Judge Nails Trump’s Election Commission on Records Handling

WASHINGTON (CN) – A federal judge on Wednesday ordered the Trump administration to show more evidence that a new commission tasked with investigating election fraud is complying with public-disclosure laws.

The order this morning came as part of a demand by the Lawyers’ Committee for Civil Rights Under Law for limited discovery after the Presidential Advisory Commission on Election Integrity failed to release all of the materials it used during its first meeting on July 19.

Despite having promised to release all materials before the meeting even occurred, the commission explained in a July 31 opposition brief that it could not do so because certain commission members did not submit their materials in advance.

U.S. District Judge Colleen Kollar-Kotelly skewered attorneys for the commission on this point at a hearing this morning, saying she found it “hard to believe” that commission members would show up to a meeting not fully informed of what they would discuss.

“You didn’t completely live up to your representations,” she said.

Under fire by Kollar-Kotelly about what steps were taken to inform commission members of their obligation to disclose materials under the Federal Advisory Committee Act, Justice Department attorney Elizabeth Shapiro apologized immediately.

Expressing “sincere regret” to the court, Shapiro said not all commission members understood their disclosure obligations.

Training about the Federal Advisory Committee Act occurred on the day of the commission’s first meeting, prior to its start, Shapiro explained. She said commission members were told their documents and materials would be made public, but the timing of the disclosure was not discussed.

Commission members also lacked clarity about whether they could bring materials, and were under the impression that one member might have had a PowerPoint presentation.

“It was a chaotic start to the commission – a little bit of unknown and disorganization in terms of how the meeting would happen,” Shapiro said.

When asked what the commission has done since then, Shapiro said a letter was sent to members stipulating submission deadlines for their materials prior to their second meeting next month.

Saying she needs more than the commission’s assurances, Kollar-Kotelly closed this morning’s hearing with an order for the commission to compile a Vaughn index — a document that has been a fairly standard requirement of all Freedom of Information Act cases since the 1973 decision Vaughn v. Rosen.

Ordinarily these indices merely itemize any information that an agency withheld, along with an explanation of why disclosure would damage its interests.

Kollar-Kotelly wants a bit more than that, however, telling the commission to describe each of its records, indicate who prepared them, and say whether the commission believes each record is subject to disclosure. She also wants to know how the commission is deciding what should be collected and considered for disclosure.

In its July 31 opposition brief, the government had argued that it was not required to disclose materials prior to its first meeting that had not been shared with all commission members.

The Lawyers’ Committee for Civil Rights Under Law attacked this understanding in its Aug. 4 reply, saying such thinking undermines the purpose the law’s disclosure provision.

“Defendants’ rule would invite mischief, but Congress specifically sought to guard against such gamesmanship in the use of advisory committees in imposing FACA’s transparency requirements,” the reply brief states, abbreviating the Federal Advisory Committee Act.

The Lawyers’ Committee also raised concerns about a July 26 letter from the commission’s vice chair, Kansas Secretary of State Kris Kobach. 

Kobach had assured states in this letter that the commission will maintain the data in a secure fashion and will destroy it after the commission finishes its work. Of concern to the Lawyers’ Committee was Kobach’s claim that the commission will only make public its analysis of the data.

“The commission’s statistical analysis could have significant consequences for voting rights in this country, and therefore it is imperative that the public’s right to the commission’s records, as required by FACA, be fully enforced by the time the commission announces the results,” its reply brief states.

Kobach has said he intends to analyze the data with Interstate Crosscheck,  a system that researchers from Stanford, Harvard, the University of Pennsylvania and Microsoft have found is woefully inaccurate and teeming with false positives.

In a January report, the researchers found that purging of voter records with Crosscheck “would eliminate about 200 registrations used to cast legitimate votes for every one registration used to cast a double vote.”

Citing the study in its reply brief, the Lawyers’ Committee says this makes disclosure of the commission’s records all the more urgent.

“These inaccuracies render it particularly disturbing that the Commission intends to shield its analysis from public scrutiny and verification, and make the timely compliance with FACA’s disclosure requirements of the utmost significance,” the brief says.

John Freedman, an attorney for the Lawyers’ grop with Arnold & Porter Kay Scholer, told the court Wednesday morning that a Vaughn index is a good way to go.

Warning that the commission could omit records like emails sent and received using personal accounts, however, Freedman said the Vaughn index should include the full range of things that could be collected according to federal law.

Kollar-Kotelly said she expects emails to be included on their list, and reiterated that she wants to see records the commission thinks shouldn’t be disclosed.

Turning toward government attorney Shapiro, Kollar-Kotelly said: “I don’t want to just get the ones you think should be released.”

Without committing to a firm date, Shapiro said she could present a Vaughn index about two weeks after the commission’s next meeting, which is scheduled for Sept. 12 in Manchester, New Hampshire.

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