In a move that could shed light on the motivation behind President Trump’s transgender military ban and embarrass his presidency, a federal judge on Thursday ordered the U.S. government to turn over — by a deadline of 8 p.m. EST on Thursday — the names of military experts that were consulted before he announced the policy on Twitter.
In a three-page order, U.S. District Judge Marsha Pechman in Washington State responds to a request for clarification from the U.S. Justice Department on whether that information must be turned over as part of ongoing litigation. The administration argued that information should be subject to executive privilege.
But Pechman declines to find that information should be protected 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 writes. “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.'”
As a result of the order, Pechman orders the administration to comply with an earlier order seeking the information “no later than 5:00 PM Pacific Daylight Time on March 22, 2018.” It’s unclear at the time of this posting whether the information sought will become public after the administration discloses it, or remain kept under wraps by the court.
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, 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 are 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.
The Defense Department referred to the Justice Department in response to comment on whether the administration would comply with the order or appeal it. The Justice Department declined to comment. The White House didn’t immediately respond to a request to comment.
In July, Trump tweeted transgender people won’t be allowed to serve in the U.S. military “in any capacity,” saying he reached the decision after “consultation with my Generals and military experts.” The White House subsequently issued a directive implementing the ban in August.
A Buzzfeed report last month on an email exchange immediately after Trump tweeted out his announcement revealed Chair of the Joint Chiefs of Staff Gen. Joseph Dunford called the move “unexpected” and intended to tell Congress he was “not consulted.”
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.
The litigation has already enjoyed success. Pechman is one of four judges who issued a preliminary injunction enjoining the U.S. government from enforcing Trump’s transgender military ban.
Matthew Thorn, executive director of OutServe-SLDN, said his organization “strongly agrees” with the order requiring the administration to turn over names of experts Trump consulted on the military ban.
“From Secretary Mattis, who was on vacation at the time, to Chairman Dunford, both of whom have stated that they were not consulted, it is important for the public to know and understand who the president is actually getting military policy from, because it is certainly not any of the individuals who should be advising the White House on DOD policy and personnel,” Thorn said.
Thorn added he “wouldn’t presume to speak for the court” on whether the names of military experts consulted would become public.
Tara Borelli, counsel for Lambda Legal’s Southern Regional Office, said the judge’s order demonstrates “the government has no adequate basis to drag its feet in this case.”
“The government has refused to provide even the most basic of information to defend the discriminatory ban on military service by transgender people,” Borelli said. “We think this just confirms that there is no adequate justification for the ban, but regardless, the government doesn’t get to pick and choose when to comply with its obligations to provide information in litigation.”
On whether the court will make public the names submitted by the Trump administration, Borelli said “we don’t yet know whether the government might claim that some or all of the information might be subject to confidentiality restrictions, and therefore protected from public disclosure.”
Pechman issues the order 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, or whether the latest order will change that plan in any way.