It should surprise no one that on Joe Biden’s short list for attorney general was former Acting Attorney General Sally Yates, an Obama holdover “who shot to national prominence after President Donald Trump fired her, making her one of the first heroes of the #Resistance.”
President Trump fired her after she refused in early 2017 to enforce his travel ban executive order. We filed an appeal with the US Court of Appeals for the DC Circuit in order to gain the release of Department of Justice records about Yates’ gross insubordination. We argue that the documents are not shielded from disclosure, as they are evidence of government misconduct by Yates.
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 after she issued the one-page statement.
The appeal concerns a May 2017 FOIA lawsuit we filed after the Justice Department failed to respond to a February 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. We recently filed the brief in the United States Court of Appeals for the District of Columbia (Judicial Watch vs. U.S. Department of Justice (No. 20-5304)).
The lower court ruled that the Justice Department could withhold the records under FOIA’s Exemption 5 “deliberative process privilege,” which is used to keep secret “pre-decisional” agency records.
We argue that the court has recognized “that government misconduct may overcome the
deliberative process privilege.”
“[W]here there is reason to believe the documents sought may shed light on government misconduct, the privilege is routinely denied, on the grounds that shielding internal government deliberations in this context does not serve the public’s interest in honest, effective government.”
Insubordination, especially by an acting attorney general seeking to defy an executive order issued by the President, is a “serious breach of the responsibilities of representative government.” The records at issue relate directly to Yates’ defiance of the President and breach of the duties she owed the President, which resulted in her being fired. The records reflect, or at least are purported to reflect, the thought process by which Yates chose to direct her subordinates to defy the President by not defending the President’s executive order. They are, in effect, deliberations on Yates’ decision to commit insubordination. They do not warrant protection under the deliberative process privilege and should be made public.
The “working drafts” were sent as attachments in a chain of emails sent without messages between Yates and her deputy Matthew Axelrod.
We also highlight how the Justice Department is undermining the FOIA reforms the Congress passed into law under the FOIA Improvements Act (FIA) 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.’”
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.
As an indication of the pandemic of lawlessness in the Justice Department, we obtained records in this case in 2017 that show 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.”