Attorneys on both sides of a case concerning sensitive documents related to President Trump’s decision to terminate a program for undocumented youth are working to strike a deal before Wednesday to avoid a potential Supreme Court fight, according to a source with knowledge of the deliberations.
Justice Department lawyers said the agency would appeal to the nation’s highest court last Friday, after a three-judge panel of the Ninth Circuit Court rejected the Trump administration’s request to stop a federal judge from forcing the release of internal emails, memos, and other documents in which administration officials and White House aides weighed whether to terminate the Obama-era Deferred Action for Childhood Arrivals program.
U.S. District Court Judge William Alsup requested that all records pertaining to the decision to end DACA be disclosed last month, with the exception of some that are protected by executive privilege. The documents were requested as discovery in five legal challenges against the administration’s cancellation of the protections for young illegal immigrants.
Trump announced his decision to cancel the program in mid-September, giving Congress a six-month period to devise a legislative fix before the protections expire on March 5, 2018. The lawsuits over DACA were filed under the Administrative Procedure Act, requiring that the parties challenging the administration receive records of everything involved in the decision.
“What usually is a part of it is public comments related to the issue and new guidance, but never internal deliberations or memos,” Leon Fresco, the former director of the Justice Department’s Office of Immigration Litigation under President Obama, told the Washington Examiner. “That’s why the administration is fighting the way it is.”
Fresco said Alsup’s request would likely include “every email [White House chief of staff] John Kelly or [Trump adviser] Stephen Miller sent,” which he described as “unusual.”
“There was no such administrative record request when DACA was announced under the Obama administration. There wasn’t a CD that contained emails from [former Homeland Security Secretary] Janet Napolitano or [former Attorney General] Eric Holder. What there was, was a memo explaining this is what DACA is,” he said.
The Justice Department challenged Alsup’s initial ruling on Oct. 20, claiming the San Francisco-based judge had greenlighted “an improper hunt,” for records that are typically kept sealed, by those who had taken legal action against the administration.
“Their position is that any time the government makes a legal decision, everyone who advised the secretary has to submit all of the material they had that’s relevant, both in the agency and even in the White House,” Hashim Mooppan, an attorney for the agency, told the Ninth Circuit earlier this month.
Both Mooppan and Fresco said that setting such a precedent would create an environment in which administration officials might feel uncomfortable speaking openly about specific policies and political decisions.
“The Ninth Circuit wants [the Justice Department] to get all their information on DACA in one place and then let the judge decide what can be and can’t be seen. But suppose internal emails and memos are released, that will have a chilling effect on this administration and all administrations going forward in terms of staffers feeling they can’t offer candid advice,” Fresco told the Examiner.
One Ninth Circuit judge expressed similar concerns about ordering administration officials to turn over “deliberative process materials” detailing their conversations about how to handle the immigration program, which currently shields nearly 800,000 illegal immigrants from deportation.
“The order sweeps far beyond materials related to the sole reason given for rescinding DACA — its supposed unlawfulness and vulnerability to legal challenge,” Judge Paul Watford wrote in a dissenting opinion on the matter. “Even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be part of the administrative record absent a showing of bad faith or improper behavior.”
California Attorney General Xavier Becerra, who filed one of the lawsuits related to DACA, has described the legal battle for additional records as necessary in order to hold the administration accountable for its decision to terminate a program that impacts hundreds of thousands of undocumented youth.
A Justice Department spokesperson declined to offer details of what a deal on the administration records request would look like.