Disbanded Voter-Fraud Commission Must Turn Over Records

Vice President Mike Pence, third from right, accompanied by former Mayor of Cincinnati Ken Blackwell, fourth from right, Kansas Secretary of State Kris Kobach, second from right, and Indiana Secretary of State Connie Lawson, right, gavels in for the first meeting of the Presidential Advisory Commission on Election Integrity at the Eisenhower Executive Office Building on the White House complex in Washington, Wednesday, July 19, 2017. (AP Photo/Andrew Harnik)

WASHINGTON (CN) – A federal judge on Wednesday ordered President Donald Trump’s now-defunct voting integrity commission to turn over documents to one of its Democratic members by July 18.

The order, issued by U.S. District Judge Colleen Kollar-Kotelly, came in response to the commission’s request for reconsideration a Dec. 22 order to disclose records that Maine Secretary of State Matthew Dunlap says the commission blocked him from accessing.

The commission argued that President Trump’s Jan. 3 executive order terminating the body means the court should reconsider its order, but that fell flat with Kollar-Kotelly.

“They are not entitled to that second bite at the apple,” the judge wrote in the 57-page ruling.

Kollar-Kotelly said the commission’s dissolution does not control in terms of reconsideration of the court’s December order, which found Dunlap had a right to fully participate in the commission’s work.

That right was stunted, the court said, by the commission’s refusal to give him access to certain records it might rely on in making its final recommendations.

The government argued unsuccessfully that the matter is moot since the commission failed to reach any preliminary findings or produce a final report.

Citing D.C. Circuit precedent, Kollar-Kotelly ruled production of the records is the only way to understand the degree to which the commission thwarted Dunlap’s participation.

“Why should the plaintiff, a duly appointed member of that body, be expected to rely on the assertion of a records custodian that there are no ‘preliminary findings,'” she wrote.

She pointed to a Breitbart article quoting Kansas Secretary of State Kris Kobach, who served as the commission’s vice chair, saying the commission had revealed certain findings.

The government tried to walk back Kobach’s comment, but Kollar-Kotelly seemed unimpressed with its characterization of the information he referenced as materials the commission dealt with during its meetings, not as findings.

Kollar-Kotelly also pointed to a comment from the press secretary, who said Trump had asked Homeland Security to review its initial findings.

“Such post-hoc rationalizations are not persuasive, particularly where defendants offer no declarations from Mr. Kobach or the press secretary (or the president), nor even counsel’s own explanation of the press secretary’s statement on the part of those defendants who indisputably remain in this case,” she wrote.

She noted the commission’s preliminary findings were turned over to the Department of Homeland Security for further investigation, and that Kobach is expected to informally advise the department on the matter.

Only a review of the withheld commission records, the judge said, will determine whether any of them constitute findings.

“Perhaps there were draft findings or a draft report that simply were not deemed ‘final,'” she wrote. “Or perhaps emails exist that informally characterize the results of the commission’s work. It is more difficult to envision a presidential commission, with paid staff, being terminated without any internal characterization of that commission’s work over more than six months.” (emphasis in original)

Kollar-Kotelly said Dunlap is entitled to determine for himself if any of the commission records that were not shared with him constitute findings.

She also rebuked the government’s move to shut down the commission because of “endless legal battles,” saying doing so “suggests an effort to evade” the court’s prior order.

The commission disbanded 12 days after the order to produce the documents.

“They shall not be permitted to further postpone compliance with a preliminary injunction,” Kollar-Kotelly wrote.

Dunlap originally sued the commission and three of its members – including Vice President Mike Pence and Kobach – along with a slew of other government agencies and officials on Nov. 9.

 

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