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Sunday, July 21, 2024 | Back issues
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Villanova Professor’s FOIA Fight Still Kicking

PHILADELPHIA (CN) - A federal judge said he would consider lifting the shroud protecting legal advice regarding the president's appointment power.

Deputy Assistant Attorney General John Elmwood wrote the memo in 2009, "Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding 'Pro Forma Sessions.'"

Tuan Samahon, a law professor at Villanova University School of Law, believes that the Obama administration waived this memo's privilege by referencing it after President Barack Obama appointed three people to the National Labor Relations Board in 2012 while Senate held perfunctory, so-called pro-forma legislative sessions.

Assistant Attorney General Viriginia Seitz wrote this 2012 document, which the DOJ Office of Legal Counsel published on its website. It purports to recite verbal advice that the OLC previously gave counsel to the president before Jan. 4, 2012.

The Supreme Court ultimately found Obama's recess appointments unconstitutional, but Samahon's research into the president's recess appointment power is ongoing.

He filed requests under the Freedom of Information Act for the Elwood memo and a 2004 document by Assistant Attorney General Jack Godldsmith titled "Re: Recess Appointments in the Current Recess of the Senate."

The Justice Department rejected both requests under FOIA Exemption 5, which shields privileged agency memoranda, and U.S. District Judge Joel Slomsky dismissed most of the professor's legal challenges last week.

Though Slomsky said that an affidavit on the memos from OLC Special Counsel Paul Colborn satisfied most of the DOJ's privilege claims, the court found that Colborn's affidavit fell short of defending the DOJ's failure to segregate any nonexempt facts from exempt material in the Elwood memo.

Colborn's "description does not permit the court to determine whether there are segregable facts not covered by the deliberative process privilege that must be disclosed."

Judge Slomsky thus ordered the DOJ to turn over the Elwood memo for in camera inspection.

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