(Above photo by National_Progress_Party, from Wikimedia Commons)
A federal judge has ruled against the Trump administration in litigation challenging the transgender military ban, ordering the Defense Department to turn over documents it had previously on the policy withheld on the basis they were predecisional and deliberative before the restriction went into effect.
U.S. District Judge Marsha Pechman in Washington State, a Clinton appointee, issued an order Friday requiring the Trump administration to hand over documents requested as part of the discovery process for the lawsuit by October 5.
“This matter comes before the court upon defendants’ recent submission of documents for in camera review, filed in response to the court’s recent orders on defendants’ assertion of the deliberative process privilege,” Pechman writes. “After careful examination of each document submitted for in camera review, the court finds that the documents do not fall within the proper scope of the deliberative process privilege and orders defendants to produce the documents by October 5.”
The lawsuit, Karnowski v. Trump, was filed in 2017 by the LGBTQ group Lambda Legal and the group now known as the Modern Military Association of America on behalf of various plaintiffs, including transgender military service members and the Human Rights Campaign, against the ban.
Peter Perkowski, legal and policy director for the Modern Military Association of America, said via email to the Washington Blade the order is a victory in the ongoing lawsuit.
“The Trump-Pence administration has once again lost to legal scrutiny and can no longer hide critical documents related to Trump’s unconstitutional transgender military ban,” Perkowski said. “From the moment Trump recklessly tweeted his ban to the day the Department of Defense implemented it, it has always been crystal clear that this transgender military ban is based on nothing more than blatant discrimination.”
The lawsuit before Pechman in Washington State was filed after President Trump tweeted in 2017 he’d ban transgender people from the military “in any capacity,” but before the Pentagon under former Defense Secretary James Mattis completed his six-month policy and implemented restrictions based on his recommendations.
The case has been percolating through the Ninth Circuit for years. Although Pechman initially issued a preliminary injunction barring enforcement of the transgender military ban, the U.S. Supreme Court overturned that order, allowing the policy to go into effect as litigation proceeds.
At issue in the order Pechman granted Friday are documents related to the discovery process in the lawsuit, which compels the U.S. government to produce material relevant to the transgender military ban. Those documents are expected to demonstrate whether the Defense Department implemented policy against transgender people as result of Trump’s tweet, or whether the military determined it needed to exclude them as result of an independent review former Defense Secretary James Mattis was conducting at the time.
As Pechman writes, “one of the central questions in this litigation is whether the Mattis Policy was ‘dictated’ by the president and therefore ‘preordained,’ or whether it is the product of independent military judgment, separate and apart from the president’s tweet.”
“The documents at issue in this motion are directed to this central question – whether the Mattis Policy was nothing more than the implementation of the 2017 memorandum or an independent review,” Pechman writes.
For two-and-a-half years, Pechman writes, the discovery process has been slowed down in a dispute over the Trump administration’s assertion of the deliberative process privilege over 35,000 to 50,000 documents. Until March, all parties were proceeding under the assertion was assumption had met its obligations to assert this privilege, but things changed at that time, Pechman writes.
“For example, the court found that the government had asserted the DPP over documents that were sold on public websites or were created by foreign governments,” Pechman writes. “In fact, before submitting the documents for in camera review, the government itself conceded that nearly 18 percent of the documents it had designated as privileged within the random sample were not subject to a proper DPP claim. Indeed, after reviewing the 850 documents, the court found that nearly 90 percent of the randomly selected DPP-claimed documents were not privileged.”
As a result, Pechman in July ordered the Trump administration to hand over additional materials, outlining a discovery management tool that would speed the Court’s review going forward.
But with those materials — approximately 115 pages of communications surrounding the president’s tweet — now before the court, Pechman writes she discovered none were eligible for protection from scrutiny. The documents, Pechman writes, demonstrated the Defense Department had been working to implement the policy of open service under the Obama administration as directed by former Defense Secretary Ashton Carter before Trump tweeted he’d ban transgender people from the armed forces.
“With respect to the documents here, there was no ongoing process dealing with what has become the Mattis Policy, with the exception of the Carter Policy on accessions,” Pechman writes. “Instead, prior to the president’s tweet, the transgender working group was busy with actual implementation plans for the Carter Policy. This came to a screeching halt with the president’s tweet.”
Pechman quotes one email saying the transgender working group is “pivoting” from implementing open service to “a review of the implications of the President’s announcement” and the Defense Department was in communication with the White House and National Security Council “anticipating further written guidance from POTUS directing the change in policy.” (Pechman underlines “directing the change in policy” when quoting the email in her order.)
As a result, Pechman concludes the documents are neither deliberate nor predecisional, but material to the plaintiff’s case because “it easy to infer from the communications that many of those in the transgender working group believed the president’s tweet was to be treated as an order and required the working group to respond accordingly.” On that basis, Pechman orders the government to turn over the remaining documents with few exceptions.
“The documents surrounding the president’s tweet go directly to plaintiffs’ theory,” Pechman writes. “They do not deal with a policy process. They are not deliberative; they are not predecisional. None refer to policymaking or processes. There are no documents reflecting discussions between the president and any of his ‘Generals or military experts.’ These documents are material and reflect an absence of policy process. The DPP is designed to protect the deliberative process, it is not to be a method for avoiding production of ‘inconvenient’ or embarrassing documents.”
The Washington Blade has placed a request in with the Justice Department seeking comment on the order and whether the Trump administration would seek to appeal. It wasn’t immediately clear the documents would be available to the public, or whether they’d have restricted access before the court.
