Judicial Watch announced today that the U.S. Court of Appeals for District of Columbia Circuit ordered a lower court to directly review records withheld by the Justice Department about former Acting Attorney General Sally Yates related to her 2017 refusal to enforce President Donald Trump’s travel ban executive order (Judicial Watch vs. U.S. Department of Justice (No. 20-5304)).

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 a January 30, 2017, 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.

Judicial Watch filed a May 2017 Freedom of Information Act (FOIA) lawsuit after the DOJ failed to respond to a February 2017 FOIA request seeking Yates’ emails from her government account (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-00832)) for the time period she served as Acting Attorney General for President Trump.

In its appeal, Judicial Watch highlighted how the Justice Department was undermining the FOIA reforms passed into law Congress under the FOIA Improvements Act  in 2016 that “established a new, heightened standard of proof that agencies must meet when making discretionary withholdings of records requested under FOIA. Congress intended the FIA to shore up FOIA, not preserve a years-long, unsatisfactory status quo of ‘withhold-it-because-you-want-to’ exemptions and ‘knee-jerk secrecy.’”

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.

“This appeals court decision is a victory for transparency in the face of the Justice Department’s casual contempt for transparency,” said Judicial Watch President Tom Fitton. “In an act of seditious and unethical conduct, Obama holdover Sally Yates sought to subvert then-President Trump by interfering with his lawful travel ban. That the Justice Department would try to cover up the details of this lawlessness is yet another scandal.”

In 2017, Judicial Watch obtained records through this lawsuit that showed strong support by Robert Mueller Deputy Andrew Weissmann and other top DOJ officials for Yates’ refusal to enforce President Trump’s travel ban. In one email Weissmann writes: “I am so proud. And in awe. Thank you so much. All my deepest respects.”

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