Fix the Court today ended its lawsuit against the U.S. Department of Justice over a Freedom of Information Act request filed last year that sought records related to Justice Neil Gorsuch’s time at the agency.
FTC’s Dec. 2016 FOIA and Feb. 2017 suit – coupled with letters from senators asking for similar materials – compelled DOJ to release 175,023 pages in March to the Senate Judiciary Committee. At the time, DOJ claimed 11,219 pages of privileged material, 118 of which were subsequently released. In the spring, FTC and DOJ agreed that, pursuant to our suit, the agency would compile a Vaughn index by September 1, from which we learned DOJ was in fact asserting privilege on 58,968 pages of Gorsuch records – split between claims of “attorney work product” (30,690 pages) and “deliberative process” (28,278 pages).
Given the number of documents being withheld and the amount of time and resources it would take to determine whether DOJ’s privilege claims are legitimate, FTC concluded it could no longer pursue the lawsuit, choosing instead to focus on other work ahead of OT17.
“It’s time to move on,” FTC executive director Gabe Roth said, “but since this is not the last time the Justice Department will be asked to provide documents about a Supreme Court nominee, I’m hopeful our suit has compelled the agency improve its torpid process with more timely releases.” In the settlement agreement, DOJ agreed to pay FTC $2,500 to cover its legal fees.
The one document DOJ did send to FTC during the course of the lawsuit – the 106-page Vaughn index, comprising the date and subject line of more than 4,200 “deliberative process” e-mails Gorsuch sent or received, none of which had been previously released – does shed some light on potential conflicts for the newest justice. (All “attorney work product” e-mails were omitted from the index.)
For example, it appears that Gorsuch consulted on the Bush administration’s position on class action legislation (lines 4378 and 6497), and he received an e-mail about “warrantless surveillance complaints against AT&T” (line 421), which may be related to several open cases. Conversations about the Detainee Treatment Act, as well as other war-on-terror-related e-mails, also appeared in the index.
“Each justice must decide for himself which cases or controversies from prior jobs constitute conflicts, and I’m hopeful that Justice Gorsuch and his colleagues remain mindful of their statutory obligations regarding recusals in the upcoming term,” Roth added. Coincidentally, and just a week after his Tenth Circuit confirmation hearing, an assistant attorney general sent then-nominee Gorsuch an e-mail whose subject line was simply “28 USC 455.doc” (line 4303), the very recusal statute all federal judges and justices must follow.
On Dec. 22, 2016, FTC requested “copies of all complaints, correspondence and any performance reviews or reprimands” involving Gorsuch during his time as deputy assistant attorney general in 2005-2006, including but not limited to “digital (e-mail), print or other correspondence and attachments involving Mr. Gorsuch, including instances where he is merely carbon copied.”
The Justice Department’s response on Jan. 26, 2017, contained neither documents nor a request for payment but stated that the Office of Information Policy would need an additional 10 days to respond. Having not received any further information since, FTC filed suit on Feb. 24.
In the weeks that followed, DOJ released 175,023 pages to the Senate Judiciary Committee’s website, while noting in a Mar. 17 letter that 11,101 pages documents would remain hidden from public view though would be available for review by committee members and their staffs.
As FTC’s litigation with DOJ progressed, the parties agreed that DOJ would by September 1 create a catalog, called a Vaughn Index, comprising the “from,” “to” and “subject” lines of all the previously withheld e-mails on which agency was not claiming “attorney work” privilege, which DOJ provided on time. The index includes a list of 6,775 items, 4,272 of them e-mail messages and 2,503 attachments to e-mails.
With the start of a new term days away, FTC decided to refrain from continuing with the suit, which would have required identifying specific e-mails and attachments to try to unseal via further court filings, the relevance of which (and likelihood of success) is almost impossible to determine from the scant information in a Vaughn index.