the people to have the history of those actions preserved that balancing was done in a time of great conflict in american history when the legislative and executive branches were dealing with the fallout of the nixon abuse of power and trust and it reflected a sea chang how presidential records were considered and how they were to be maintained now as part of this balancing it is undeniably true that the president was given significant discretion in how to preserve the records of his presidency but it's also undeniably clear from the text of the p r itself that congress mandated the president to do three things to classify or you can call it categorize records as presidential or personal to implement policies and guidelines to do that consistently across his administration and also to take certain ministerial steps prior to destroying any of those records that were presidential the worst the use of the word shall and other similar mandatory language in those sections of the absolutely armstrong one in my view is a very strong and clear statement that there is no judicial review in this case of those who were talking about the creation management or destruction of records on the p r a it is not murder we covered by the order of the records and put them in the p r a coward who were in the court said no you can't do that and we were looking at guidelines that said that and we said of course we can look at that that's in  mission but for the nation to region get the citizens of war in the agencies you can't do that that's not this case it is case as i read i want back will i look over and over your complaint is talking about what the president goes with issue the issue is whether the judicial review your honor i think just stepping back that the armstrong two opinion did talk about four yes i absolutely agree that we know for and that's what when there was a classification decision at the beginning of the entire process that infected the rest of the process as you said that this specific last patient decision they're talking about there was saying this this these materials are presidential versus not there's agency so therefore it impacted foyer the classification decision they're talking about is one where you destroy a record before it can be classified ok yeah but the problem here is read control them that's not what this case is about this case is about records that are within the compass of the p r a and you want perfectly reasonable you're saying there are some ministerial decisions that are being made when you think about this technology this technology is preventing that initial classification of records and that is from that perspective something that we read on from one that's the consequences want groomsmen question and if you want the president to do one understanding armstrong one was that the federal records act was the basis of the authority for the court to police the line that the administration was drawing between what records are federal and what records are presidential right and here you are on the other side of the category of presidential you have a similar very very similar structure of inquiry which is is that is the president abusing the line here between the presidential records and personal records right and the question is what is the statutory authority on which the court rests in reviewing policing that line that plays an analogous role executive order is the claim for that's a banner exactly exactly but but the the question here is these documents will eventually be subject to four ok yes so but let's just focus on that you you were about to say you are your claim that you need to preserve these documents for a future for your cause founder that p r a your honor that factually that is correct and the government conceded standing on that basis i think the question is do we do we need to show that even though it's going to be five ten years from now that that that abuse of voyage is the only trigger that we have we don't view without that weight without that then without floyd then i'm completely with j are not are not reviewable and it actually has language saying that if there's if there's something that's going to give the president hard line just to take a whole category of relevancy season is go back to standing for me if  case at the end of the reason why if we ever never had any right to get these records the safe way didn't exist or that we had no right to get those records ultimately we would have no standing because it wouldn't matter the whole balance is about the people having the right to these records  the people's right to the records is that how do you have standing to play with out where the people i mean we are people of the united states and my clients are people that have people get access to the people get access  presidential records in the future through what right they do well then why why are you resisting saying that the key to your case is one i don't think i'm resisting saying it the way i i don't understand i don't think i'm resisting saying if the key if the the key is absolutely correct that the key ultimately to my client's getting these records is for you right that's what gives you standing that's what gives the people the right to the docket that's right your honor that's right in the in the district court was impacting the initial classification of records i don't think that spent result yet whether something like this that sweeps the whole category of documents off the table is not reviewable under the p r decisions including in the struction have everything is subject and then optional on to is a very different separate cases where there were written guidelines where the president overreach and the president's awake there are other records out there  i'm going to make them p r a because i have an advantage of putting in the p r category we reviewed those guidelines and said no that's nonsense you can't make up stuff like that and we said that's impermissible but it was a  talking about destruction we're talking about classification you can't destroy something without classifying it under the p r a these these these apps destroy it before anybody can look at it and classify it it's not it's it hasn't been categorized into presidential or personal records are personal records are that your honor i don't think they they are taking a position at all with respect to it right so if they stand up and say oh we have knowledge that these are presidential records there's no dispute here that any of the records at issue might be personal does your case go away it does it your honor because there have there has to be a  things ok and we can imagine hypotheticals in which i imagine if the if the guidelines said you can only use these apps for personal purposes and we delegate to you the decision you every use these  power to decide whether something's personal or presidential we might still try to argue that that's too much delegation but i think we'd have a problem at that point there were such a guideline if there were such a guideline so would you say there just needs to be something that the few more minutes thank you for  why this case cannot be distinguished the i mean to the extent that it can be this thing wish it only presents a far weaker case then armstrong why did armstrong to rest therefore what the court said was look i've got a potential there what clash between two statues i can enforce before you in that case and order is under what the way that i've understood the standing issue here in the reason that we didn't pursue it on appeal is that would planners are saying is eventually records under the presidential records act will be tom available correct and then at that distant date they have an interest in seeing going and then why this is lazy why isn't this case in a sense just like armstrong because the let me tell you my thinking is and you can tell me why i'm wrong in armstrong the court said this court said that  judicial review was necessary to prevent the president from using the presidential records act to sweep up documents that were otherwise covered by four right yes that's what that was all about yes there are  en here is that by failing to classify these messages messages that our presidential records are being destroyed and therefore in the future unavailable underfoot so just as judicial review was necessary in armstrong to protect access to documents under for him here judicial review is necessary to the fact that they eventually got can get documents down the road is not mean that right now all of the fighting there is no allegation here that these are documents that are subject to fo sense there's no classification requirement as a district court said there's no plans to fix haitian requirement in the sense that they mean we look we're all federal you know girl covered by the federal records act we're responsible for making sure that documents that are covered by the federal records act are appropriate lee preserved we make decisions all the time in the village will be that you know a note that we sent to somebody you know on a personal matter isn't conquered nobody thinks issued like very pale guidelines that is that are in place now and they specifically say you can't do anything that fails no basis for coming at them and to the extent there are supposedly violations armstrong also said with respect to the federal records that this court has no ability to police violent actions statute says they have to be classified as and it says that there are talks about categorization it doesn't say that you have to promulgated the only fact i mean like the there has been mean there are very clear instructions that claim is that the what's happened is that the that there's been a use of apps that of that is being allowed to effectively sort of by paid use of condoning we had a situation in which a president said to stop in the white house this is my house everything that's said here is personal not presidential record  and therefore doesn't need to be preserved is it your view as a matter of law that that practice policy would be completely of all under the presidential records act by the judiciary yes by congress no this was i mean look what happened here newspaper article comes out saying there's use of apps mediately congress contacts the white house counsel count that you have to one where another either by picking a screenshot or whatever you can do then those things path to be then moved in to the government records keeping and worried about oil later on because we want to see if it's later on is based on the assumption that there's a mandate the records will exist and there is no settlement you know of a law that's greg were resting on the good we own and good faith and the twenty two or three d of the statute since that documentary materials prepared for receipt by the president to the extent practical shall be categorized as presidential records or personal records right is your position that the memorandum doesn't is that your argument no the when we each got argument the decisions i mean this statute require presidential materials to be quote categorized as presidential or person records upon the creation of what we see that's what says has to happen is that people who work in either the justice department or in that case the white house are responsible for making sure the documents that are properly sort of now did come within one of the statutes they have to make categorizations it's not that in my case the attorney general mixon categorizations or establishes a means of oversight but you told like i'm told you better like comply with the law and with my view about this was the same as judge edwards it looks to me like i mean it's a no brainer the part the president has to do this under the statute and the allegation is it isn't being done and if the memory of not there your only argument is i exist they automatically eliminate the recent messages and there's no catalog them those are the allegations in the complaint that's it and in fact you may alternately be told by that the only thing that's required is that the officials each make a decision about whether whether they're personal or presidential but here you've got an algorithm doing that automatically right right and we have to accept the allegations as truth and view them in the light most favorable to the plaintiff right yes ok if i look if you're going to be you need to argue your case based on the record that we are supposed to write the only point there is trying to make is that if you use an app to you have to decide in the same way that you would if you were just writing a piece of paper and then you were going to throw it away if you're that you know wasn't going to make it look like i wasn't going to keep a record you would have to decide is th a presidential record or not you have to make the same classification decision that you would if you wrote any piece of paper and then you were going to throw it away and that's all i'm getting from those allegation when they're created and without the approval of the office of the white house and you should not use it's a messaging system social networks or other in a net based means of electronic communications to conduct official business right so they're saying don't do this perry you don't use things like signal in combat and so your case is ok maybe people are using them but that would be in violation of white house guidelines and if they were using them for official business that and not preserving because the apps are designed not to preserve that would be in violation of white house this white house and i'm out and would be in violation of the presidential records act but it is under armstrong one not enforceable by this court harriet that's correct and ok then let me as a second question assume hypothetically ok that the memorandum is not properly before any individual compliance with it that's armstrong supposes no memorandum because it's not part of the record that i think we're at the same hypothetical i think we're at the same place that you would be saying that because i thought your point was is that the memorandum satisfied the president's obligation under the presidential records act the classified because you agreed these have to be classified somewhere someone's got to do it right now if we take the memorandum off the table what in the record tells us where the classification is being done it would be i mean again i think it's being done at the same level in the league think where in the record do we there's a question that i understand to have been asked which is that supposing the guidelines have issued and we hand in asian to people who are using a particular app that they knew could make a note because the very provision that you just read is followed his statement saying if you ever generate a receipt presidential records on such platforms you must preserve them by sending them to your email account be a screenshot or other means which is presume that you could actually take a phone and take a picture of that one that's actually on the f b i as people do this and you take a picture of that other message on it and then capture it that way so if you don't go away either way it can be done  understanding in good faith my obligations i would understand this to prohibit me from using signal or confide or official business because first of all it says that i shouldn't use internet based means of electronic communication without without the approval of the white house counsel and presumably try to get approval of the white house counsel to signal or confide i wouldn't be able to because i would be able to preserve them so if we assume the people in the white house  reading that as understanding and as fully as they can in operating in good faith they will not use signal or confide at all for heschel business isn't that the case you're out of this entire discussion is the reason why this should be happening at the district court under  notwithstanding that there may be people who are using right i understand that salvations of your complaint but i'm just saying this on its face and i'm trying to assess if this is properly before us as tantamount to an agency guidance or a legal rule or regulation not triggering a rule fifty six and summary judgment questions if it's properly before us that then the questions about whether there might actually be receive you're supposed to do this and you can't do it i think they're talking about apps here that you can do that now but it immediately follows that you cannot use them unless you have white house council approval and so we're thinking ok some people like you know some people who are doing twitter let's say on the sole basis how the white house counsel's approval and they know that they preserve them by sending the e o p e mail account right absolutely  and those sorts of apps or what this did just based on your reasoning right there that's how i read this too i read this is saying those sorts of apps the kind of apps that actually preserve things because that we're not supposed to do it unless you get authorization and if you do do it you're supposed to forward them these apps don't fall into that category which is why our position is they don't they're not having any given this guidance why isn't any use of those apps a question of whether the staff are are not following the guidance that the that the white house counsel has provided because it's not absolute the next sentence very next sentence is you know you can do something else with if you do it counsel i don't read it that way your honor i don't i think if you ever generate is not connected to approval let me ask you this since this is an official since you're not contest right that at least with respect to to these are ministerial but but but this is serious question as to whether or not so that something has to happen but we've got this presidential memorandum  these this guidance and yes it hasn't been so we sent it back to the district court for the district court to let you in the government argue about whether it's it's an it is in fact a response to the cataloguing to the categorization requirement i mean i think that would be that that wouldn't be an unreasonable outcome in the case your honor and i think at that point one thing that it is sort of surprising you could imagine an id person of the white house simply having a declaration at the lower court saying that no one is ever using these or allowed to use them they're banned they didn't put that in the right ear but then the counter my question for you is if you agree that we can't the courts can't review the guidelines  then what's what's what's to go what difference does it make whether this is the thanks and these are the guidelines i don't agree but you can imagine if that memo said classification guidelines you should use your own judgment with respect to classified there's some point where the classification guidelines don't make sense and what we're saying is these don't make sense as to those ou