By Josh Gerstein
June 06, 2017
The Justice Department is fighting a legal attempt to force disclosure of a campaign document that may have served as the basis for President Donald Trump’s travel ban executive orders.
At issue is a policy memo former New York Mayor Rudy Giuliani helped to crafted last year in response to what he described as Trump’s request for a way to carry out the Muslim ban he proposed, while doing so “legally.” The “commission” Trump requested Giuliani assemble to carry out the task included former Attorney General Michael Mukasey as well as Reps. Mike McCaul (R-Texas) and Peter King (R-N.Y.), the ex-mayor said.
Plaintiffs in a Detroit-based suit challenging Trump’s travel ban orders are demanding the proposal the group produced in mid-2016. Lawyers for the Arab-American Civil Rights League say the memo could shed light on whether the executive orders Trump issued in January and March were motivated by religious prejudice.
In a court filing late Monday, Justice Department attorneys unleashed a fusillade of objections to the request, arguing that it is misdirected, that it’s irrelevant to the legality of the Trump orders and that forcing government officials to search for the memo would be burdensome and intrusive.
“Requiring a search of massive troves of government files for one private campaign document is…unreasonable when there are more obvious third-party owners of the document at issue,” wrote Justice Department lawyer Katherine Shinners and other attorneys. They noted that while the lawsuit names several large federal agencies as well as Trump in his capacity as president, the Trump campaign is not among the defendants, nor is Trump personally.
The Justice Department also questions why the plaintiffs don’t simply seek the document from the Trump campaign directly or from Giuliani.
“Searching for private, nongovernmental documents within the Department of State, the Department of Homeland Security, the Office of the Director of National Intelligence, and the Department of Justice constitutes an unwarranted disruption of executive operations,” Shinners wrote.
Lawyers for the Arab-American group argued that the standard practice in litigation is to seek relevant documents from the opposing parties in the case before resorting to demands from other entities.
The Justice Department filing also reiterates an argument the Trump administration has made in a variety of other court challenges: that the motivations behind the orders are irrelevant because legal precedents call for the orders to be judged solely by what they say.
If judges accept that standard, there would be no reason to inquire into the process that led up to issuance of the orders. However, most of the courts who have ruled on Trump’s most recent travel ban order have rejected that approach. One judge who essentially upheld the order still held that it was appropriate for the courts to look beyond the order itself.
The Detroit-based suit is before U.S. District Court Judge Victoria Roberts, a Clinton appointee who suggested in an order last month that she was inclined to order disclosure of the memo. Roberts said that the government’s arguments that Trump’s pre-inauguration statements had no official import meant they could not be protected by executive privilege or similar protections for government policymaking.
However, in the new filing, government lawyers continue to threaten the assertion of a variety of privileges to block disclosure of the memo. They suggest that an executive privilege claim could still be in the offing depending on “whether or not [the memo] was later used in the context of executive decisionmaking.” In addition, Justice Department lawyers said Trump’s campaign or Trump himself may claim the document is privileged as part of the campaign’s “internal deliberative materials.”
Josh Gerstein is a senior reporter for POLITICO.
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