Troops and rights groups who are suing President Trump and the Pentagon over proposed restrictions on transgender military service may be closer to forcing the White House to turn over internal correspondence over how the policy was developed.
Two federal courts have now ruled that the administration must comply with requests from the plaintiffs to see internal communications as Trump announced the ban on Twitter last summer and later issued memos on the policy.
Plaintiffs argue the emails and other documents can show whether Trump consulted with generals and military experts, as he claimed he did, or whether made the decision to discriminate against transgender troops on his own. The Department of Justice and subpoenaed conservative groups such as the Family Research Council and Liberty Council argue the communications are protected and the effort to obtain the communications is meant to intimidate.
The latest ruling came down this week from a federal magistrate judge hearing a civil case filed by the American Civil Liberties Union in Baltimore, one of four federal suits filed against the administration last summer after it reversed the Obama administration policy of open transgender service.
“The court agrees with plaintiffs that each of the categories of compelled documents is likely to contain evidence reflecting defendants’ intent,” U.S. Magistrate Judge A. David Copperthite wrote in the order. “It also could not be more clear that the defendants’ intent — whether it was for military purposes or whether it was for purely political and discriminatory purposes — is at the heart of this litigation.”
The judge’s order affects “deliberative materials” regarding Trump’s July 2017 tweets, Mattis’ subsequent panel of experts that wrote the Pentagon’s proposed policy, and the president’s final memo this year accepting Mattis’ plan.
In March, the Pentagon released a detailed new policy that could bar many transgender troops from serving in the military. But it has been put on hold by four federal courts as they hear the civil suits filed by active-duty transgender troops, prospective recruits, and transgender rights groups.
A Seattle judge handed down a similar ruling and has been challenged by the DOJ, which is also likely to file a challenge to the most recent order in Maryland.
Plaintiffs in the transgender lawsuits have also been subpoenaing conservative and religious groups that have opposed transgender integration, as part of the effort to get documents showing White House deliberations on the new policy.
The subpoenas are still being litigated and the groups have pushed back in court.
The Liberty Council, a nonprofit group dedicated to religious rights, received a subpoena in the Seattle suit and in a D.C. lawsuit filed on behalf of pastor Ronnie Floyd and Tony Perkins, the president of the Family Research Council, who both sat on Trump’s Evangelical Executive Advisory Board.
“There ought to be some ability of the executive branch to deliberate an issue without fear that their internal conversations are going to be exposed,” said Jonathan Alexandre, director for public policy for Liberty Counsel. “If there was such a spectre that every conversation that you had behind closed doors was going to be revealed you can certainly see how the executive branch would be handcuffed to do any work if they can’t wrestle through issues.”
Alexandre said the transgender troops and rights groups who filed the subpoenas are on a “witch hunt” to silence conservative religious opinion.
“Asking for every document or thought or interaction that we’ve had with the Department of Defense or executive branch is not only overburdensome but it’s just an attempt to limit our right to petition the government and address our grievances,” he said.
The Center for Military Readiness, a staunch opponent of transgender military service, received a subpoena in the Seattle lawsuit by troops, rights groups, and the state of Washington. The center has filed a challenge in a Michigan court and is fighting an order to turn over any documents related to the transgender policy from June 2015 until the present, according to Elaine Donnelly, the founder and president.
“Plaintiffs in the various lawsuits have the right to disagree with our stated principles, but that does not give them the right to mischaracterize our motives before a federal court — or to rummage through our private emails,” Donnelly said.
