It’s taken almost five years to find out more about what was behind former Assistant Attorney General Sally Yates’s refusal to cooperate with President Trump’s travel ban for terrorists, and, really, We the People are still waiting.
Earlier this year, Judicial Watch sued to find out what is in a handful of memos, and one court said no, that is information you are not entitled to know.
Well, after an appeal, the U.S. Court of Appeals for District of Columbia Circuit ordered that the lower court review each of those documents to determine if the information in them really is really qualified to be withheld.
The appellate court reversed a lower court ruling that the Justice Department could withhold certain records under the Freedom of Information Act’s Exemption 5 “deliberative process privilege,” which can be used to keep secret “pre-decisional” agency records. The appeals court ordered the lower court to directly review the records at issue in camera to determine if they qualify for withholding as “deliberative.”
Judicial Watch appealed the district court’s ruling on February 11, 2021. At issue are four records described as “working drafts” of January 30, 2017, a statement by Yates instructing DOJ officials not to defend the executive order issued by then-President Trump. Trump fired Yates for insubordination after she issued the one-page statement. The “working drafts” were sent as attachments in a chain of emails sent without messages between Yates and her deputy Matthew Axelrod…
So, what exactly was the ruling?
The appeals court ruled the Justice Department “failed to satisfy its burden” to demonstrate that the Yates attachments “are deliberative” and reversed the district court’s grant of summary judgment:
Because the district court chose to rely on the government’s declarations, and because we expect the attachments are relatively brief, we remand with instructions to review the attachments in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative. Should the district court conclude that the attachments are deliberative, it must then determine, consistent with the principles set forth in Reporters Committee, whether DOJ also satisfied its burden under the FOIA Improvement Act. 3 F.4th at 369-72.
Essentially, the lower court got spanked.
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