Justice Department lawyers are refusing to name the advisers Donald Trump supposedly consulted with before issuing his transgender military ban, despite a court ordering them to do so.
U.S. District Judge Marsha Pechman in Washington State, who is hearing one of the lawsuits against the ban, gave the lawyers, representing the Trump administration, until 8 p.m. Eastern time Thursday to provide the names. But instead, they filed a document saying that executive privilege allows them to keep the names under seal, the Washington Blade reports. They took that position “even though Pechman had determined that information isn’t subject to that protection,” according to the paper. The principle of executive privilege lets the president keep certain information confidential if doing so is in the public interest.
“Defendants respectfully disagree and adhere to their position that judicial deference to executive decisions about the composition of the military is not dependent upon judicial review of the deliberative process that preceded the decisions at issue,” the document states. “In addition, defendants do not waive any executive privileges simply by arguing for judicial deference to the President’s military decisions.”
When Trump issued the ban via Twitter last July, reversing the Obama administration's lifting of the ban, he claimed to have done so after “consultation with my Generals and military experts.” But those experts appeared blindsided by the announcement. Defense Secretary James Mattis was on vacation at the time, and Gen. Joseph Dunford, chairman of the Joint Chiefs of Staff, has indicated he was not consulted on it. There’s the possibility that Trump consulted only with far-right advisers or crafted the ban entirely on his own.
Pechman’s order came in the case of Karnoski v. Trump, brought by Lambda Legal and OutServe-SLDN on behalf of current and aspiring transgender military members, in addition to three organizations, the Human Rights Campaign, the Gender Justice League, and the American Military Partner Association. It is one of four lawsuits against the ban; in all cases, judges have blocked enforcement of the ban while the suits are heard.
The Justice Department has sought to assert executive privilege in another of the suits, being heard in Washington, D.C., but the judge in that case, U.S. District Judge Colleen Kollar-Kotelly, has expressed skepticism about whether the doctirne is applicable.
Lambda Legal and OutServe-SLDN both said the latest Justice Department action shows there is no justification for the ban. It is “yet more proof that when it comes to justifying this ban, the government doesn’t have the goods.” Tara Borelli, counsel for Lambda Legal’s Southern Regional Office, told the Blade.
“The government has said that it simply will not provide information about the process that led to the president’s Twitter ban,” Borelli continued. “As the government well understands, this means that it will not be able to rely on that information to help defend the ban, which exposes a fatal flaw in their position: There is no justification for this discrimination. The government isn’t willing to pull back the curtain, because there’s nothing behind it.” It’s “yet one more reason for the court to permanently enjoin the ban,” she said.
Added Matt Thorn, executive director of OutServe-SLDN: “The stance Trump is advancing on open transgender military service is offensive, distasteful, and tenuous. Our service members, no matter their sexual orientation or gender identity, deserve a commander in chief that will advocate for equity and justice on their behalf – this administration is failing in that respect. We look forward to seeing the day when all qualified individuals are able to serve this country with honor and dignity, as their true and authentic selves.”
Trump is scheduled to issue new guidance today on the status of trans people in the military, having received input from Mattis. It is expected to include some restrictions.