The Department of Justice is refusing to cooperate with a federal judge’s order for the Trump administration to turn over the names of experts President Donald Trump claims to have consulted with before deciding to ban transgender soldiers from the military.
The DOJ asserted executive privilege in a five-page filing before U.S. District Judge Marsha Pechman on Thursday, defying the judge’s order that it lacked standing to make such an assertion, because “the court cannot rule on a ‘potential’ privilege, particularly where the allegedly privileged information is unidentified.”
“While defendants need not disclose the substance of any communications or documents upon which they intend to rely, their initial disclosures, amended initial disclosures, and second amended initial disclosures are clearly inadequate,” Pechman wrote in a three-page order. “Under Federal Rule of Civil Procedure 26(a)(1), initial disclosures must identify ‘each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses’ as well as ‘all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.’”
“Defendants respectfully disagree and adhere to their position that judicial deference to executive decisions about the composition of the military is not dependent upon judicial review of the deliberative process that preceded the decisions at issue,” the filing reads, signed by Acting Assistant Attorney General for the Civil Division Chad Readler, Deputy Assistant Attorney General Brett Shumate, among other Justice Department officials. “In addition, defendants do not waive any executive privileges simply by arguing for judicial deference to the President’s military decisions.”
Trump claimed to have consulted “with my Generals and military experts” during the Twitter thread he used to launch his ban, back in July.
The administration’s attempts to block transgender people from serving have been thwarted by four different judges, and on January 1 it was forced to allow openly trans soldiers to enlist.
Reports have suggested Trump did not consult Defense Secretary James Mattis, who was on vacation at the time of the Tweet storm, nor other senior officials.
Chair of the Joint Chiefs of Staff Gen. Joseph Dunford was revealed in a report by BuzzFeed News to have called the move “unexpected” and he stated his intention to tell Congress he was “not consulted.”
Dunford told members of the Senate Armed Services Committee during his reappointment hearing, on September 26, it was his belief “that any individual who meets the physical and mental standards…should be afforded the opportunity to continue to serve.”
A number of military leaders have publicly criticized the ban, including Admiral Paul Zukunft, the Commandant of the United States Coast Guard, Navy Secretary Richard V. Spencer, and Former Army secretary Eric Fanning.
Tara Borelli, counsel for Lambda Legal’s Southern Regional Office, said the Justice Department’s refusal to turn over the names of those supposedly consulted is “yet more proof that when it comes to justifying this ban, the government doesn’t have the goods.”
“The government has said that it simply will not provide information about the process that led to the president’s twitter ban,” Borelli told the Washington Blade. “As the government well understands, this means that it will not be able to rely on that information to help defend the ban, which exposes a fatal flaw in their position: There is no justification for this discrimination. The government isn’t willing to pull back the curtain, because there’s nothing behind it.”
Meanwhile, the Trump administration is expected to announce new guidance on its trans military ban today, after receiving a recommendation from Mattis late last month. That guidance was received a couple days after the deadline, so it’s possible this day will also pass without the new policy coming to light.