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The Department of Justice Building in Washington, DC<\/p>\nThe Department of Justice Building in Washington, DC<\/p>\n
A federal judge\u2019s comprehensive rebuke of the Department of Justice\u2019s (DOJ) aggressive campaign for California\u2019s voter rolls last week could hurt DOJ\u2019s cases against other states, experts say.<\/p>\n
In fact, the ruling <\/a>by U.S. Judge David O. Carter could even influence upcoming lawsuits against President Donald Trump\u2019s administration beyond the context of voter registration, by encouraging courts to treat the federal government\u2019s claims with the skepticism they often appear to deserve. It also led one elections expert to suggest that DOJ lawyers could be criminally liable for seeming to willfully ignore federal privacy protections in demanding the voter data.<\/p>\n Federal judges last week rejected two DOJ lawsuits seeking California and Oregon\u2019s voter rolls. The department has filed similar suits against 22 other states, and Washington, D.C.\u00a0<\/p>\n \u201cThe Court did a very good job of demonstrating that the DOJ had not met its obligation to show that Congress had specifically authorized this kind of collection of data, and given the elections clause of the Constitution, Congress has to authorize the DOJ to enforce some specific congressional action, and it hasn\u2019t,\u201d said David Becker, executive director of the Center for Election Innovation & Research and a former DOJ attorney. \u201cAs the Court pointed out \u2014 and as I pointed out in the past \u2014 if Congress decided that the federal government should create a national database, if Congress decided that states should have to look for non citizens on their list regularly, Congress would do so.\u201d\u00a0<\/p>\n \u201cThe DOJ doesn\u2019t have the authority to get voter files using the statutes it\u2019s claiming,\u201d said Justin Levitt, a law professor at Loyola Marymount University and another former DOJ attorney. \u201cAnd more than that, I think that the DOJ is affirmatively precluded from getting the voter files that they\u2019re seeking, including the voter files that they may have received already.\u201d\u00a0<\/p>\n In his ruling, Judge Carter addressed the DOJ\u2019s duplicitous arguments for the records in court, which have been repeatedly contradicted by administration officials\u2019 statements out of court.\u00a0\u00a0<\/p>\n \u201cThe Court is not required to accept pretextual, formalistic explanations untethered to the reality of what the government has said outside of the courtroom,\u201d Carter wrote.\u00a0<\/p>\n Carter pointed to comments Civil Rights Division attorneys made out of the courtroom, in interviews and social media, that contradict the purpose government lawyers cited in their legal filings. While the DOJ has claimed in court that they are seeking these files to assess the quality of states\u2019 voter registration roll maintenance procedures, Assistant Attorney General for Civil Rights Harmeet Dhillon has bragged<\/a> how the agency has screened the \u201c47.5 million voter records\u201d for ineligible registrants.\u00a0<\/p>\n \u201cThe Court does not take lightly DOJ\u2019s obfuscation of its true motives in the present matter. Congress passed the [National Voter Registration Act], Civil Rights Act, and [Help America Vote Act] to protect voting rights,\u201d Carter wrote. \u201cIf the DOJ wants to instead use these statues for more than their state purpose, circumventing the authority granted to them by Congress, it cannot do so under the guise of a pretextual investigative purpose.\u201d<\/p>\n Although justified, Becker said it was gobsmacking to see his former employer, once home to some of the finest lawyers in the nation, get reprimanded so bluntly for misleading a court.\u00a0<\/p>\n \u201cThe DOJ\u2019s greatest asset over its entire existence has been the quality of their lawyers, the ethics of their lawyers, and the credibility that is engendered with courts,\u201d said Becker. \u201cWe now see judges \u2014 appointed by both parties, so even some Trump judges \u2014 openly questioning whether the DOJ is being honest with the court, whether the DOJ is meeting its obligations as an officer of the court, [and] whether they should give any deference to claims made by the DOJ.\u201d<\/p>\n \u201cThat is shocking,\u201d he added. \u201cIt\u2019s justified, given what\u2019s happened, but that is such a tremendous sea change from what the Department of Justice used to be.\u201d\u00a0<\/p>\n \u201cI don\u2019t like the notion that members of the Department of Justice are committing federal crimes,\u201d noted Levitt. \u201cI don\u2019t like much of what they\u2019ve been doing lately, including not just the policy direction, but the sloppiness. I think it\u2019s destroying 150 years worth of credibility.\u201d\u00a0\u00a0<\/p>\n \u201cJudges are getting fed up with the DOJ lying to them and doing a particularly bad job at being a credible source,\u201d Levitt said. \u201cJudges across the board are looking at how the Department of Justice has treated them \u2014 how the Department of Justice has treated their colleagues \u2014 and they\u2019re demanding proof now that they might have been a little softer about before.\u201d<\/p>\n \u201cEvery instance where the DOJ is called out for fabricating is another blow to whatever tiny shred of credibility is left,\u201d he added, noting that this could play a role in other contexts where the presumption of regularity<\/a> \u2014 the judicial deference courts normally credit the federal government by assuming officials have properly discharged their official duties, unless there is direct evidence to the contrary \u2014 like the potential invocation of the Insurrection Act <\/a>to deploy troops to U.S. cities. Judges may be less willing to accept the federal government\u2019s purported justifications if President Donald Trump attempts to use it.\u00a0<\/p>\n I don\u2019t know many judges that would just take the DOJ at its word at this point,\u201d Levitt said.<\/p>\n \u201cAnd \u2014 I want to be abundantly clear \u2014 that it\u2019s not because of political preference. That\u2019s because of DOJ\u2019s own behavior over the last year.\u201d Levitt added.<\/p>\n The DOJ declined to comment.\u00a0<\/p>\n Derek Clinger, senior staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School, pointed to Carter\u2019s comprehensive discussion of the 1960 Civil Rights Act (CRA), and the DOJ rarely-invoked demands under it for access to voter registration records. \u201cThat\u2019ll be the most read part by the other courts,\u201d Clinger said, noting that the agency failed to provide a written basis for the record demands \u2014 a reason for believing the states were acting unlawfully \u2014 as required by the CRA.\u00a0<\/p>\n Given how bad things appear to be going for the DOJ now in these cases, Clinger had wondered if a strategic retreat might be coming \u2014 a restart, of sorts, where the department resends the demand letters required by the CRA, this time with a more explicit basis and purpose cited. But even assuming a court accepted that course correction \u2014 a judge might still question the validity of the purported basis \u2014 the agency would still run into privacy law issues.\u00a0<\/p>\n Instead, the department filed its 25th lawsuit demanding unfettered access to voter rolls on Friday, this time in Virginia<\/a>. And while this latest filing makes some tweaks to the arguments made in earlier cases, Clinger doubts it\u2019ll lead to a different outcome.*<\/p>\n Listening to the arguments in Oregon, where District Judge Mustafa T. Kasubhai tentatively ruled against the DOJ ahead of issuing a written order, Clinger noted how the DOJ\u2019s lawyers were struggling to convince the judge there it wasn\u2019t making a national voter list while simultaneously posting social media videos of DOJ leaders celebrating<\/a> how it was doing just that.<\/p>\n \u201cYou see what their supervisor is saying to the public, or what DHS says, [and it] just seems to contradict everything that they\u2019re saying to the courts,\u201d Clinger said.<\/p>\n Carter\u2019s opinion also highlighted the many ways that the DOJ\u2019s demands violated federal privacy law.<\/p>\n This analysis could also prove influential beyond the voter roll cases, particularly those challenging DHS\u2019s massive consolidation of data from federal, state and private-sector sources. As Carter himself notes in the opinion, \u201cReports from other agencies also point to the federal government laying the groundwork to amass the personal information of millions of Americans in a centralized database.\u201d<\/p>\n Carter noted that Congress passed the 1974 Privacy Act precisely to block the executive branch\u2019s Orwellian tendencies. \u201cCongress wanted to prevent \u2018interagency computer data banks\u2019 so it made it \u2018legally impossible for the Federal Government in the future to put together anything resembling a \u20181984\u2019 personal dossier on a citizen,\u2019 and to ensure \u2018proper regard for individual privacy, the confidentiality of data, and the security of the system,\u2019\u201d he wrote.\u00a0<\/p>\n That analysis may prove influential in other contexts as lawsuits to block those efforts are launched and advance<\/a>.<\/p>\n Levitt believes that the DOJ\u2019s failure to even attempt to comply with the Privacy Act, as Carter\u2019s opinion highlights, may expose some of its lawyers to criminal liability. When he first noticed the issue a few months ago, Levitt assumed his analysis was missing something \u2014 something giving the federal attorneys an out, some reason why he was wrong.<\/p>\n \u201cIt\u2019s increasingly clear now that I\u2019m not the problem here; they\u2019re the problem here \u2014 that they didn\u2019t do their homework,\u201d Levitt said. \u201cAnd it\u2019s a federal crime in this particular arena to not do your homework and to collect this sort of information.\u201d<\/p>\n That same criminal liability would be less likely to attach to state officials complying with the DOJ, notwithstanding a letter to that effect<\/a> the Democratic National Committee sent to some offices earlier this month, Levitt said, noting that local officials could reasonably assume that the federal government wasn\u2019t asking them to break the law.<\/p>\n Levitt has no expectation that this DOJ will police its own, but he hopes the next administration will. And while it\u2019s unlikely anyone would go to jail \u2014 the crime\u2019s a misdemeanor and the penalty would likely be just a fine \u2014 \u201cnone of that makes it okay,\u201d he said.\u00a0<\/p>\n Judge Carter also dismissed the DOJ\u2019s recent crowing about an order issued in the government\u2019s lawsuit against Connecticut, where District Judge Kari A. Dooley, a Trump appointee, scheduled a hearing on a motion to show cause asking the state why it shouldn\u2019t turn over their voting records. In the DOJ\u2019s later voter roll lawsuits, it has claimed the CRA provides the Attorney General sweeping authority to simply file a motion to compel production of records, apparently believing this procedural difference would give them a leg up in litigation.\u00a0<\/p>\n After Dooley put the show cause hearing on the calendar, DOJ attorneys quickly flagged it in the California litigation, and Jesus Osete, principal deputy assistant attorney general of civil rights, bragged on social media. \u201cGreat news out of Connecticut tonight. It\u2019s precisely how Congress intended the Civil Rights of 1960 to function,\u201d he wrote. \u201cProud of our @CivilRights, Voting Section Team for securing this order 48 hours after filing suit. Onward!\u201d<\/p>\n His boss, Assistant Attorney General Dhillon, retweeted a handful<\/a> of posts<\/a> from right-wing accounts calling the scheduling order a \u201cbig win<\/a>.\u201d<\/p>\n Carter dismissed all of that with a wave of the hand. \u201cThe Court has reviewed the District of Connecticut order and agrees that it amounts to nothing more than a scheduling order delineating a briefing schedule.\u201d<\/p>\n The department leadership\u2019s ongoing obsession with online opinion continues to bewilder Becker, who remembers when far more sober minds lead the agency.\u00a0<\/p>\n \u201cEarlier this week, the Assistant Attorney General for Civil Rights [Dhillon] tweeted out [a] tweet that said \u2018so much winning\u2019 in all caps,\u201d Becker said, with a derisive laugh. \u201cI mean, this is right before a pretty remarkable consecutive string of defeats.\u201d\u00a0<\/p>\n *Democracy Docket Founder Marc Elias\u2019s law firm, Elias Law Group, represents intervening defendants in many of these lawsuits.<\/p>\n","protected":false},"excerpt":{"rendered":"The Department of Justice Building in Washington, DC A federal judge\u2019s comprehensive rebuke of the Department of Justice\u2019s…\n","protected":false},"author":2,"featured_media":142911,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[7,9,8],"class_list":{"0":"post-142910","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-california","8":"tag-california","9":"tag-california-headlines","10":"tag-california-news"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/142910","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/comments?post=142910"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/142910\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media\/142911"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media?parent=142910"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/categories?post=142910"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/tags?post=142910"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}