In a five-page filing before U.S. District Judge Marsha Pechman in Washington State, the U.S. Justice Department asserts executive privilege in keeping that information confidential — even though Pechman had determined that information isn’t subject to that protection — and insists information already given to the court is sufficient.
“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 says. “In addition, defendants do not waive any executive privileges simply by arguing for judicial deference to the President’s military decisions.”
The filing is signed by Acting Assistant Attorney General for the Civil Division Chad Readler, Deputy Assistant Attorney General Brett Shumate and other Justice Department officials.
Earlier in the day, Pechman ordered the Justice Department to turn over the names of military experts Trump says he consulted before announcing on Twitter in July he’d ban transgender people from the military “in any capacity.” The deadline for the Justice Department to turn over the information was 8 pm EST on Thursday.
Information on whom Trump consulted before announcing his transgender military ban in July could be damaging to the administration because the general perception is he sought advice from neither Defense Secretary James Mattis, Chair of the Joint Chiefs of Staff Gen. Joseph Dunford, nor other senior defense officials. That likely means Trump devised the policy on his own and supplanted the judgement of military advisers.
If, on other hand, military experts were in fact identified, such as former White House strategist Steve Bannon and Trump adviser Stephen Miller, that would also embarrass those individuals because the transgender ban is seen as unwarranted and discriminatory.
Pechman issued the order in the lawsuit against the transgender military ban known as Karnoski v. Trump, which was filed by the LGBT military group OutServe-SLDN and Lambda Legal. The Human Rights Campaign and transgender individuals are among the plaintiffs in the lawsuit.
Tara Borelli, counsel for Lambda Legal’s Southern Regional Office, said the Justice Department 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 said. “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.”
Asked what action Bechman should take in the aftermath of the filing, Borelli said the court “should preclude the government from relying upon any information about the process that led to the ban.
“DOJ clearly understands that this is a steep price it must pay for its approach, and it provides yet one more reason for the court to permanently enjoin the ban,” Borelli said.
Matt Thorn, executive director of OutServe-SLDN, said the filing is “merely the latest indication of the Trump-Pence administration’s persistent efforts to undermine qualified and patriotic Americans that aspire to serve this country.”
“The stance Trump is advancing on open transgender military service is offensive, distasteful, and tenuous,” Thorn added. “Our service members, no matter their sexual orientation or gender identity, deserve a commander-in-chief that will advocate for equity and justice on their behalf – this Administration is failing in that respect. We look forward to seeing the day when all qualified individuals are able to serve this country with honor and dignity, as their true and authentic selves.”
The Justice Department makes the filing one day before the White House is expected to announce new guidance on the transgender military ban after receiving a recommendation from Mattis on the issue. It’s unclear whether the White House will keep to that timeframe.