DC Circuit Checks Trump Administration's Bid to Oust Internet Freedom Advocate's Board
"Each day that the government is allowed to escalate its takeover undermines that trust—trust that may never fully be regained," Deepak Gupta argued for the Open Technology Fund in the D.C. Circuit.
July 21, 2020 at 02:57 PM
4 minute read
A Washington federal appeals court on Tuesday blocked the asserted power of the Trump administration to replace the officers and directors of a private nonprofit internet advocacy organization that the U.S. government funds.
The U.S. Court of Appeals for the D.C. Circuit issued an injunction stopping the replacement of board members of the Open Technology Fund, a nonfederal organization that is overseen by the U.S. Agency for Global Media.
The Justice Department had argued the Trump-appointed chief executive of the U.S. Agency for Global Media, Michael Pack, had authority to replace the Open Technology Fund's members. A trial judge earlier ruled for the Trump administration.
D.C. Circuit Judges David Tatel, Thomas Griffith and Patricia Millett said they would expedite the appeal lodged by the Open Technology Fund, or OTF, represented by the litigation boutique Gupta Wessler.
"The officers and directors of OTF that were in those roles prior to the government's actions on June 17, 2020, shall continue in their normal course throughout the pendency of this appeal," the judges wrote in their unanimous order.
The D.C. Circuit panel said federal law does not identify the Open Technology Fund, founded last year, as a "broadcast entity" that reports to the chief executive of the U.S. Agency for Global Media.
"As for the government's argument that the bylaws authorize such intervention by Mr. Pack, they appear at this juncture only to reference the exercise of statutory authority, which does not seem to include control of OTF's board or operations," the judges wrote.
In arguing for an injunction, Deepak Gupta, founding principal of Gupta Wessler, said the Open Technology Fund's "ability to fulfill its mission depends on maintaining the trust of journalists and activists in repressive regimes around the world, who view its independence as essential to their personal safety." He continued: "Each day that the government is allowed to escalate its takeover undermines that trust—trust that may never fully be regained."
Gupta has argued that "OTF's bylaws entitle it—as an independent, self-governing organization—to elect directors of its choosing."
Under Pack, the U.S. Agency for Global Media removed the heads of three other government-funded entities under the media organization's oversight: Radio Free Europe, Radio Free Asia and the Middle East Broadcasting Networks.
"Widespread misgivings about Pack's actions raise troubling concerns about the future of these great institutions designed to advance the values and interests of the United States by providing access to accurate news and information and supporting freedom of opinion and expression in parts of the world without a free press," U.S. District Judge Beryl Howell of the District of Columbia wrote in her ruling earlier this month.
Still, Howell concluded the Open Technology Fund's grant agreement and bylaws permitted the U.S. Agency for Global Media to remove and replace the internet organization's officers and directors.
"Congress has decided to concentrate unilateral power in the USAGM CEO, and the court cannot override that determination," Howell wrote. "If Pack's actions turn out to be misguided, his appointment by the President and confirmation by the Senate points to where the accountability rests: at the ballot box."
Justice Department lawyers, defending Pack's personnel moves, said the plaintiffs had portrayed "Open Technology Fund as a conventional private nonprofit, created in 2019 with no connection to the government. Reality belies that description." The Open Technology Fund, funded by the global media agency, is "subject to the agency's uniquely 'powerful' oversight," DOJ lawyers argued.
Gupta's no stranger to disputes involving agencies caught up in a clash over leadership.
Several years ago, he represented the then-deputy director of the Consumer Financial Protection Bureau, Leandra English, in a dispute over the leadership of that agency. The feud arose after the Trump White House installed Mick Mulvaney as the acting leader after the resignation of Richard Cordray.
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