Vets Can Sue Over Off-the-Books Trump Advisory Council

The D.C. Circuit revived claims that a secret advisory council for the Department of Veterans Affairs operating out of the former president’s golf club ran afoul of federal law.

Mar-a-Lago in Palm Beach, Fla., is seen on Jan. 18, 2021. (Greg Lovett/The Palm Beach Post via AP)

WASHINGTON (CN) —  Crediting evidence that former President Donald Trump let his golf club cronies form an unregistered advisory council for the Department of Veterans Affairs, the D.C. Circuit gave the green light for discovery Tuesday.

“Even though the council is no longer meeting, this case presents a live controversy because VoteVets seeks documents from the council,” U.S. Circuit Judge Cornelia Pillard wrote for a three-judge panel.

The political action committee VoteVets Action Fund sued over what it calls the Mar-a-Lago Council in 2018, tying its creation to Trump’s private resort in Palm Beach, Florida. Though the Mar-a-Lago Council was not included on the VA’s online list of 28 advisory committees, VoteVets says three members of Mar-a-Lago met at the club several times for two years to brainstorm about ways to reform the department.

In a statement in 2018 to ProPublica, Marvel Entertainment CEO Ike Perlmutter, attorney Marck Sherman and Palm Beach doctor Bruce Moskowitz essentially admitted the committee’s existence. The trio insisted that their “assistance” is not secret, however, and downplayed their influence on the VA, saying they did no more than share their thoughts with the agency.

VoteVets meanwhile traced the start of the committee to January 2017 news conference after the inauguration when Trump said that Perlmutter and others would help straighten out the agency. Pointing to various documents obtained through the Freedom of Information Act, ProPublica said the evidence is incontrovertible that the men operated as a group.

Represented by attorneys at Democracy Forward Foundation, the political action committee sued under the Federal Advisory Committee Act, which compels transparency from the ad hoc bodies established to counsel policymakers. “We are delighted with today’s appeals court ruling and proud of our work to hold the Trump administration accountable,” attorney Karianne Jones of the Democracy Forward Foundation said in a statement Tuesday.

A federal judge dismissed the case in 2019, but the Obama-appointed Judge Pillard noted Tuesday that there the case implicates certain matters that must be resolved “through discovery and summary judgment or trial.”

“We do not decide whether a committee that goes beyond working under the federal government’s management or control, and instead controls the agency it advises, is ‘utilized’ by the government within the meaning of FACA, and it appears that no other court has addressed the issue,” the 15-page ruling states.

Because the advocacy group was established by Trump and the Department of Veterans Affairs to advise the agency, Veto Vets says it should have been regulated under the federal advisory committee regulations. Such regulation never occurred, however.

VoteVets says there is very little public trace of the committee’s activities, including more than 20 meetings — some of which occurred at Mar-a-Lago with high-level agency officials — because the Trump administration failed to announce the creation of the committee or make details about its activities public.

Back in 2019, the District Court dismissed VoteVets’ suit on the basis that it failed to allege that the council had the kind of structure that a committee controlled by FACA would have. It also said VoteVets had not proved that Trump’s council was “established” or “utilized” by the federal government. 

But the D.C. Circuit found sufficient facts to survive a motion to dismiss.

“We accept that, shortly after the President-elect announced in January 2017 his intent to set up a group of healthcare business leaders to advise the Department of Veterans Affairs, such a group was established at governmental behest,” Pillard wrote.

Representatives for the Department of Justice did not return a request for comment Tuesday.

U.S. Circuit Judge Robert Wilkins, an Obama appointee, also participated in the Tuesday decision. Former U.S. Circuit Judge Merrick Garland rounded out the panel at the time this case was argued in November, but the Clinton appointee did not participate in the final disposition of the case. Earlier this month, the Senate confirmed Garland as President Joe Biden’s attorney general.

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