The U.S. Court of Appeals for the District of Columbia Circuit on Friday overturned a decision allowing the United States Justice Department to withhold records concerning former Acting U.S. Attorney General Sally Yates’ 2017 refusal to defend former President Donald Trump’s travel ban targeting seven Muslim-majority nations.
As one of his firsts acts as president, Trump signed Executive Order No. 13769 (EO-1), which suspended entry for 90 days of foreign nationals from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) identified by the government as presenting heightened terrorism-related risks. EO-1 was challenged in federal district court by multiple states, and a nationwide temporary restraining order was implemented. But rather than trying to litigate the matter, the administration revoked the Order and issue a new one. Executive Order 13780 (EO-2) implemented a 90-day suspension on the entry of nationals from all the previously listed countries, except Iraq, due to the need to allegedly prevent infiltration by foreign terrorists.
On the same day EO-2 was expiring, then-President Trump issued Proclamation No. 9645 that restricted travel to the United States by citizens from eight countries, while eliminating the ban against entry of citizens from Sudan. Hawaii and other states challenged all three versions of the “travel ban” leading the lower federal courts and the Court of Appeals to issue an injunction. The case was then appealed to the Supreme Court.
In a 5-4 decision, the Court held that under 8 U.S. C. §1182(f) of the Immigration and Nationality Act, former President Trump’s Proclamation was a lawful exercise of the President’s statutory authority and did not violate the Establishment Clause. The Court stated that Trump lawfully exercised his broad discretion when “suspending the entry of aliens” into the United States.
Despite the Court’s favorable ruling, former Attorney General Yates issued a four-paragraph statement declaring that, “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order (referring to EO-1 and EO-2), unless and until I become convinced that it is appropriate to do so.” President Trump fired Yates the day she released that statement.
Two months later, Judicial Watch, a conservative activist group, filed a Freedom of Information Act suit seeking attachments to four emails sent to and from Yates’s DOJ email account on the day she issued the statement. The DOJ declined to release the attachments, invoking the deliberative process privilege set forth in FOIA Exemption 5. The district court granted summary judgment in favor of the government, but on Friday the Appeals Court reversed.
The Appeals Court found that the DOJ failed to demonstrate the attachments were “deliberative”, a requirement of a document under FOIA Exemption 5. The Court further explained that in order to demonstrate that a document is deliberative, a statement by the document drafter explaining why their disclosure would reveal the drafters’ evolving thought-processes is needed. The DOJ did not provide such information. “It never identified who prepared the attachments or to whom the attachments were addressed.”
The Appeals Court remanded the case and instructed the district court to review the actual attachments and determine whether they qualify as “deliberative” and, if so, whether they should still be withheld.
