subject to the 01A initially See e g Kissinger r Reporters Comm for Freedom ofthe Press 445 US 136 156 1980 12 Case Document 1 Filed 11 05 19 Page 13 of 32 The Administrative Procedure A cf 32 The APA provides that a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof 5 U S C 702 Such reliefis available unless other statutes precludejudicial review or the action challenged is committed to agency discretion by law 5 U S C 701 33 The term agency action under the APA includes the whole or a part of an agency rule order license sanction relief or the equivalent or denial thereof or failure to act 5 U S C 551 emphasis supplied See also 5 U S C 701 cross referencing the definitions at 34 A court reviewing a claim brought under 5 U S C 702 shall decide all relevant questions of law interpret constitutional and statutory provisions and determine the meaning or applicability ofthe terms of an agency action 5 U S C 706 The reviewing court shall compel agency action unlawfully withheld or unreasonably delayed and hold unlawful and set aside agency action findings and conclusions found to be arbitrary capricious an abuse of discretion or otherwise not in accordance with 10 35 The APA authorizesjudicial review ofproperly pleaded claims that an agency has violated its non-discretionary obligations under the FRA including the failure to make records containing adequate and proper documentation of the organization functions policies decisions procedures and essential transactions ofthe Ammtrong Bush 924 F 2d 282 285 DC Cir 1991 Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 14 of 32 FACTUAL BACKGROUND 36 On August 12 2019 a whistleblower who works within the intelligence community led a complaint with the Office of the Inspector General of the Intelligence Community reporting an urgent concern that the President ofthe United States is using the power of his of ce to solicit interference from a foreign country in the 2020 US election Whistleblower Complaint See also Press Release House Intelligence Committee Releases Whistleblower Complaint House Permanent Select Committee on Intelligence Sept 26 2019 The ICIG deemed the complaint credible and a matter of urgent concern thereby triggering a requirement to notify the appropriate congressional oversight committees Greg Miller Ellen Nakashima and Shane Harris Trump s communications with foreign leader are part of whistleblower complaint that spurred standoff between spy chief and Congress former officials say Post Sept 18 2019 37 In the complaint which was submitted to the ICIG on August 12 2019 and released to the public by the House Permanent Select Committee on Intelligence on September 26 2019 the whistleblower asserts that he or she has received information from multiple US Government officials that the President ofthe United States is using the power of his office to solicit interference from a foreign country in the 2020 US election This interference includes among other things pressuring a foreign country to investigate one ofthe President s main domestic political rivals Whistleblower Complaint at 1 38 The whistleblower described a telephone call between President Trump and Ukrainian President on July 25 2019 in which after an initial exchange ofpleasantries the President used the remainder ofthe call to advance his personal interests Case Document 1 Filed 11 05 19 Page 15 of 32 Namely he sought to pressure the Ukrainian leader to take actions to help the President s 2020 reelection bid Those actions included pressuring the Ukrainian president 1 to initiate or continue an investigation into the activities offormer Vice President Joseph Biden and his son Hunter Biden 2 to assist in purportedly uncovering that allegations of Russian interference in the 2016 US presidential election originated in Ukraine and 3 to meet or speak with two people the President named explicitly as his personal envoys on these matters Mr Giuliani and Attorney General Barr Whistleblower Complaint at 2 39 In a section on circumstances leading up to the July 25 telephone call the Whistleblower noted that he or she learned in mid-July of a sudden change of policy with respect to US assistance which was described in more detail in an appendix Whistleblower Complaint at 7 Specially the Whistleblower wrote On 18 July an Office of Management and Budget OMB official informed Departments and Agencies that the President earlier that month had issued instructions to suspend all US security assistance to Ukraine Neither OMB nor the National Security Council staff knew why this instruction had been issued During interagency meetings on 23 July and 26 July OMB officials again stated explicitly that the instruction to suspend this assistance had come directly from the President but they still were unaware of a policy rationale As of early August I heard from US officials that some Ukrainian officials were aware that US aid might be in Id Classified Appendix at 2 40 The Whistleblower Complaint further alleges that White House officials may have abused recordkeeping systems to conceal the President s actions Officials reportedly were deeply disturbed by what had transpired on the July 25 phone call and there was a discussion ongoing with White House lawyers about how to treat the call because ofthe likelihood that they had witnessed the President abuse his office for personal gain histleblower Complaint at 3 According to the complaint although approximately a dozen White House officials and a 15 Case Document 1 Filed 11 05 19 Page 16 of 32 State Department official Mr T Ulrich Brechbuhl listened to the call and multiple State Department and Intelligence Community of cials were briefed on the contents ofthe call id at 3 senior White House of cials intervened to lock down all records ofthe phone call eSpecially the official word-for word transcript of the call that was produced as is customary by the White House Situation Room Id 41 More speci cally the Whistleblower Complaint alleges that White House of cials told me that they were directed by White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored for coordination nalization and distribution to Cabinet-level officials Instead the transcript was loaded into a separate electronic system that is otherwise used to store and handle classi ed information of an especially sensitive nature One White House of cial described this act as an abuse ofthis electronic system because the call did not contain anything remotely sensitive from a national security perspective Id at 3 4 Recent congressional testimony from Army Lt Col Alexander Vindman the Director ofEuropean Affairs for the National Security Council con rms that it was White House lawyer John Eisenberg who directed that the transcript be moved to the highly classi ed server Carol D Leonnig Tom Hamburger and Greg Miller White House lawyer moved transcript of rump call to classified server after Ukraine adviser raised alarms Post Oct 30 2019 42 The classified appendix to the Whistleblower Complaint provides further detail about these recordkeeping practices According to multiple White House of cials I spoke with the transcript of the President s call with President was placed into a computer system managed directly by the National Security Council NSC Directorate for Intelligence Programs This is a standalone computer system reserved for codeword-level intelligence information such as covert action According to information I received from White House of cials some officials voiced concerns internally that this would be an abuse of the system and was not consistent with the 16 Case Document 1 Filed 11 05 19 Page 17 of 32 responsibilities of the Directorate for Intelligence Programs Accorc'ling to White House Q icials I spoke with this was not the first time under this Administration that a Presidential transcript was placed into this codeword-level system solelyfor the purpose of protecting politically sensitit- e rather than national security sensitive informaticm 1d Classi ed Appendix at emphasis added 43 Public reporting in the wake ofthe release ofthe Whistleblower Complaint suggests that the White House took additional unusual action with respect to other records of President Trump s telephone calls with foreign leaders According to the Washington Post one point in 2018 Defense Department of cials were asked to send back transcripts of calls to the White House after Trump aides grew worried they could be disclosed according to former senior administration of cials Josh Dawsey and Carol D Leonnig Effort to shield Trump s call with Ukrainian leader was part of broader secrecy effort Washington Post Sept 26 2019 V Such efforts reportedly are the result ofthe President pressing aides to ensure that records do not become public Id Transferring records to the National Security Council s code-word-protected system reportedly requires a written request from a senior White House official such as the chief ofstaffor the national security adviser 1d The nr York Times reported that records of calls between President Trump and President Putin and between President Trump and Saudi Crown Prince Mohammed bin Salman are among the records that have been placed in a highly classi ed computer system Julian E Barnes Michael Crowley Matthew Rosenberg and Mark Mazzetti White House Classi ed Computer System Is Used to Hold Transcripts of Sensitive Calls New York Times Sept 27 2019 See also Pamela Brown Jim Sciutto and Kevin Liptak White House restricted access to Trump s calls with Putin and Saudi crown prince CNN Sept 28 2019 l7 Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 18 of 32 44 In a similar vein after his rst reported face to face meeting with President Putin in Hamburg Germany in July 2017 during the G-20 Summit President Trump con scated his interpreter s notes and ordered the interpreter not to disclose to anyone what he had heard including to administration of cials Peter Baker Trump and Putin Have Met Five Times What Was Said Is a Mystery New York Times Jan 15 2019 Greg Miller Trump has concealed details of his face-to-face encounters with Putin from senior of cials in administration Washington 1 an 13 2019 The interpreter for that summit as with every meeting President Trump has with foreign leaders was an employee or contractor ofthe State Department See 6 FAM 1530 Assignment oflnterpreters to Of cial Visits and High Level Meetings 45 After the Whistleblower Complaint was led the Acting Director of National Intelligence the White House and the Department ofJustice took steps to prevent Congress from accessing the complaint On August 26 2019 Intelligence Community Inspector General Michael K Atkinson disclosed the Whistleblower Complaint to Acting Director of National Intelligence Joseph Maguire ICIG August 26 2019 Letter to Acting Director Maguire at 1 Even though federal law requires the Director ofNational Intelligence to transmit to Congress a whistleblower complaint deemed by the inspector general to be a matter of urgent concern and credible see 50 U S C 3033 k 5 Acting Director Maguire failed to do so within the prescribed statutory deadline Instead Acting Director Maguire consulted the White House and Of ce of Legal Counsel Zachary Cohen Acting spy chieftells Congress the did the right thing CNN Sept 26 2019 46 On September 25 2019 the White House released a memorandum ofthe President s July 25 2019 telephone conversation with President 18 Case Document 1 Filed 11 05 19 Page 19 of 32 Memcom According to the Memcom after President acknowledged the United States great support in the area of defense and his readiness to continue to cooperate including by buy ing more Iavelins from the United States for defense purposes President Trump reSponded as follows I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it I would like you to find out what happened with this whole situation with Ukraine they say I guess you have one of your wealthy people The server they say Ukraine has it There are a lot of things that went on the whole situation I think you re surrounding yourself with some of the same people I would like to have the Attorney General call you or your pe0ple and I would like you to get to the bottom of it As you saw yesterday that whole nonsense ended with a very poor performance by a man named Robert Mueller an incompetent performance but they say a lot of it started with Ukraine Whatever you can do it s very important that you do it if that s possible Meme-om at 2 3 47 The Memcom also confirms the whistleblower s description of the President s efforts to induce President to dig up dirt on Joe and Hunter Biden After asking President to take calls from his personal lawyer Rudy Giuliani and from Attorney General William Barr the President stated There s a lot oftalk about Biden s son that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great Memcom at 3 4 48 On September 24 2019 House Speaker Nancy Pelosi announced that the House was initiating a formal impeachment inquiry against President Trump based on his efforts to enlist the Ukrainian to tarnish his political rival Joe Biden She noted that the sequencing of events including President Trump s decision to withhold aid days before his telephone call with President is a part ofthe investigation Scott Pelley The 19 Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 20 of 32 Impeachment Inquiry We Could Not Ignore What the President Did CBS News Sept 30 2019 49 As part of the impeachment inquiry the House has conducted interviews with a number of people with knowledge of the events the histleblower Complaint describes including inter alia Ambassador Gordon Sondland former Ambassador to Ukraine Marie Yovanovitch former National Security Council advisor Dr Fiona Hill Ambassador William Taylor the US top envoy to Ukraine and Army Lt Col Vindman Each has provided startling details that corroborate and expand on the actions of the President and others acting at his direction that the Whistleblower Complaint outlines Broadly speaking they described efforts by President Trump and top administration officials to pressure foreign leaders to act in a way that advances the President s personal interests to the detriment of the interest and security of the United States 50 For example on October 14 2019 Dr Hill testified to a meeting she attended on July 10 2019 along with then National Security Advisor John Bolton Ambassador Sondland and senior Ukrainian officials during which Ambassador Sondland made clear his desire that the Ukrainians look into Joe and Hunter Biden as part ofa larger plan he Giuliani and acting chiefofstaffMick Mulvaney were executing Alex Ward Former White House of cial bolsters the Trump Ukraine whistleblower s allegations Var Oct 15 2019 Following the meeting Mr Bolton advised Dr Hill to tell the National Security Council s top lawyer lohn Eisenberg about his discomfort with what he described as a drug deal Sondland and Mulvaney are cooking In her congressional testimony Dr Hill also described a conversation she had had with Ambassador Sondland in which he said he was in charge of Ukraine policy under the authority of President Trump Id 20 Case Document 1 Filed 11 05 19 Page 21 of 32 51 On October 22 2019 Ambassador Taylor also testi ed as part of Congress impeachment inquiry His opening statement offers a wealth of detail about the events described in the Whistleblower Complaint corroborating the whistleblox-ver s information about a White House directive to withhold assistance to Ukraine pezting Statement of A mbassador William B Taylor October 22 2019 JJ'QIS tingion Post Oct 23 2019 Taylor Opening Statement 52 Most significantly for purposes of the FRA Ambassador Taylor described diplomatic efforts in Ukraine that involved an irregular or shadow diplomatic channel that was pursuing in secret a different goal than the regular diplomatic channel Ambassador Taylor and other State Department officials were using As an example in his congressional testimony Ambassador Taylor described a telephone call with President on June 28 that included in addition to Ambassador Taylor Ambassadors Sondland and Volker and Energy Secretary Rick Perry He noted how odd it was that Ambassador Sondland was not including most of the regular interagency participants in the call and further that Ambassador Sondland said that he wanted to make sure no one was transcribing or monitoring as they added President to the call Taylor Opening Statement at 5 53 Ambassador Taylor laid out the sequence of events that pre and post-dated President Trump s July 25 telephone call with President He explained that an OMB official relayed the White House decision to withhold aid to him and other officials in an interagency meeting on July 18 2019 although the OMB official could not say why the hold was in place but that the directive had come from the President to the Chief of Staff and Director of OMB Mick Mulvaney to Id at 6 see also Karoun Demirjian Josh Dawsey Ellen Nakashima and Carol D Leonig Trump Ordered Hold on Militarv Aid Davs 21 Case Document 1 Filed 11 05 19 Page 22 of 32 Before Calling Ukrainian President Officials Say Washington Post Sept 23 2019 54 According to Ambassador Taylor a series of interagency meetings followed the announcement in which the unanimous conclusion was that the security assistance should be resumed the hold lifted At one point the Defense Department was asked to perform an analysis of the effectiveness of the assistance Within a day the Defense Department came back with the determination that the assistance was effective and should be resumed T he Secretaries of Defense and State the CIA Director and the National Security Advisor sought a joint meeting with the President to convince him to release the hold but such a meeting was hard to schedule and the hold lasted well into September Taylor Opening Statement at 6-7 55 Ambassador Taylor explained that he ultimately came to understand that the hold on security assistance was explicitly tied to the Ukrainians willingness to investigate the Bidens and alleged Ukrainian interference in the 2016 US election Id at 1 1 14 He described a series ofexchanges in which Ambassador Sondland explained that everything including security assistance was dependent on President public announcement of such investigations and that he Ambassador Sondland had advised President to tell President Trump that Ukraine would leave no stone unturned with respect to investigations Id at 8 13 Ambassador Taylor later learned the details of President Trump s July 25 call with President after the White House released a rough transcript of the call on September 25 2019 1 1 at 14 56 Significantly Ambassador Taylor described a process in which Ambassador Sondland engaged President as part of an irregular informal channel of US policy- making that also included then Special Envoy Kurt Volker Secretary ofEnergy Perry and 22 Case Document 1 Filed 11 05 19 Page 23 of 32 President Trump s personal lawyer Rudy Giuliani Id at 4 Ambassador Taylor described the existence of this irregular diplomatic channel as confusing and ultimately Id at 3 Although well-connected in Washington the irregular channel Operated mostly outside of official State Department channels and began when Ambassador Volker Ambassador Sondland Secretary Perry and Senator Ron Johnson briefed President Trump on May 23 upon their return from President inauguration Id at 4 57 According to Ambassador Taylor by August 2019 the regular and the irregular channels had diverged in their objectives causing him to become increasingly concerned Id at 4 5 While the two channels started off sharing the goal of a meeting between Presidents Trump and Ambassador Taylor soon learned that President Trump would not agree to such a meeting until President agreed to cooperation on investigations to get to the bottom ofthings Id at 5 By mid-July Ambassador Taylor nally learned precisely what this meant specifically that the meeting President wanted was conditioned on the investigations of Burisma and alleged Ukrainian interference in the 2016 US elections Id at 6 It also was clear to him by that time that this condition was driven by the irregular policy channel I had come to understand was guided by Mr Giuliani Id 58 Similarly Ambassador Taylor subsequently learned in a July 19 telephone call with Dr Hill and Army Lt Col Vindman that Ambassador Volker had met with Mr Giuliani to discuss Ukraine When Ambassador Taylor followed up with Ambassador Volker about the meeting and when he received no response he realized that the two decision making channels the regular and irregular were separate and at odds Id at 7 59 Although Ambassador Taylor is the Chief of Mission in Ukraine he described in his congressional testimony how much in the dark he was about the conditions President Trump 23 Case Document 1 Filed 11 05 19 Page 24 of 32 had placed on any meeting with President He also expressed his growing distress with President Trump s insist ence that President go to a microphone and say he is opening investigations of Biden and 2016 election 1d at 12 Ambassador Taylor understood that unless President things up in public they would be at a stalemate which he understood to mean that Ukraine would not receive the much-needed military assistance Id Ambassador Taylor told Ambassadors Sondland and Volker think it s crazy to withhold security assistance for help with a political campaign Id at 13 60 Congressional testimony also has revealed that Ambassadors Volker and Sondland along with Mr Giuliani communicated using an messenger app WhatsApp On October 3 2019 the Chairs ofthe House Committee on Foreign Affairs the House Permanent Select Committee on Intelligence and the House Committee on Oversight and Reform sent a letter to the members ofthe three Committees that included as an attachment text messages from Ambassador Volker to Ambassadors Taylor and Sondland Andrey Yermak an aide to President and Rudy Giuliani Letter to Members ofthe Intelligence Oversight and Reform and Foreign Affairs Committees Oct 3 House Letter Those text messages further evidence the irregular or shadow diplomacy channel that was used to among other things place pressure on Ukraine to deliver on the President s demand for Ukraine to launch politically motivated investigations Oct 3 House Letter at 2 61 The circumstances under which the State Department eventually acquired copies ofthese messages make clear they were not placed into a State Department recordkeeping system upon or even shortly after their creation It was only after Ambassadors Volker Sondland and others received congressional subpoenas to produce the records as part ofthe 24 Case Document 1 Filed 11 05 19 Page 25 of 32 House impeachment inquiry that they provided at least some of cials at the State Department with copies 62 Reportedly the use of personal phones and an messenger app is wideSpread at the State Department both during the conduct of US policy on Ukraine and for the conduct of other State Department business See John Hudson and Karoun Demirjian Clinton-email critics pull a role reversal as Trump administration draws fire for private phone LIE Washington Post Oct 9 2019 63 This conduct appears to mirror that of other government of cials who used communications in a way that stymied the investigation of Special Counsel Robert Mueller In his Report on the Invesiigoiion Into Russian Interference In the 20 6 Presidential Eiection Mr Mueller noted in his executive summary the Office learned that some ofthe individuals we interviewed or whose conduct we investigatedbincluding some associated with the Trump Campaign deleted relevant communications or communicated during the relevant period using applications that feature or that do not provide for long-term retention of data or communications records Executive Summary to Volume I at 10 64 Congressional testimony in the impeachment proceeding from Acting Assistant Secretary of European and Eurasian Affairs Philip Reeker has addressed at least in part Secretary Pompeo s role in the administration s dealings with Ukraine Mike Lillis State Dept official broached Pompeo s role in Ukraine in new testimony The Oct 26 2019 Secretary Pompeo removed the former Ambassador to Ukraine Marie Yovanovitch after she voiced concerns that the administration had crossed a line in enlisting foreign help to boost Trump s 2020 campaign 1d Reportedly Mr Reeker led an effort to rally support for but was urged not to by top State Department Vivian 25 Case Document 1 Filed 11 05 19 Page 26 of 32 Salama State Department s Philip Reeker Testi ed Top Officials Blocked Show of Support for Ousted Ambassador Wall Street Journal Oct 27 2019 65 Secretary Pompeo initially denied any familiarity with the details of the Whistleblower Complaint but finally admitted he was among the officials who listened in on the July 25 phone call Deirdre Shesgreen was on the phone call Pompeo acknowledges he was listening to Trump s phone call with Ukraine president USA Today Oct 2 2019 For his part Rudy Giuliani has claimed that he did not talk to a Ukrainian official until the State Department called me and asked me to do it after which he reported to every conversation back to them Justin Garagona Rudy Giuliani State Department Asked Me to Look Into Ukraine Daily Beast Sept 25 2019 Despite his involvement Secretary Pompeo has ignored calls for him to recuse himself from Ukraine related matters Shesgreen USA Today Oct 2 2019 66 Accurate records ofthe United States interactions with foreign leaders and their representatives are a matter of extreme importance for the nation s foreign policy and for the historical record As Ambassador Taylor demonstrated in his congressional testimony timely access to information about ongoing diplomatic efforts is critical in advancing and protecting the interests of the United States including its national security interests Ambassador Taylor described the strategic importance of Ukraine in our effort to create a whole free Europe which in the past the United States has advanced with assistance funding both civilian and military and political support Taylor Opening Statement at 15 The side channels along with quid pro quos corruption and interference in elections id at 14 hinder those efforts 67 Those interests are heightened in a presidency that has been marked by departures from the normal procedures ofinternational diplomacy including the use ofa shadow irregular 26 Case 1 19-cv-03324 Document 1 Filed 11 05 19 Page 27 of 32 and off-the-books channel to conduct foreign diplomacy in an effort to conceal the efforts by the President and other top aids to enlist the aid of autocratic foreign leaders to advance the President s personal and political interests For example Senior White House Advisor Jared Kushner whom the President has charged with bringing peace to the Middle East earlier this year met in Saudi Arabia with Saudi Crown Prince Mohammed bin Salman and King Salman According to a White House statement the three discussed the peace efforts as well as American-Saudi cooperation and plans to improve conditions in the region through investment Ben Hubbard Kushner Met With Saudi Crown Prince to Push Mideast Peace Plan New York Times Feb 27 2019 Reportedly US embassy staff in Riyadh were not read in on the details of Jared Kushner s trip or the meetings he held with members of the country s Royal Erin Banco Embassy Staffers Sav Jared Kushner Shut Them Out of Saudi Meetings Daily Beast Mar 7 2019 The only State Department official who was allowed to attend the meeting is someone who focuses on Iran 10 As a result the US embassy was largely left in the dark on the details of Kushner s schedule and his conversations with Saudi Id 68 Moreover like top State Department of cials Mr Kushner reportedly also used the message service WhatsApp as well as a personal email account to conduct official business including to communicate with Saudi Crown Prince Mohammed bin Salman Andrew Desiderio and Kyle Cheney Cummings demands docs on Kushner s alleged use app for official business Politico Mar 21 2019 White House Advisor lvanka Trump also reportedly conducts official White House business through a personal email account as did former Deputy National Security Adviser K T McFarland when communicating about the transfer of sensitive US nuclear technology to Saudi Arabia id 27 Case Document 1 Filed 11 05 19 Page 28 of 32 notwithstanding the statutory requirement that they use only their official electronic message accounts except in certain Specifically prescribed circumstances 44 U S C 2209 a CLAIMS FOR RELIEF CLAIM ONE For a Declaratory Judgment that the Pattern anti Practice of Defendants Pompeo and the State Department of Affirmatively Electing Not to Create and Preserve Records Adequately Documenting the Organization Functions Policies Decisions Procedures and Essential Transactions of the State Department ls Arbitrary Capricious and Contrary to the ERA and for an Order Compelling Defendants Pompeo and the State Department to Af rmatively Electing Not to Create and Preserve Records Adequately Documenting the Organization Functions Policies Decisions Procedures and Essential Transactions of the State Department 69 Plaintiffs re allege and incorporate by reference all preceding paragraphs 70 The FRA requires the head of each federal agency to both make and preserve as federal records all records containing adequate and proper documentation ofthe organization functions policies decisions procedures and essential transactions ofthe agency 36 CPR 1222 22 They also must document the formulation and execution of basic policies and decisions and the taking of necessary actions including all substantive decisions and commitment reached orally person-to-person by telecommunications or in conference or electronically Id They must also identify and prescribe specific categories of records that must be systematically created or received and maintained by agency personnel 36 CPR 71 Despite these unambiguous requirements Secretary Pompeo and other State Department officials have followed a pattern and practice of affirmatively electing not to create and preserve records adequately documenting the organization functions policies decisions procedures and essential transactions ofthe State Department to keep secret the shadow diplomacy being conducted in furtherance ofthe President s personal and political interests 28 Case Document 1 Filed 11 05 19 Page 29 of 32 72 Secretary Pompeo and other top State Department officials also have directed other State Department employees not to create and preserve records adequately documenting the organization functions policies decisions procedures and essential transactions of the State Department to keep secret the shadow diplomacy being conducted in furtherance ofthe President s personal and political interests 73 Further Secretary Pompeo and other top State Department officials have failed to identify and prescribe specific categories of records to be systematically created or received and maintained by agency personnel creating circumstances in which State Department employees have participated in a shadow diplomacy being conducted in furtherance ofthe President s personal and political interests 74 As a result plaintiffs have been denied present and future access to important agency documents that would shed light on the conduct of State Department officials and the reasons for their actions and decisions 75 Plaintiffs therefore are entitled to a declaration that defendants Secretary Pompeo and the State Department are in violation oftheir statutory duties under 44 U S C 3101 3301 and implementing NARA regulations 36 CPR 1222 22 and an order compelling them to make and preserve as federal records all records containing adequate and proper documentation ofthe organization functions policies decisions procedures and essential transactions ofthe State Department CLAIM TWO For a Declaratory Judgment that Defendants Pompeo and the State Department Have Failed to Establish and Maintain an Adequate Program to Preserve Federal Records In Compliance With the FRA and For an Order Compelling Defendants Pompeo and the State Department to Establish and Maintain an FRA-Compliant Program 76 Plaintiffs re allege and incorporate by reference all preceding paragraphs 29 Case Document 1 Filed 11 05 19 Page 30 of 32 77 The FRA requires the head of each federal agency to establish and maintain a records management program that provides for effective controls over the agency s records and to cooperate with the Archivist in applying standards and procedures for the maintenance and security ofthe records deemed appropriate for preservation 44 U S C 3102 The head of each federal agency also must establish safeguards against the removal or loss of records the agency head determines to be necessary and required by regulations the Archivist promulgates 44 U S C 3105 78 Notwithstanding the evidence of widespread non-compliance at the State Department with recordkeeping requirements particularly with respect to the use of private phones and email accounts and messenger apps to send messages the State Department through agency regulations has delegated to each agency employee the apparently unchecked discretion to create and preserve records that properly and adequately document the organization functions policies decisions procedures and essential transactions ofthe Department 5 FAM 422 3 The lack of effective controls over the agency s records program has resulted in the absence of records explaining or documenting key functions policies decisions procedures and essential transactions ofthe State Department thereby depriving plaintiffs of present and future access to important agency documents that would shed light on the conduct ofState Department officials and the bases for their actions and decisions 79 Plaintiffs therefore are entitled to a declaratory order that the failure of Secretary Pompeo and the State Department to maintain a program to adequately document agency decisions and activities is in violation of 5 U S C 702 706 and an injunction compelling Secretary Pompeo and the State Department to maintain a records management program to adequately document agency decisions and activities Case Document 1 Filed 11 05 19 Page 31 of 32 PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request that this Court 1 Declare that the Defendants policy and practice of failing to create and preserve records adequately and properly documenting the organization functions policies decisions procedures and essential transactions of the State Department violates the FRA 2 Issue injunctive relief compelling Secretary Pompeo and the State Department to maintain an adequate and pr0per record of the State Department s organization functions policies decisions procedures and essential transactions 3 Declare that Defendants have failed to maintain a program to adequately document the State Department s organization functions policies decisions procedures and essential transactions 4 Issue injunctiye relief compelling Secretary Pompeo and the State Department to maintain a program to adequately document the State Department s organization functions policies decisions procedures and essential transactions 5 Grant such other and further relief as the Court may deem just and proper Respectfully submitted Am fe L Weismann D C Bar No 298190 Conor M Shaw D C Bar No 1032074 1 101 Street N W Suite 201 Washington DC 20005 Phone 202 408-5565 Email Email BAKER 8 MCKENZIE LLP 31 Case Document 1 Filed 11 05 19 Page 32 of 32 Dated November 5 2019 George M Clarke 111 D C Bar No 480073 Mireille R Oldak D C Bar No 1027998 815 Connecticut Avenue NW Washington D C 20006 Phone 202 835 6184 Fax 202 416-7184 Email Email Artoz'neysfor