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Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, listens as President Donald Trump speaks about the coronavirus. (AP Photo/Alex Brandon)

 

FOIA, FOIA Everywhere, and Not a COVID Doc in Sight

When the Trump administration refused to hand over records as part of the Ukraine-based impeachment inquiry, it was the public records lawsuits that emerged as a way to get those documents released. And now, as the administration stymies oversight on the COVID-19 pandemic response, Freedom of Information Act lawsuits are once again landing in federal court.

It's a pretty familiar pattern to those who have watched the battles between the Trump administration and Congress: Can't get docs? Go to court! And those going to court are often the media or watchdog groups. It takes a while to get the information out there, but it eventually does, in redacted form at least.

So with Trump firing inspectors general or saying he won't comply with all the oversight mechanisms tied into coronavirus relief bills, it's the FOIA lawsuits that are coming in.

Groups like American Oversight have filed for communications among administration officials like Dr. Anthony Fauci, the federal government's top infectious disease expert, on the initial response to the pandemic, as well as directives from the White House on virus testing or to the Centers for Disease Control and Prevention on the public role the agency should play in the virus response.

Media outlets like BuzzFeed News's Jason Leopold, represented by Loevy & Loevy, have filed similar requests on the administration's response to the pandemic. In a court filing Tuesday, in a case seeking records from the CDC and several other federal agencies in relation to the coronavirus, Justice Department lawyers said officials have either completed or are still conducting searches for the documents, but a large number of documents have turned up in those searches.

For example, Leopold and BuzzFeed News asked for "[a]ll emails[ and] text messages sent and received by Anthony Fauci mentioning or referring to Coronavirus/COVID-19."

"NIH ran an email search in response to that part of the request and has thus far located more than 34,400 potentially responsive documents," Tuesday's filing states. "In light of that volume, the parties are exploring narrowing the FOIA request such that it seeks only the emails Dr. Fauci sent and a limited number of corresponding email threads."

That large volume of documents was also the topic of a lawsuit filed by American Oversight last week, alleging the CDC and Department of Health and Human Services were violating the public records law by describing requests as "overly broad" because of the number of records that turned up as a result of the searches.

"On information and belief, CDC systematically refuses to process reasonably described FOIA requests based on the assumption that the request, as written, may produce a large volume of responsive records, unless the requester agrees to narrow the request," the lawsuit alleges. "Specifically, CDC consistently informs FOIA requesters that reasonably described requests are overly broad (or a substantially similar variation thereof), and places their requests on hold, with the threat that the requests will be considered withdrawn and closed in the event CDC does not receive a response by a prescribed date."

It's not just the health response to the pandemic that's getting scrutinized in court, but also the administration's economic efforts. A coalition of media groups, including ProPublica, the New York Times and the Washington Post, last week filed a lawsuit with the help of Ballard Spahr lawyers seeking the names of businesses who received Paycheck Protection Program funds under the CARES Act.

That comes after several corporations were named-and-shamed for requesting and receiving the federal funds designed to help smaller businesses that cannot survive virus-tied restrictions without the assistance. The Los Angeles Lakers and Shake Shack were among those who got the loans and then returned them.

"Plaintiffs submitted these FOIA requests and sought expedited processing of them because of the public interest in contemporaneously monitoring the disbursement of billions of taxpayer dollars through expansive federal initiatives – most notably the new Paycheck Protection Program – during this period of unprecedented financial and social disruption, and because the [Small Business Administration] has until now routinely provided such information about businesses that take out SBA loans," the complaint reads.

The FOIA requests aren't going to stop being filed and the lawsuits will keep coming in. But it's not going to be an easy fix—those Ukraine record suits I mentioned earlier are still being litigated, and it could be years before everything is resolved and released. Federal judges in D.C. who oversee the public records cases against the administration were already complaining of a flood of FOIA litigation. This isn't going to help them much.

 

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What We're Reading

>> 'I Don't Think That's Disqualifying': Senators Clash Over Fifth Circuit Nominee's Conservative Stances: "'The idea that you would be a conservative Republican is a bad thing only if you're a liberal Democrat,' Graham said. 'Who do you think we're going to pick? We're going to pick people that think like us that will be good judges. And when you get in charge, if you ever do, you're going to pick people that come from your world. But the goal here is to pick people who are qualified, people that can set aside their political views.' 'The question is, are you the type of person who can set aside those beliefs and render justice in the case before you, with the intellect and the understanding that comes from wearing the robe?' Graham added." [National Law Journal]

>> Justice Dept. Unit That Prosecuted Roger Stone Is Reorganized: "Law enforcement officials had discussed an overhaul of the unit for years, but it was not clear why Mr. Shea implemented it when he seemed on the verge of leaving, according to half a dozen people briefed on the changes who would not be named discussing it for fear of retribution….Even as the restructuring was being finalized, it became clear that Mr. Shea was unlikely to remain after his appointment expired in June. District court judges in Washington could have voted to keep him in the job, but in recent days they requested a call with Mr. Shea to discuss such a vote and intimated that he would not be their pick, according to two people briefed on the conversation." [New York Times] Ex-Jones Day Partner Justin Herdman Picked to Succeed Shea as DC's US Attorney: "If confirmed, Herdman would take charge of the largest U.S. attorney's office in the country, replacing Shea after a rocky tenure bookended by controversial moves in cases inherited from former Special Counsel Robert Muelller III." [National Law Journal]

>> Barr-installed top DOJ aide, prosecutor of Trump's Mar-a-Lago trespasser, to serve as acting U.S. attorney in Washington: "The Justice Department bars active prosecutors from speaking to media outlets about cases without high-level approval. But several assistant U.S. attorneys in the office — each with experience prosecuting violent crimes or public corruption — said they felt 'defanged,' torn and staggered by the personnel moves coupled with the appearance of special treatment for the president's friends. Some said they have lost credibility when asking for cooperation from defendants, witnesses and victims whose lives depend on their word. 'How do I secure a plea now? How do I get victims to trust me? How do I get cooperators to trust me?' said one of the assistant U.S. attorneys, who each spoke on the condition of anonymity to discuss official matters." [Washington Post]

>> Barr's Move to Drop Flynn Case Puts Spotlight on 1977 US Supreme Court Ruling: "Thomas Frampton, a Harvard Law School lecturer, dug into the history of the 'leave of court' rule for a forthcoming Stanford Law Review article. His conclusion: 'The government's position—and the U.S. Supreme Court language upon which it is based—is simply wrong.' ….' other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors' attempt to abandon a case,' he added." [National Law Journal]

>> Justice Department centralizes control of sensitive insider-trading probes: "Multiple U.S. Attorney's offices—including the Southern District of New York—wanted to handle insider trading investigations of lawmakers, one of the sources said, but all the probes have been centralized in D.C. It would have been logical for SDNY to have jurisdiction: Wall Street is located there, and the district has extensive experience investigating and prosecuting complex financial cases. Other offices that telegraphed interest were the residences of potential targets. Spokespersons for the Justice Department and SDNY declined to comment." [Politico]

>> Freed by Court Ruling, Republicans Step Up Effort to Patrol Voting: "Besides the national party and Mr. Trump's campaign strategists, conservative advocacy groups are joining lawsuits, recruiting poll monitors and mounting media campaigns of their own. Leading them is a new and well-funded organization, the Honest Elections Project, formed by Leonard Leo, a prolific fund-raiser, advocate of a conservative judiciary and confidant of Mr. Trump….In addition to the $20 million raised by the party for legal battles over election rules, conservative advocacy groups have joined the legal war, filing lawsuits and briefs in states such as New Mexico, Minnesota and Nevada. The Honest Elections Project, which surfaced only this spring, already has joined legal battles over voting in six states and has spent $250,000 on advertising opposing voting by mail." [New York Times]

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Thanks for reading Trump Watch! Enjoy the long weekend and stay safe—we'll be back next week.