Search Results for: IRS

FBI Records Show Former FBI Director James Comey’s Use of Personal Email

November 9, 2018 by Staff

Cause of Action Institute has acquired former FBI Director James Comey’s work-related emails from his personal Gmail account. Garnered from the FBI through the first of rolling document productions in an ongoing Freedom of Information Act (FOIA) lawsuit, the email records start to shed light on the extent of Comey’s use of private email to conduct agency business.

The problems associated with using personal email for government work are obvious but those caught in the act often try to act like they had no idea they were doing anything wrong or justify their behavior as merely incidental. Cause of Action Institute (CoA Institute) has been at the forefront of shining a light on this behavior, and first explored the issues raised by government employees using private email for official business in a 2012 journal article: “Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?” In the six years since that article was published, CoA Institute’s investigations have demonstrated how the use of personal email or messaging apps for government business hinders transparency and accountability.

The ability to shroud government action in secrecy can also harm the economic rights of ordinary Americans. For example, small-scale family fishermen were harmed when the National Oceanic and Atmospheric Administration failed to search private accounts for email records related to onerous regulations that would devastate their business. Government overreach cannot be fought effectively if the process and enforcement are kept in the dark. That’s why CoA Institute is committed to holding the government accountable to transparency laws and has brought cases to uncover the private email use of officials such as former Secretary of State Colin Powell, former Secretary of State Hillary Clinton, and now, former FBI Director James Comey.

On June 14, 2018, after the Department of Justice (DOJ) Inspector General (IG) revealed “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business.” CoA Institute submitted FOIA requests to the Federal Bureau of Investigation (FBI) and the IG to obtain copies of that email correspondence. After the agencies failed to respond to the requests in a timely fashion, CoA Institute filed a lawsuit on August 1, 2018 to bring transparency to Comey’s use of Gmail, which the IG had concluded was “inconsistent with the DOJ Policy Statement.”

The FBI provided its first rolling production late last week. You can read and download the documents here.

The FBI reviewed 526 pages, released only 156 pages, and withheld 370 pages in full. Notably, the FBI withheld seven emails under the FOIA’s law enforcement exemption, which applies only where the government can show that (1) a law enforcement proceeding is pending or prospective, and (2) release of information about that proceeding could reasonably be expected to cause some articulable harm. These withholdings are particularly troubling given that Director Comey told the IG he only used personal email “to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.” And according to news reports, Comey “stressed that his personal email was never used for classified or sensitive work.”

The e-mails records released to CoA Institute show that Director Comey was aware that his use of personal email for government business would be seen as “embarrassing” to anyone who wasn’t aware of it previously.

The records also show that Director Comey used his Gmail to discuss the FBI’s investigation of Hillary Clinton’s email server. In other words, Comey was using a non-governmental email account while he was investigating Secretary Clinton for the same unlawful behavior.
In this case, as with nearly every instance, when public officials conduct business through unofficial channels, they are denying the public’s right to hold officials accountable through the most fundamentally sound principle of a healthy democracy: Transparency. Cause of Action Institute remains committed to holding government officials at all levels accountable and will continue to report on this case as the DOJ releases the more than 700 pages of Comey related emails that remain outstanding.

The full production can be found here.

Other CoA Institute investigations of the use of personal email or messaging accounts for government business:

Documents Obtained by Cause of Action Show that Officials Worried About Hillary’s Emails But Took No Action (June 4, 2015)

Off-Grid Government: This Administration’s Pattern of Using Personal Email Accounts (December 22, 2015)

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment (February 28, 2018)

CoA Institute Files Reply in Support of Motion to Order Enforcement Action in Colin Powell Email Case (May 4, 2018)

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

____________________________________________________________

Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

Filed Under: Media, Blog Tagged With: Department of Justice, Federal Bureau of Investigation, federal records act, Kevin Schmidt

Amicus Briefs

Cause of Action Institute frequently writes amicus curiae briefs to support other litigants and present important issues to the court. Please contact us at amicus@causeofaction.org if you’d like amicus support for your case.

Year	Case Name	Question Presented	Court	Issue Area	Attorneys
2019	Liu v. SEC	Whether the SEC may seek and obtain disgorgement from a court as 'equitable relief' for a securities law violation even though this Court has determined that such disgorgement is a penalty. Read More	U.S. Supreme Court	Separation of Powers	Cynthia Crawford Michael Pepson
2019	Seila Law LLC v. CFPB	Whether the CFPB's structure violates the separation of powers and whether Humprey's Executor should be narrowed.	U.S. Supreme Court	Separation of Powers
2019	Publishers Business Services and AMG Capital Management v. FTC	Whether Section 13(b) of the Federal Trade Commission Act authorizes the Federal Trade Commission to demand monetary relief such as restitution. Read More	U.S. Supreme Court	Economic Freedom	Cynthia Crawford Michael Pepson
2019	Maine Community Health Options v. United States	Whether Congress may defund the risk corridor program created by the Affordable Care Act Read More	U.S. Supreme Court	Economic Opportunity - Health Care	Eric Bolinder James Valvo
2019	Baldwin v. United States	Whether the U.S. Supreme Court should overturn its prior decision in Brand X, which grants deference to agency interpretations of statutes Read More	U.S. Supreme Court	Separation of Powers	John Vecchione Michael Pepson Cynthia Crawford
2019	Espinoza v. Montana Department of Revenue	Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?	U.S. Supreme Court	Educational Freedom	Cynthia Crawford
2019	Federal Trade Commission v. Qualcomm	Whether the FTC has abused its Section 13(b) authority and the proper construction of "proper case" Read More	Ninth Circuit	Economic Freedom	John Vecchione Michael Pepson Jessica Thompson
2019	CIC Services v. IRS	Whether the Anti-Injunction Act prevents subject-matter jurisdiction to review an IRS rulemaking.	Sixth Circuit	Regulatory Reform	John Vecchione Lee Steven James Valvo
2019	Competitive Enterprise Institute v. Michael Mann	Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern.	U.S. Supreme Court	First Amendment	John Vecchione Josh Schopf Ryan Mulvey
2019	Cochran v. SEC	Is Section 25 of the Securities and Exchange Act of 1934 a jurisdiction-stripping statute that prevents federal courts from reviewing challenges to agency action as a federal question under Section 1331?	Fifth Circuit	Separation of Powers	John Vecchione
2019	Arizona v. California	Do California's extraterritorial assessments and seizures violate the Due Process Clause, Commerce Clause, or Fourth Amendment? Read More	U.S. Supreme Court	Economic Freedom	Cynthia Crawford James Valvo
2019	Food Marketing Institute v. Argus Leader	What is the proper scope of the term "confidential" in Exemption 4 of the Freedom of Information Act? Read More	U.S. Supreme Court	Government Transparency	Ryan Mulvey James Valvo
2019	Federal Trade Commission v. AMG Capital Management	Whether the FTC exceeded the scope of its remedial authority under Section 13(b).	Ninth Circuit	Economic Freedom	John Vecchione Michael Pepson Jessica Thompson
2019	McDonough v. Smith, Merits Stage	Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant's favor or when the defendant becomes aware of the tainted evidence and its improper use.	U.S. Supreme Court	Criminal Justice Reform	John Vecchione John McGlothlin Michael Geske
2019	Kisor v. Wilkie	Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock, which direct courts to defer to an agency's reasonable interpretation of its own ambiguous regulation.	U.S. Supreme Court	Separation of Powers	John Vecchione
2018	McDonough v. Smith, Cert Stage	Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant's favor or when the defendant becomes aware of the tainted evidence and its improper use.	U.S. Supreme Court	Criminal Justice Reform	John Vecchione John McGlothlin Michael Geske
2018	Institute for Justice v. Reilly	Whether the Georgia General Assembly is covered by the state's Open Records Act. Read More	Georgia Supreme Court	Government Transparency	James Valvo Ryan Mulvey
2018	Timbs v. Indiana	Whether the Excessive Fines Clause of the Eighth Amendment is enforceable against the States. Read More	U.S. Supreme Court	Criminal Justice Reform	John Vecchione Julie Smith Cynthia Crawford
2018	FCA US LLC v. Flynn	Whether litigation based on speculative harm will undermine cybersecurity in IOT and stifle innovation.	U.S. Supreme Court	Regulatory Reform	John Vecchione
2018	Allah v. Milling	Whether qualified immunity denies justice to victims of unconstitutional misconduct. Read More	U.S. Supreme Court	Criminal Justice Reform	John Vecchione Erica Marshall
2018	California Sea Urchin Commission v. Combs	Whether agencies are delegated authority by statutory silence such that actions without congressional authorization receive Chevron deference.	U.S. Supreme Court	Separation of Powers	John Vecchione
2018	Gundy v. United States	Whether granting the attorney general unbounded discretion to define federal criminal liability violates the nondelegation doctrine.	U.S. Supreme Court	Criminal Justice Reform
2018	Weyerhaeuser Co. v. U.S. Fish and Wildlife Service	Whether an agency decision not to exclude an area from critical habitat designation because of the economic impact of designation is subject to judicial review. Read More	U.S. Supreme Court	Economic Freedom	John Vecchione Kara McKenna Cynthia Crawford
2018	CIC Services v. IRS	Whether the Anti-Injunction Act prevents subject-matter jurisdiction to review an IRS rulemaking. Read More	Sixth Circuit	Regulatory Reform	John Vecchione James Valvo
2018	CTIA - The Wireless Ass'n v. City of Berkeley	What level of scrutiny does the First Amendment require when governments impose "disclosure" regimes that force sellers to speak and disparage their own products or take sides in a public policy debate? Read More	U.S. Supreme Court	First Amendment	John Vecchione James Valvo
2017	United States v. Kolsuz	Whether the U.S. applied the Fourth Amendment exception in situations that do not justify the implication of the exception Read More	Fourth Circuit	Criminal Justice Reform	Erica Marshall
2017	Marinello v. United States	Does a conviction under 26 U.S.C. § 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the tax laws require that the government prove the defendant acted with knowledge of a pending IRS action? Read More	U.S. Supreme Court	Criminal Justice Reform	John Vecchione Erica Marshall
2017	Federal Trade Commission v. AT&T Mobility LLC	Can the FTC ignore express statutory limits on its authority and the plain language of its organic statute to advance what it perceives to be sound public policy?	Ninth Circuit	Economic Freedom	Patrick Massari Michael Pepson Cynthia Crawford
2017	Cigar Ass'n of America v. Food and Drug Administration	Whether the FDA ignored Congress's mandate to analyze Warning-Label efficacy for the premium cigar industry. Read More	District Court for D.C.	Economic Freedom	Patrick Massari Eric Bolinder
2017	Murray Energy Corp. v. EPA	Does Section 321(a) of the Clean Air Act establish mandatory, non-discretionary duties for the Environmental Protection Agency? Read More	U.S. Supreme Court	Regulatory Reform	Eric Bolinder Joshua Schopf John Vecchione
2017	Daugherty v. Sheer	Whether federal officials knowingly violated LabMD's First Amendment rights by making a deliberate, calculated decision to punish the company for speaking about FTC's abuse of authority.	D.C. Circuit	First Amendment	Patrick Massari Michael Pepson
2017	Cigar Ass'n of American v. Food and Drug Administration	Whether the FDA ignored Congress's mandate to analyze Warning-Label efficacy for the premium cigar industry.	District Court for D.C.	Economic Freedom	Eric Bolinder Patrick Massari
2017	DeCoster v. United States	Whether the Court should reconsider U.S. v. Park, where it held that under the Food, Drug, and Cosmetic Act (FDCA) criminal "liability of managerial officers [does] not depend on their knowledge of . . . the act made criminal by the [FDCA], but instead on an officer's position in the corporation." Read More	U.S. Supreme Court	Criminal Justice Reform	Erica Marshall
2017	Competitive Enterprise Institute v. Michael Mann	Whether First Amendment rights are violated when scientists use the court system to silence people who are critical of their work. Read More	D.C. Court of Appeals	First Amendment	John Vecchione James Valvo
2017	Gloucester County v. G.G.	Whether courts should extend Auer deference to an unpublished agency letter that does not carry the force of law. Read More	U.S. Supreme Court	Separation of Powers
2017	LabMD, Inc. v. Federal Trade Commission	Whether the FTC lacks Section 5 "unfairness" authority to regulate medical data-security because it is already comprehensively regulated by HHS under HIPAA.	Eleventh Circuit	Economic Freedom	Patrick Massari Michael Pepson
2017	Turner v. United States	Whether the petitioners' convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1963).	U.S. Supreme Court	Criminal Justice Reform
2016	United States v. Weed	Whether the SEC's formal adjudication of Section 3(a)(9) was entitled to Chevron deference under the rule of lenity when the statute has both civil and criminal applications. Read More	First Circuit	Separation of Powers	Patrick Massari Erica Marshall
2016	Florida Bankers Ass'n v. Department of the Treasury	Whether the Anti-Injunction Act prevents subject-matter jurisdiction to review an IRS rulemaking. Read More	U.S. Supreme Court	Regulatory Reform	Alfred Lechner Lee Steven James Valvo
2015	Justice v. Hosemann	Whether the First Amendment prevents Mississippi from prohibiting spending of more than $200 on pure speech about a ballot measure without creating a political committee.	U.S. Supreme Court	First Amendment	Alfred Lechner Lee Steven Joshua Schopf
2015	United States v. Sierra Pacific Industries, Inc.	Whether the protections of Brady v. Maryland apply in civil proceedings. Read More	Ninth Circuit	Criminal Justice Reform	Daniel Epstein Stephen Schwartz
2015	Van Hollen v. Federal Election Commission	Whether the Federal Election Commission struck a proper balance between campaign transparency and citizen privacy and the court below should have accordingly deferred? Read More	D.C. Circuit	First Amendment	Daniel Epstein Lee Steven Joshua Schopf
2015	O'Keefe v. Chisholm	Whether, as this Court left unresolved in Hartman v. Moore, officials may be held liable for subjecting citizens to investigation in retaliation for First Amendment-protected speech and association.	U.S. Supreme Court	First Amendment	Reed Rubinstein Daniel Epstein Prashant Khetan James Valvo
2014	Community Financial Services Ass'n of America v. Federal Deposit Insurance Corp.	Whether the FDIC's application of Choke Point offends basic federalism principles and raises prudential questions regarding the efficacy and efficiency of agency enforcement and policy decision-making.	District Court for D.C.	Economic Freedom	Daniel Epstein Prashant Khetan
2014	Yates v. United States	Whether a fish is a "tangible object" under the Sarbanes-Oxley Act's "anti-shredding" provision. Read More	U.S. Supreme Court	Criminal Justice Reform	Daniel Epstein Prashant Khetan
2013	McCutcheon v. Federal Election Commission	Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a) (3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest. Read More	U.S. Supreme Court	First Amendment	Daniel Epstein Hallee Morgan Justin Meyers Marie Connelly Robyn Burrows Karen Groen
2012	Ralls Corp. v. Obama	Whether the Executive Branch may take unauthorized actions that arbitrarily deprive individuals and businesses of their property at any time without due process and judicial review. Read More	District Court for D.C.	Economic Freedom	Amber Abbasi

CoA Institute Files Brief in Support of Effort to Make Georgia Legislature Comply with Open Records Act

October 23, 2018 by Staff

Files 50-state survey with Georgia Appeals Court

Cause of Action Institute (CoA Institute) filed an amicus brief today in support of a lawsuit requiring Georgia’s legislature to comply with the state’s open records act. The brief includes a 50-state survey on whether other state legislatures are subject to open records laws. The results of the survey show that 38 states provide the public with access to legislative records, while only a small minority, 11 states, exclude their legislatures from public-disclosure laws. Of those that exclude their legislature, eight states do so in express statutory terms.

The brief is in support of a lawsuit brought by the Institute for Justice (IJ) after they sent a series of public records requests to offices of the Georgia legislature seeking access to information about the state’s licensure requirement for music therapists. Yes, you read that correctly, licensure requirements for music therapists. The legislature claimed it was categorically exempt from Georgia’s open records law, and the superior court agreed. The case is now before the Georgia Court of Appeals.

CoA Institute’s survey reveals three important trends that should inform the Court’s decision:

When a state’s open records law does not cover the legislature, it’s usually explicitly statutorily exempt. Georgia law does not explicitly exempt the legislature;

In the absence of an express exclusion, broad terms are commonly interpreted to include the legislature, either in whole or in part; and

When there is any remaining ambiguity, the presence of statutory exemptions concerning specific legislative offices or records implies that the legislature must be covered; Georgia has these exemptions.

When IJ filed its requests, and the court below issued its order, the Georgia Open Records Act included two exemptions for legislative records. The first of these provisions exempted records from a series of legislative offices: the Legislative and Congressional Reapportionment Office, the Senate Research Office, and the House Budget and Research Office. The second provision, which is still in force, exempts certain records from the Office of Legislative Counsel. These offices are all contained within the legislative branch. Neither exemption would make any sense if the General Assembly were not, by default, covered by the Open Records Act.

To accept Georgia’s position, as adopted by the court, would render the Act’s explicit, narrow exemptions mere surplusage, violating a core canon of statutory construction. Therefore, the Court of Appeals should recognize that the presence of the exemptions for certain legislative offices as means that the broader legislature must be covered. This interpretation would conform Georgia’s approach to the broad trends that Cause of Action Institute identified in the 50-state survey.

The full amicus brief is available here.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

Filed Under: Media, Blog Tagged With: James Valvo, Amicus Brief, FOIA, Transparency, Ryan Mulvey, Institute for Justice, Georgia

Cause of Action Institute Files Lawsuit Against Commerce Department for Failing to Release Tariff Exemption Material & Information

October 18, 2018 by Staff

Washington, D.C. (Oct. 18, 2018) – Cause of Action Institute (CoA Institute), a government watchdog organization, today filed a lawsuit against the U.S. Department of Commerce for failing to turn over public documents related to trade tariffs and tariff exemptions. CoA Institute first launched the investigation into the tariff exemption process after it was reported that some of the largest steel and aluminum manufacturers in the country had successfully blocked every tariff exemption filed by smaller U.S manufacturing companies.

John Vecchione, president and CEO of CoA Institute, issued the following statement:

“Tariffs manipulate the free market by creating government-controlled barriers that harm hardworking Americans and putting the economic health of our country at risk. We now have a system where the Executive Branch has the power to pick winners and losers. Our investigation seeks to uncover the process by which tariff exemptions are approved and denied, ensure the tariff-exemption exclusion process is free of political and corporate influence, and seek to uncover any communication between government officials and the companies successfully blocking tariff exemptions.”

Background and timeline:

In March 2018, President Trump imposed a 10-percent tariff on aluminum and a 25-percent tariff on steel imports
Trade laws allow exemptions from tariffs in the interest of national security and a recognition that some products are not readily available from U.S manufacturers
The Commerce Department allows any company (namely, U.S. steel and aluminum companies) to file an objection to a tariff-exemption request
The New York Times reported that every objection filed by three of the nation’s largest steel producers was successful in blocking the exemption request
In August 2018, CoA Institute began investigating the exemption process, filing three FOIA requests (see below)
By law, the government must respond to all FOIA requests within 20 business days
To date, the Commerce Department has failed to respond to any of the FOIA requests relating to the tariff exemption process

Attachments:

Complaint – Cause of Action Institute v. U.S. Department of Commerce, No. 18-2397. Tariff Exemptions
FOIA #1 – Request for work calendars of staff and leadership at the U.S. Department of Commerce that may create or influence tariff and tariff exemption policy
FOIA #2 – Employee records relating to tariff exemption process, guidance and employees involved in the decision-making process
FOIA #3 – Any and all communication between staff and leadership at the U.S. Department of Commerce and companies benefiting from tariffs and those filing tariff exemptions

Cause of Action Institute Lawsuit Seeks to Overturn DOJ’s restrictive FOIA guidance

October 15, 2018 by Staff

CoA seeks to correct the definition of a “record” to prevent federal agencies from unnecessarily redacting public information

Washington, D.C. (Oct. 15, 2018) – Cause of Action Institute (CoA Institute), a government watchdog organization, today filed a lawsuit against the U.S. Department of Justice (DOJ), challenging the Department’s definition of a “record” under the Freedom of Information Act (FOIA). DOJ’s guidance document classifies “records” only as the material requested in a FOIA request. This allows agencies to break a single record into multiple smaller records, redacting information that would otherwise be public and not meet allowable exemptions under the FOIA statute (e.g. releasing a single paragraph while redacting the rest of an email as a “nonresponsive record”). DOJ’s policy unnecessarily restricts public information that should not be redacted.

James Valvo, counsel and senior policy advisor at CoA Institute, issued the following statement:

“DOJ’s FOIA policy and misreading of the definition of a record under FOIA actively seeks to restrict access to public information beyond the scope of federal law. This is poor public policy, and an attempt to undermine laws that require the government remain transparent and accountable.”

Background:

The U.S. Department of Justice FOIA guidance document allows the agency, and others that rely on its guidance, to segment unified records into multiple smaller records to avoid disclosure.
This case seeks to establish, for the first time, a binding definition of a “record” under the FOIA.
Courts have held numerous times that FOIA contains only nine exemptions and agencies may not use “nonresponsive” as a tenth. (for example, personal identifying information, records that pertain to national security, etc.)
For more background on the legal issue, click here.

Attachments:

Complaint: CoA Institute v. Department of Justice

About Cause of Action Institute

Media Contact:
Matt Frendewey
matt.frendewey@causeofaction.org
202-699-2018

Taking too long?

Reload document

Open in new tab

Download [164.17 KB]

Filed Under: Media, Press Release Tagged With: Department of Justice, FOIA, James Valvo

Cause of Action Institute Clips – 10/1/2018

October 1, 2018 by Staff

Good morning,

Welcome to Cause of Action Institute’s morning clips and updates – you can also read and share the clips by clicking here. The U.S. Supreme Court kicks off its October 2018 term today. I’ve included a quick summary on two cases before the Court this week that Cause of Action Institute is following closely.

Have a great Monday and enjoy!

_____________________________

Matt Frendewey
Cause of Action Institute
O (202) 499-4231

Weyerhaeuser Company v. U.S. Fish and Wildlife Service

Today, the Court will hear oral arguments in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. This case involves the federal government designating 1,500 acres of private land as “critical habitat” for the endangered dusky gopher frog. The question that we discuss in our amicus brief is whether the agency’s refusal to consider the economic impact of its decision is subject to judicial review. We argue that the court of appeals below ignored the strong presumption of judicial review and the Supreme Court should reverse.
You can read more about the case in our Aug. 22 blog, as well as our amicus curiae brief.

Gundy v. United States

Another case we’re following closely is Gundy v. United States. This case is scheduled to be heard tomorrow and raises a question of whether the Executive Branch can exercise legislative authority by defining the scope of federal criminal liability even though neither the Constitution nor Congress has given the Executive Branch the power. We joined the Cato Institute and filed an amicus brief arguing that the founders specifically intended for the powers of making laws and enforcing laws to be separated, quoting John Adams, “[t]he executive shall never exercise the legislative and judicial powers . . . to the end it may be a government of laws and not of men.” This is especially true in the area of criminal laws, where we must ensure that Congress and not the Executive determines liability.
You can read the full amicus curiae brie here.

npr – Supreme Court Term Begins In The Shadow Of Kavanaugh Confirmation Battle – By Bobby Allyn

As the Senate remains in a pitched battle over the nomination of Brett Kavanaugh, the Supreme Court on Monday will begin its new term with far less fanfare. … The very first case the Court will take up concerns a frog species that is threatened with extinction: the dusky gopher frog. Weyerhaeuser., a large timber company, is challenging the federal government’s classification of Louisiana timberland as a “critical habitat” for the dusky gophers. There are only 75 dusky gopher frogs left in the wild and they are protected by the Endangered Species Act.

New York Times – A Quiet Docket May Be Just the Right Medicine for the Supreme Court – By Adam Liptak

In the shadow of a titanic confirmation fight, the Supreme Court will return to the bench on Monday with a docket that offers an opportunity to lower the temperature.

The Hill — Tariff-exemption process raises serious cronyism concerns – By John Vecchione

The tit-for-tat trade war involving tariffs continues to grow between the U.S. and other countries, and as night follows day, where there are tariffs, there is the corrupt prize of tariff exemptions. A new, domestic trade war has emerged within the Commerce Department in an effort to secure and block tariff exemptions.

Politico –Liberals Don’t Know Much About Conservative History – By GEOFFREY KABASERVICE

The growing tendency of late for liberals and conservatives to regard each other as not just opponents, but enemies, has been one of the most alarming in an alarming era. At the root of this fear and loathing is mutual incomprehension: Liberals simply don’t understand conservatives, and vice versa. In years past, the historical profession has done little to improve matters. Liberal historians typically treated conservatives and their ideas with disdain, when they deigned to notice them at all.

arstechnica – FBI: We can’t listen to Facebook Messenger voice calls. Judge: Tough luck – By Cyrus Farivar

A federal judge in Fresno, California recently denied prosecutors’ request to force Facebook to wiretap voice calls by suspected gang members conducted over Messenger. According to a Friday report by Reuters, despite already having substantive traditional wiretaps and intercepting Messenger texts between alleged MS-13 gangsters, the government wanted further access. “Currently, there is no practical method available by which law enforcement can monitor these calls,” FBI Special Agent Ryan Yetter wrote in a nearly-100-page-long affidavit submitted to the court on August 30, 2018. The three participants in those calls are now in jail, according to Reuters.

ftc.gov – Student Debt Relief Operators Agree to Settle FTC Charges

The operators of a student loan debt relief scam have agreed to settle Federal Trade Commission charges that they bilked millions from consumers by falsely claiming to enroll consumers in loan forgiveness programs, for which they charged up to $1,000 in illegal upfront fees. The five settlements are part of a coordinated federal-state law enforcement initiative targeting deceptive student loan debt relief scams announced by the FTC in October 2017, called Operation Game of Loans. The settlements are with the following individual defendants and their associated companies:

Politico – U.S. reaches trade deal with Canada and Mexico, providing Trump a crucial win – By ADAM BEHSUDI, ALEXANDER PANETTA and DOUG PALMER

Trade ministers from the U.S., Mexico and Canada have reached a deal to revamp the North American Free Trade Agreement, the Trump administration announced late Sunday night. The new pact, which is being called the U.S.-Mexico-Canada Agreement, is a major step toward completing one of Trump’s signature campaign promises and gives the president a concrete policy win to tout on the campaign trail this fall. It also sets the stage for what is sure to be a high-stakes fight to get the agreement passed by Congress before it can become law.

thehill – Supreme Court starts new term shorthanded – BY LYDIA WHEELER

The Supreme Court starts its new term on Monday and it will be short-handed on the bench — one of several challenges the justices are facing along with cases dealing with limits on the death penalty, the separation of church and state and employment discrimination. Sexual assault allegations against Brett Kavanaugh, President Trump’s nominee to succeed former Justice Anthony Kennedy, have already delayed his Senate confirmation and could ultimately sink his nomination. But with or without him the court will be back in session.

foxnews – California’s Jerry Brown signs tough net-neutrality bill, prompting Justice Department lawsuit

California Gov. Jerry Brown signed the nation’s toughest net neutrality measure Sunday, requiring internet providers to maintain a level playing field online. The move prompted an immediate lawsuit by the Trump administration. Advocates of net neutrality hope the new law in the home of the global technology industry will have national implications by pushing Congress to enact national net neutrality rules or encouraging other states to follow suit.

Filed Under: Media, Blog

Federal judge rejects DOJ’s use of attorney-client, deliberative process privileges to hide communications with the White House Counsel from public disclosure

September 14, 2018 by Staff

Judge James Boasberg of the U.S. District Court for the District of Columbia yesterday granted in part Cause of Action Institute’s (“CoA Institute’s) motion for summary judgment in a Freedom of Information Act (“FOIA”) lawsuit against the Department of Justice (“DOJ”). Judge Boasberg vigorously rejected DOJ’s attempt to withhold records of communications with the White House under the attorney-client and deliberative process privileges. CoA Institute filed its lawsuit in July 2017, after DOJ refused to produce records that would have revealed whether it was involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services. The underlying request at issue, which CoA Institute submitted in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, had directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with his Committee as “congressional records” not subject to the FOIA.

Judge Boasberg’s most damning holding concerned DOJ’s misuse of Exemption 5 to redact a line from a White House email and to withhold in full an attachment—presumably the letter from Chairman Hensarling—received by several Executive Branch agencies. As the Court explained:

Indeed, any reasonable individual would reach the same conclusion as the Court after cursorily examining the record at issue.

The sole basis of DOJ’s defense was the declaration a senior agency attorney, who claimed that the White House email reflected a “routine” sort of “consultative exchange” in which Office of Information Policy Director Melanie Pustay was asked for “advice.” But the Court saw through this self-serving statement and explained that DOJ had failed to meet its burden in proving that the specific record at issue reflected the provision of legal services. To rule otherwise would tend to turn any correspondence with a government attorney into privileged material.

The Court also failed to see how the withheld material contained any confidential information. For example, the attachment to the White House email—ostensibly, a copy of the Hensarling letter—was merely one of many substantively identical letters that DOJ admitted were received across the Administration. There was simply no agency-specific confidential information at issue.

Judge Boasberg further rejected DOJ’s use of the deliberative process to withhold the same White House communications. Despite the government’s arguments during briefing, after reviewing the records itself, the Court determined that they contained nothing that could be construed as deliberative.

Although the court granted in part CoA Institute’s motion, it also sided with the government over the withholding of eleven pages of records exchanged between DOJ and an unidentified agency. After reviewing those records, the Court determined that they did, in fact, reflect the agency’s decision-making processes and revealed the solicitation and provision of confidential legal advice. Moreover, there were no reasonably segregable portions of the records that could be released to CoA Institute. Finally, the court did not resolve the parties’ dispute over the “foreseeable harm” standard that Congress introduced in the FOIA Improvement Act of 2016..

* * *

The Court has ordered DOJ to release unredacted versions of the White House communications. Once these records have been released, we will provide another update addressing their contents.

Judge Boasberg’s opinion is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

Taking too long?

Reload document

Open in new tab

Download [526.27 KB]

Filed Under: Blog, Media Tagged With: Department of Justice, FOIA, White House, Jeb Hensarling, Office of Information Policy, OIP

Search Results for: IRS

FBI Records Show Former FBI Director James Comey’s Use of Personal Email

Amicus Briefs

CoA Institute Files Brief in Support of Effort to Make Georgia Legislature Comply with Open Records Act

Cause of Action Institute Files Lawsuit Against Commerce Department for Failing to Release Tariff Exemption Material & Information

Cause of Action Institute Lawsuit Seeks to Overturn DOJ’s restrictive FOIA guidance

Cause of Action Institute Clips – 10/1/2018

Federal judge rejects DOJ’s use of attorney-client, deliberative process privileges to hide communications with the White House Counsel from public disclosure

Media Contact

Recent News

Fishermen Land Major Supreme Court Victory Overruling Chevron Doctrine

Strong Amicus Support in Fishermen Case Challenging Chevron Deference

Fishermen File Supreme Court Opening Brief Challenging Chevron Deference

Search Results for: IRS

Media Contact

Follow Us

Recent News