White House Lawyer Opposes ABA Bid to Identify Advisers Behind Trump Law Firm Executive Orders

The Justice Department on Monday filed a declaration from a White House attorney seeking to block discovery demands from the American Bar Association, arguing that the requests could “produce information identifying” senior presidential advisers involved in drafting President Donald Trump’s now “permanently enjoined” executive orders aimed at major law firms.

In a court notice, the DOJ said the Executive Office of the President “strongly object[s]” to an Aug. 3 order from U.S. District Judge Amir Ali. The judge had sought to “narrow” an ongoing discovery “impasse” between the ABA and the federal government by allowing limited identification of individuals tied to two specific document requests.

The ABA’s lawsuit seeks to probe the origins of what it calls Trump’s “unprecedented and uniquely dangerous” executive orders, which took aim at Big Law firms by threatening federal contracts and security clearances.

At the center of the fight are document requests 11 and 12. Through them, the ABA is trying to identify “all individuals who participated in the drafting, editing, publishing, review, or approval of Law Firm Orders, including who first proposed the idea, who drafted the orders, who reviewed them, and who approved them.” The group also wants the names of members of the “policy team” referenced in April by outgoing White House Press Secretary Karoline Leavitt, whom she said were “executing on [Trump’s] directive to hold Big Law accountable for their weaponization of justice and their lies.”

The DOJ countered that Ali’s directive requiring the government to “file a notice with the court identifying the names of the individuals” or else “explain the basis for the privilege” asserted to keep those names confidential runs afoul of “critical separation of powers principles” recognized by the Supreme Court in 2004 in a case involving then-Vice President Dick Cheney.

According to the Justice Department, the ruling is “problematic” because it would “force the President to assert privilege over broad requests” in a case where, the government maintains, “there is no basis for discovery at all.”

The government also emphasized that Trump’s executive orders targeting Jenner & Block, Perkins Coie, Wilmer Cutler Pickering Hale and Dorr LLP, and Susman Godfrey — the firm representing the ABA — “have already been permanently enjoined,” with the validity of those injunctions now before the D.C. Circuit on appeal.

“To the extent discovery is appropriate at all,” the Trump administration went on, “it should not proceed against the White House, per Cheney—especially not since the ABA can still avail itself of information from its own members, public sources, agency defendants (which are still producing records), and third parties (which have only just begun to produce records).”

Along with the notice, the DOJ filed a declaration from Deputy Counsel to the President Gary Lawkowski, who “formally invok[ed] the presidential communications privilege” and warned of a “chilling effect” if these names are, in fact, named.

“[T]hese individuals are senior White House advisors and their staffs who have broad and significant responsibility for investigating and formulating advice in connection with presidential decision making, including specifically on the matter at issue in the above-captioned case, and people communicating with senior White House advisors and their staffs in the furtherance of providing advice and counsel to the President regarding the same,” Lawkowski said. “The disclosure of the names of these individuals would reveal information that is inextricably intertwined with the President’s decision-making process in the matter at issue in the above-captioned case and the President’s deliberations with his advisors.”

The post White House lawyer tells judge American Bar Association can’t discover which senior advisers ‘first proposed’ Trump’s law firm executive orders first appeared on Law & Crime.