Alter v DOJ

update 1/6/2026

UPDATED CASE

CASE DISMISSED

Judge Ali dismissed the case in what I thought was a fair-minded and serious analysis of the doctrinal constraints at issue, particularly the law governing discretionary conduct by an agency such as the DOJ. The case always rested on uncertain ground, and I much prefer a cogent, engaged dismissal to the alternative. I learned from the opinion.

While I continue to think Loper Bright plausibly afforded the court authority to appoint an independent investigator or prosecutor as a matter of common-sense statutory interpretation, that determination itself lies within judicial discretion. Judge Ali chose not to extend the doctrine in that direction, and he explained why.

I do not view the dismissal—entered without prejudice—as a rebuke, but as engagement. I appreciate the care with which the court addressed the issues.

PLAINTIFF’S OPPOSITION to DEFENDANT’S MOTION to DISMISS

I. Introduction

Plaintiff Joe Alter respectfully submits this opposition to the Department of Justice’s motion to dismiss. This case is not about second-guessing prosecutorial discretion in individual cases. It challenges the Department’s systemic and public refusal to investigate a sustained pattern of unlawful executive conduct—specifically, the destruction of presidential records through encrypted auto-deleting communications—despite clear statutory obligations under the Presidential Records Act (PRA), 44 U.S.C. §§ 2201–2209. Plaintiff has suffered a concrete legal injury by being denied access to records required by law to be preserved. The Court has jurisdiction to adjudicate this claim.

II. Standing

Plaintiff satisfies the requirements for Article III standing. The PRA mandates the preservation of presidential records. By permitting the continued use of unarchived, auto-deleting encrypted messaging platforms by senior officials, the Executive Branch has deprived Plaintiff—and the public—of records to which they are statutorily entitled. This constitutes an informational injury under FEC v. Akins, 524 U.S. 11 (1998). Unlike the generalized grievance at issue in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Plaintiff’s injury stems from a specific, ongoing deprivation of public records.

This injury is fairly traceable to the Department’s refusal to investigate or remediate these violations, and is redressable by the Court through declaratory and equitable relief. The APA authorizes courts to compel agency action unlawfully withheld, 5 U.S.C. § 706(1), and courts have granted such relief in analogous contexts. See Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993).

III. APA Review and Mandamus

The Department mischaracterizes Plaintiff’s claim as a challenge to a discretionary decision not to prosecute. In fact, the complaint challenges the Department’s blanket, public refusal to enforce the PRA in the face of acknowledged, ongoing violations. This is a textbook example of agency action ‘unlawfully withheld.’ As the D.C. Circuit held in Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013), the APA permits review when an agency refuses to enforce clear statutory commands.

Mandamus relief is also appropriate where an agency refuses to perform a nondiscretionary duty. Here, Plaintiff alleges that the DOJ has failed to uphold recordkeeping obligations and has foreclosed any good-faith enforcement of statutory law. This is not a request for specific prosecution, but for enforcement of structural obligations inherent in the DOJ’s public mandate.

IV. Conflict of Interest and Equitable Authority

The Department does not dispute that the alleged misconduct involves its own superiors and political allies. Attorney General Bondi’s public statement that the matter is ‘case closed,’ combined with the President’s mass firings of Inspectors General, underscores an institutional conflict of interest. Where DOJ is structurally incapacitated, courts have recognized the necessity of appointing an independent actor. See Morrison v. Olson, 487 U.S. 654 (1988). In addition, the Department of Defense’s own Inspector General and the Air Force Office of Special Investigations have launched investigations into senior aides to Secretary Pete Hegseth, including Ricky Buria and Tim Parlatore, for potential violations of federal records laws and misuse of encrypted messaging platforms for official business. Despite these ongoing inquiries, DOJ has publicly refused to act on the same facts, further confirming its incapacity to perform independent oversight where executive branch political appointees are implicated.

This contrast between DOD’s willingness to investigate and DOJ’s categorical refusal underscores the necessity of judicial intervention. The structural nature of the conflict here implicates all three branches of government. The Executive Branch is both the source of the misconduct and the gatekeeper of any federal prosecution. Congress lacks authority to appoint independent prosecutors and is itself deeply politicized on matters involving executive overreach. That leaves the Judiciary as the only institution capable of providing neutral oversight. The relief Plaintiff seeks—a court-appointed special prosecutor—is not only consistent with the Judiciary’s equitable powers, but constitutionally necessary when all internal mechanisms of accountability have failed or been compromised. Independence, in this case, must come from outside the Executive Branch and outside partisan influence. That is precisely what Article III courts are designed to guarantee. The question of whether senior Executive Branch officials continue to use encrypted, auto-deleting communications platforms for official government business is precisely the kind of systemic issue that an independent investigation must be empowered to examine.

DOJ’s refusal to conduct even preliminary inquiry into this broader pattern confirms its incapacity to serve as a neutral enforcer of federal recordkeeping law in this context. Judicially appointed oversight offers the only viable mechanism for ensuring that such violations—past, ongoing, or future—receive the scrutiny the law requires.

Plaintiff’s concern is further substantiated by then-President Trump’s own admission, documented in Exhibit 4 to the Complaint, that he did not instruct staff not to use Signal, but rather to ‘be smart about it.’ This statement evidences both awareness of the unlawful practice and a deliberate posture of evasion rather than correction. It further justifies the need for an independent investigation into whether such encrypted communications remain in use to obscure the public record.

This pattern of selective non-enforcement is not unique to this case.

Recent reports that DOJ declined to pursue further inquiry into the clemency review process for high-profile individuals, including Ghislaine Maxwell, further underscore the appearance of two-tiered justice. When the Department shields politically connected actors from scrutiny—despite clear public interest—and simultaneously refuses to investigate its own encrypted communications scandal, the perception of systemic bias becomes inescapable. This justifies the need for neutral, judicially ordered oversight.

Under the All Writs Act, 28 U.S.C. § 1651, this Court retains inherent equitable authority to prevent obstruction of justice and ensure legal compliance where no adequate remedy exists.

V. Conclusion

For the reasons stated above, Plaintiff respectfully requests that the Court deny the Department’s motion to dismiss and allow this case to proceed on the merits.

TABLE OF AUTHORITIES

Cases

FEC v. Akins, 524 U.S. 11 (1998)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993)

Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013)

Heckler v. Chaney, 470 U.S. 821 (1985)

Morrison v. Olson, 487 U.S. 654 (1988)

Statutes

Administrative Procedure Act, 5 U.S.C. §§ 702, 706

Presidential Records Act, 44 U.S.C. §§ 2201–2209

All Writs Act, 28 U.S.C. § 1651

Respectfully Submitted,

/s/ Joe Alter, In Pro Per
/7/31/2025