Judge Not Impressed With DOJ's Attempt To Claim Presidential Tweets And Orders Don't Mean Anything
from the nice-try dept
The DOJ wants its secrecy. The President keeps taking it away. Over the past couple of years, FOIA litigants have received unexpected support from President Trump, often in the form of tweets. While the DOJ is arguing nothing the records seekers are seeking should be handed over, Trump is tweeting out demands that everything should be released -- largely due to his unwavering belief that selective transparency will somehow expose a massive Deep State operation against him and his associates.
The stuff Trump wants exposed relates to FISA court orders and other documents related to investigations of Trump's campaign team and their ties to Russia. Trump is convinced there's nothing there and wants the public to see this for themselves. It's inadvertently commendable, even though there's a strong possibility the documents won't actually prove what Trump thinks they'll prove.
Nonetheless, the friction between the DOJ's FISA-related opacity and Trump's Twitter account continues, as Josh Gerstein reports for Politico.
The Justice Department had urged U.S. District Court Judge Amit Mehta to shut down the Freedom of Information Act suit, arguing that all the unreleased parts of the warrant for former Trump adviser Carter Page remain classified.
However, Mehta said a series of factors combined to create a factual dispute denying the government victory in the case, at least for now. These included a Sept. 17 White House press release that said much of that information was declassified, Trump’s tweets four days later seeming to back away from the decision, and the Justice Department’s failure to adequately account for the statements.
The DOJ argued the tweet stating the DOJ had "agreed" to "release" the unredacted documents, as well as the White House press release ordering immediate declassification of parts of these documents, did not say the things they did. The DOJ's legal team claimed -- in a bunch of unsworn statements -- the President surely meant the opposite of the things he said.
Unsurprisingly, the court does not agree.
“Defendant offers no reason to believe that the Press Release inaccurately conveys the President’s ‘directive.‘ Thus, contrary to what Defendant says, it would appear that the President did make ‘his intentions clear ... to declassify information.’”
Not only that, but the DOJ ignored the press release entirely -- the one containing an order these documents be publicly-released. That didn't escape the notice of the court, which noted the DOJ did not submit anything at all referencing this order.
The DOJ also argued it could still withhold the information under other exemptions. Wrong again, the court declares. The DOJ cannot effectively nullify a presidential order simply by switching black-bar horses midstream.
The court is giving the DOJ a second chance to explain itself and its refusal to accept presidential orders and tweets at face value. But it will have to do so with sworn statements, rather than dropping a bunch of questionable assertions into the judge's inbox. In the meantime, it will have to hope the President stops handing FOIA plaintiffs tweeted gifts.
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Speculation
This may be apocryphal but my understanding is that only the original classifying authority has the ability to declassify something, and that that original classifying authority could be almost anyone. Now an executive branch order to some executive branch entity to declassify something might sound authoritative, but what if that order is refused?
What could happen? The original classifying authority might get fired, but what does that do to the 'classification'? Does it go to the next person up the chain? What if that fired person was part of a joint task force and reported to several people, and those several people disagree on whether they should declassify or not? Does everyone get fired and the decision move up another notch? The turnover in Trump's advisers suggests that disagreeing with the President will probably lead to job loss, but that does nothing to clean up the mess of getting things declassified when ordered to.
Then, there is of course, the question of whether the President actually understands the purpose of the original classification and ordering declassification would do some actual harm with willy nilly orders to do something politically motivated, rather than security motivated.
Now I am not for classification. I think the government should be much more open about what it does in our name, and while I respect that classifying something because it could put persons at risk seems reasonable, there should be time limits, such as X amount of time after those persons were no longer at risk, and that that X amount of time should be measured in years or months, not decades. There is no good reason for classification to cover embarrassment or incompetence, as the public has a right to know about those.
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Re: Speculation
The entire modern classification system is based on a system laid out by executive order (and revised repeatedly by executive order) with only rare judicial intervention. It is true that other classification systems existed before then, but the authority is derived from the national security role of the executive. The president has the ultimate authority to declare material classified or not, as any classification is derived from the power of the executive. Anyone who classifies or declassifies material is doing so under delegated authority from the president. This is confirmed in Department of Navy vs. Egan. The original classifying authority is the president. Always.
You are thinking of restrictions on different departments of the executive branch declassifying materials other branches classified. That isn't allowed, because (in a wildly outrageous example) The National Park Service probably isn't in a position to assess why the CIA classified some information. Its spelled out in those executive orders.
Certainly we over classify in the US, but the judiciary is loath to assess the intent of classification, generally accepting reasoning that is little more than a hand wave. But that's not a flaw of classification in general.
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Re: Speculation
The problem with your speculation is the the President is the ultimate classification authority, because the classification system was created by Presidential Executive Order, not by Congress. (If you are interested it is Executive Order 13526).
Additionally, it would be the classifying authority, or their superior, who can de-classsify something. This becomes important when assigning duties.
For example: As a E-4, I was the COMSEC Custodian for my unit when I was in the military. My orders for this additional duty were signed by the Post Commander, rather than my more immediate chain of command so that no person except him, or his superiors, could order me to violate the responsibilities of my position. If a 1 star general ordered me to unlock my crypto safe, I could refuse based on the authority of my position.
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Re: Re: Speculation
Amazingly, 13526 must be the only EO by Obama trump didn't try and throw in the shredder, which is odd, because most presidents have redone that EO by now.
13526 was by Obama and done December 09 replacing
13292 by Bush-43, which was done March 21 03, which replaced
12958 done by Clinton in 95...
So either he doesn't know about the EO (or how classification actually works, which is extremely improbable given he 'knows more about it than the generals'); OR hes just tweeting 'for the lulz' to troll people, and the court.
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"...stops handing FOIA plaintiffs with tweeted gifts."
What would you prefer he be "handing" them with?
Or did that "with" just slip in there?
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Re:
could replace 'handing' with 'gifting' to make it more clear.
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Re:
Or it was supposed to be Handling, which took me reading your complaint several times to realize the word was 'handing' rather than 'handling'. Which also suggests it was an editorial error - wording was changed, but one word was missed because they are so similar. Its an error I make all the time when I actually compose comments and edit my wording for clarity.
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Re: Re:
I thought it was funny, I must be a nazi. I think "with" is extra. "Handling" doesn't make comprehensive sense to me, sorry for your reading comprehension if it does to you. Good to know this about someone who has questioned my reading comprehension.
He isn't "handling" them in any way with regards to the article but he is handing them gifts. That is what I comprehended.
"Its an error I make all the time when I actually compose comments and edit my wording for clarity."
Maybe you should quit editing
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On second thought…
In the comments section of another techdirt Post, I advocated Twitter ban Trumpy’s twitter account.
I’ve changed my mind. It should be kept up if it means he spills more government secrets that should be public in the first place. Trumpy’s upper anus could be the gift transparency advocates have wanted all along!
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I feel your pain DOJ, I feel your pain...
I too wish it was possible to safely ignore anything Trump says and act as though it didn't exist, but sadly that's not currently the case.
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