WHAT'S BEHIND THE CURTAIN, CHAD?

 

 

Last month, under the title "A Wolf in Trump's Clothing," I reported on the outrageous conduct of Trump's Acting Secretary of the Department of Homeland Security, Chad Wolf. In particular, I discussed Wolf's decision to disqualify all New York residents from the federal government's Trusted Travelers Programs  (think Global Entry, and the TSA security line at the airport.) Wolf did that because, he told the press, New York State was the only jurisdiction that failed to report to the feds the details of all of its residents who had state drivers' licenses. And that, Wolf said, interfered with the nation's fight against terrorism.

 

The real issue, of course, was that Trump and Wolf considered New York "a sanctuary state" because it refused to  reveal to DHS the details of its undocumented licensed drivers.

 

Governor Cuomo labeled  the DHS action as "political" and "criminal." He sued Wolf in federal court. In that litigation, Wolf's agency again defended its decision by asserting, this time in sworn statements, that New York State was the only jurisdiction in the country that denied drivers' license information to the Department of Homeland Security. New York's action, DHS told the court, was "unique" and denied the federal government the ability to make an adequate risk assessment as to which New York residents were terrorists and which were not. It was all a matter of national security.

 

Given New York's unique refusal to cooperate with the federal law-enforcement officers on this issue, the government moved for summary judgment before District Judge Jesse Furman. But before the motion came on to be heard, a remarkable thing happened: the US Attorneys office informed the court that the Department of Homeland Security wished to withdraw its defense of the New York State lawsuit.  "Newly discovered facts" revealed that the government's sworn statements submitted to the court were false! Indeed, the "newly discovered facts" were so material that they undermined the very rationale for the DHS decision to ban New Yorkers from the Trusted Traveler programs in the first place!

 

Furman was pissed. (Caution: my language choice, not His Honor's!) He ordered the government to submit sworn declarations explaining how false and misleading statements had come to be submitted to the court. He said he wanted new sworn declarations containing the gritty details: the specifics of each false statement, who said what, to whom, when where, why, etc., etc.

 

The government has now complied -- in a manner of speaking. Its submission consists of an extraordinary set of "hide and seek" documents.

 

Chad Wolf's designated spear-catcher on this very bad day in federal court was one Pete R. Acosta, the director of Homeland Security's Trusted Travelers programs. In his new sworn statement, Acosta clings to the assertion that DHS originally banned New York citizens from Trusted Traveler programs because withholding drivers' license information was a threat to national security. He said it was necessary for the federal government to learn whether or not drivers had traffic violations on their record! He did not explain how a stop-sign violation could help the government determine whether the driver was a terrorist.

 

In his original statement, Acosta had sworn that New York State was the only jurisdiction that denied drivers' license information to the federal government. That singularity, that uniqueness, he swore, was the central justification for the ban on all New York State residents from the TT programs.

 

But the "newly discovered facts'' reveal that New York was not unique. At the time of the ban, New York was not the only jurisdiction that refused to share drivers' license information with the Department of Homeland Security. The "newly discovered facts" revealed that 10 other jurisdictions also refused to share drivers' license information with the federal government.

 

This leads, naturally enough, to interesting questions: 

Before Acosta made the false declaration about New York's uniqueness, what efforts did he make to ascertain whether his sworn statement was true? Did he really believe what he said under oath, or was he just following orders?

 

Or did Acosta just make an honest mistake? Is that believable? He simply overlooked 10 other jurisdictions who were doing the same thing New York State was doing? That's 20% of the nation! And one of those jurisdictions is Acosta's home base, Washington D.C.!

 

Perhaps Judge Furman now knows the answer to some of these questions, but the public does not. While the new government declarations were indeed filed with the court, and if you had the right computer tool you could pull them up on your home computer, you still wouldn't know the truth. Why? Because the government chose to redact key portions of its submission from the copy it allowed the public to see! And it has asked the judge to approve that decision.

 

The government's claim of right to deprive the public of the facts is contained in a remarkable introductory letter written to Judge Furman by an Assistant US Attorney. The AUSA wrote:

 

"Most of the material redacted by the governments' public filings are protected by the attorney-client privilege, the law enforcement privilege, the deliberative-process privilege, and the work-product protection."  

 

Clearly, the AUSA who wrote that letter got an "A" in Kitchen Sink Lawyering 101.

 

While the government acknowledges that there exists "a presumption of public access" to its submission , it nevertheless suggests that the curtain of kitchen-sink privileges is broad enough to keep the public from seeing what the government has done, and why it has done it.

 

As a result, all of the "good stuff" in the recently filed Acosta declaration is missing. At one point there are almost four solid pages of just plain black. Nowhere is there a discernable believable explanation as to how Acosta could have sworn that New York was the only jurisdiction to deny drivers' license information to the federal government when there were ten other jurisdictions that were doing exactly what New York was doing. And again, one of those ten other jurisdictions was the DHS's home town, the District of Columbia!

 

That leaves us with a number of important questions:

 

Will Judge Furman tolerate the redactions? Will he agree that all of these asserted privileges overcome the public's right to know what the federal government has done?

 

Is this the end of the investigation? Will Furman want to know more?

Was Governor Cuomo correct in labelling DHS's action "political" and "criminal"?

 

New York State has demanded an injunction and counsel fees. The parties are negotiating these issues. Will they reach agreement?

 

If not, will Judge Furman grant New York State the right to take depositions of the DHS leadership? What lawyer wouldn't pay a fee for the opportunity to cross-examine Chad Wolf?

 

Given that Trump has just sent Wolf's name to the Senate, nominating him as the real Secretary of DHS, will the Democrats  get to cross-examine him? Or the House, which has just subpoenaed him? 

Will DHS's deceptions in this case be publicly explored?

 

The parties are obliged to report to Judge Furman in mid-September whether they have reached agreement on the counsel fee and injunction issues. If they fail, there is still some time before November 3 for the court to order discovery and let some sunshine disinfect this bit of the Trumpian swamp.

 

A bientot.

 

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