Written by Tom Fitton
JW Makes Case in Key Court in High Stakes Battle over Obama White House Visitor Logs
Nearly three years after Judicial Watch first filed a lawsuit trying to get hold of Obama White House visitor logs, we are still in court battling for their release.
This week, our attorney Jim Peterson went before the U.S. Court of Appeals for the District of Columbia to make our case. As summarized by Bloomberg:
The names of people vetted by the U.S. Secret Service for White House visits are agency records that must be made public, a lawyer for Judicial Watch Inc. told a federal appeals court in Washington.
Photo by Matt H. Wade
Judicial Watch, a Washington-based legal activist organization, asked a three-judge panel of the U.S. Court of Appeals today to uphold a district judge’s order requiring the Secret Service to process its request for the names of people who visited the White House during the first nine months of President Barack Obama’s term under the Freedom of Information Act.
“This is a routine case,” James Peterson, a lawyer for Judicial Watch, said during the argument. “This is a FOIA request to an agency.”
It’s been a while since I’ve talked about this lawsuit, so let’s just take a moment to review how we ended up in the appellate court, because this has been one wild ride.
You may recall that, with great fanfare, the Obama White House announced in September 2009 that from that moment forward it would “voluntarily” release certain select White House visitor logs to the public. White House officials called this a landmark victory for transparency. We called it a publicity stunt.
After all, can it truly be considered transparency if the White House gets to pick and choose which visitor logs the public can see and which can be kept secret without explanation, justification or judicial oversight? And then there was the matter of the approximately 500,000 visitor logs from the first nine months of the Obama presidency that were kept under tight lock and key (and remain so to this day).
Judicial Watch fired off a request under the Freedom of Information Act (FOIA) to obtain these records and the request was denied. But this time, rather than citing exemptions to FOIA as the reason why they would not be released, the Obama White House argued that the visitor logs – in total – are not Secret Service agency records, therefore they are not even subject to FOIA law!
Judicial Watch is not one to stand by in the face of lawless secrecy by any administration. Just like we did with the Bush administration, when we obtained the visitor logs detailing convicted felon and lobbyist Jack Abramoff’s visits to the Bush White House, we went public with our criticisms of the Obama White House.
And that’s when the battle over the logs took an interesting turn. As I wrote recently in the Pittsburgh Tribune-Review:
In October 2009, one of our investigators received a call from a White House lawyer who wanted to express some concern about the accuracy of our press statement. He invited us to a meeting at the White House.
I am convinced that the White House thought we’d be intimidated by getting such a phone call, although we saw through the tactic and happily accepted the invitation. On Oct. 21, 2009, my Judicial Watch colleagues and I met with senior White House officials led by Norm Eisen. [Eisen was then-Special Counsel to the President for Ethics and Government or, more accurately, Obama’s “Ethics Czar.”] During the meeting, Eisen offered to make some superficial accommodations to us on the visitor logs issue and encouraged us to publicly praise the Obama administration’s commitment to transparency. We were told that the White House would praise us in return.
We shook hands at the end of the meeting, but the Obama White House refused to abandon its legally indefensible contention that the visitors logs are not subject to FOIA.
We weren’t fooled, intimidated, or bought off, and we sued the Obama administration on December 7, 2009.
Our position, as articulated in our original complaint, is simple: The United States Secret Service maintains White House visitor logs. And because the Secret Service is a federal agency, the records must be subject to disclosure under the FOIA. As JW pointed out in its original lawsuit, the Obama administration’s claim that the visitor logs are not agency records “has been litigated and rejected repeatedly” by the courts.
Fortunately, our legal argument found favor in the federal courts. In a historic victory for Judicial Watch and an embarrassing defeat for the Obama administration, a federal court ruled last August that Secret Service White House visitor logs are indeed agency records that are subject to disclosure under FOIA!
You can read federal Judge Beryl Howell’s point by point refutation of the Obama administration’s arguments here. But ultimately, Judge Howell concluded that “the proper course of action by the Secret Service is duly to process [Judicial Watch’s] FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA exemptions for all records it seeks to withhold.”
In other words, release or explain.
The Obama White House chose another path. They appealed the ruling and here we are in the U.S. Court of Appeals.
I want to congratulate our legal team for all of their hard work and persistence over these visitor logs. This has been a three-year battle against an Obama White House that has massive resources at its disposal and our team has been more than equal to the task. The rule of law is on our side, and we hope the appellate court will uphold the lower court’s decision and that the visitor logs will be released, finally, pursuant to the law – not this or any other president’s whimsy.
In the meantime, please remember that Justice Department lawyers from the “most transparent administration in history” were in court this week arguing to obstruct public access to the logs of White House visitors.
Following an investigation that has lasted for a year-and-a-half, the Office of Inspector General (IG) of the Department of Justice (DOJ) finally released its report on Fast and Furious, the Obama administration’s gun-walking program which led to the death of Border Patrol Agent Brian Terry and countless Mexican citizens.
Labeling Operation Fast and Furious “a risky strategy” that failed to “adequately take into account the significant danger to public safety that it created” the IG recommended that disciplinary action be taken against as many as 14 DOJ officials. Attorney General Holder, of course, is not among them.
A bombshell report released Wednesday on Operation Fast and Furious faulted a range of federal agencies for the failed anti-gunrunning program and accused officials in charge of a “disregard” for public safety. In the wake of the report, one Justice Department official resigned.
The sprawling report by the department’s inspector general is the most comprehensive account yet on the deadly operation which allowed weapons to “walk” across the U.S.-Mexico border and resulted in hundreds of firearms turning up at crime scenes in both countries.
The report says Attorney General Eric Holder was not made aware of potential flaws in the program until February of last year. But the report cites 14 other department employees — including Criminal Division head Lanny Breuer — for potential wrongdoing, recommending the department consider disciplinary action against them.
(CNN notes: “Within minutes of the report’s release, Justice announced that former acting ATF chief Kenneth Melson was retiring and another official, Deputy Assistant Attorney General Jason Weinstein, had resigned.”)
Now the spin from the liberal media, of course, is that the report clears Eric Holder of wrongdoing. He didn’t know until February 2011, so says the report. So case closed, right?
Not so fast.
Few seriously advanced the argument that Holder knew from the get-go about Fast and Furious. The report does confirm that Holder’s top deputies knew the awful detail of Fast and Furious’ ties to Terry’s death, but the report found no evidence that Holder was told at the time. Assuming that the protestations of Holder’s ignorance are credible, the report’s conclusions are no “exoneration” of Holder (or, for that matter, Obama.)
To remind you of Holder’s current problem: he is refusing to turn over documents in response to congressional subpoenas (which led to a historic contempt of Congress citation), he stonewalled the release of records, and, as noted by The Daily Caller’s Matthew Boyle, the report appears to confirm that Holder lied under oath:
Arizona Republican Rep. Ben Quayle told The Daily Caller that Attorney General Eric Holder gave him false testimony under oath about Operation Fast and Furious wiretap application documents during a June 7 House Judiciary Committee hearing.
Quayle said the Department of Justice’s inspector general report proves that Holder lied to him while under oath during the hearing.
“I saw earlier that Holder is basically doing a victory dance and that he thinks this [inspector general] report exonerates him and there was no dishonesty with Congress — that’s just a blatant lie,” Quayle said in a phone interview. “I mean, he lied to me — to my face — during questioning, saying they had reviewed the wiretap applications after the fact and claiming that there was no reference to gunwalking, which is blatantly false.”
There’s also the matter of the DOJ’s February 4, 2011, letter to Congress saying that the allegations regarding Fast and Furious were false. It took the DOJ 10 months to rescind a letter they (including Attorney General Holder) knew or should have known was inaccurate and misleading.
And there is also the utter incompetence. If this report says nothing else, it is most certainly a stunning indictment of Eric Holder’s management abilities. We’re talking about his top deputies who are excoriated in this report. These are high ranking officials, who, presumably in some cases, were hand-picked by Eric Holder himself. He is responsible for hiring them and for supervising them. That’s at least how it works in virtually every sector of society outside of Washington, DC.
Senator Charles Grassley (R-IA), who was one of the leading congressional investigators probing Fast and Furious emphasized the point:
“Operation Fast and Furious was the height of irresponsibility on the part of a number of people from the ATF Phoenix field office all the way up to the Justice Department headquarters.
“We still don’t know the full extent of any White House involvement because they refused to be transparent and provide documents requested by the Inspector General.
“It’s clear that both the ATF and the Justice Department failed to provide meaningful oversight of Operation Fast and Furious.”
Meanwhile, the House Committee on Oversight and Government Reform, headed by Rep. Darrel Issa (R-CA), has posted its summary of the key highlights from the report as it pertains to corruption and incompetence at the Holder Justice Department.
Eric Holder may try to declare victory after the release of this report. But this is not over folks. Judicial Watch, for its part, has a number of investigations and lawsuits ongoing over Fast and Furious. In fact, as I told you last week, we’re in court trying to get our hands on the records kept shielded from Congress by President Obama’s inappropriate invocation of Executive Privilege. What we know about Fast and Furious is shocking and disturbing for sure. But it’s what we don’t know that worries me most.
The IG also confirmed this week that Congress has been refused documents that are pertinent to evaluating Fast and Furious and that the White House itself refused to cooperate with the investigation. (We have another lawsuit about that very issue.)
And Obama himself is still defending his administration’s obsession with blaming American guns and the U.S. Constitution for Mexican drug violence. Obama falsely blamed George W. Bush for Fast and Furious, and said during a town hall with Univision:
And this issue of guns flowing south is a hard issue to solve. Because this country respects the Second Amendment; we want to protect the rights of gun owners and those who are seeking to purchase firearms. But oftentimes that’s exploited as well. And so we’ve got to make sure that we’re properly balancing the rights of U.S. citizens, but making sure that we’re also interdicting those arms that would get into the hands of criminals.
The Obama administration sent guns down to Mexico. Hundreds were killed, including Brian Terry – no wonder it is a “hard issue to solve”!
Obama continues to defend his pliant attorney general, Eric Holder. And he continues to protect him by improperly withholding information from the American people.
So don’t believe those who tell you that Fast and Furious doesn’t implicate Obama or Holder directly. They own the scandal as surely as Nixon owned Watergate.
Judicial Watch continues to push forward with its 2012 Election Integrity Project. If you’ve been reading this space over the last few weeks you know that JW is active in states across the country in helping to make certain that voter registration lists are accurate, in accordance with the rule of law. And this effort has already paid dividends.
Lincoln County, West Virginia, for example, immediately initiated an effort to clean up its lists following a warning letter from JW.
Judicial Watch also prompted the State of Florida to clean up its voter registration lists, and now is in court to try to help the state beat back a challenge from the Obama Justice Department, which has objected to this critical election integrity initiative. Now the state has been granted access to a federal database to help clean its voter lists of ineligible non-citizens, including illegal aliens.
And following up on a lawsuit against the state of Indiana over its dirty voter registration lists, Judicial Watch, in partnership with True the Vote, sued election officials in Ohio as well. And this lawsuit’s increased pressure forced Ohio Secretary of State John Husted to take action.
As reported by The Columbus Dispatch on September 16, 2012:
In a Feb. 10 letter, he asked U.S. Attorney General Eric Holder for a personal meeting to discuss how to balance seemingly conflicting federal laws so he could pare Ohio’s dirty voter list without removing truly eligible voters.
“Common sense says that the odds of voter fraud increase the longer these ineligible voters are allowed to populate our rolls,” Husted said. “I simply cannot accept that.”
Holder’s office has never replied.
When contacted last week by The Columbus Dispatch about Husted’s letter, a U.S. Department of Justice spokesman who did not wish to be identified by name said, “The department declines comment.”
When asked to at least confirm whether anyone from Holder’s agency responded to Husted’s inquiry, the answer was, “No comment.”
“As Ohio’s chief elections official, it is my responsibility to ensure the votes of every eligible voter are counted and ensure the integrity and accuracy of the results,” Husted said when he mailed the letter. “This is a difficult task when federal regulations limit Ohio’s ability to remove ineligible names, thereby increasing the chance for voter fraud.”
The Columbus Dispatch notes that “Husted’s letter came just four days after he was questioned about Ohio’s bulging voter rolls by Judicial Watch…” Husted is wrong, by the way, about it being a “difficult” task to remove ineligible names. Many states and localities have little problem running programs to help maintain accurate voting lists.
Based upon an analysis of U.S. Census and other data, Judicial Watch found that the number of persons listed on voter registration rolls in three counties in the State of Ohio exceeded 100% of the total voting age population. (Judicial Watch also noted that 31 other Ohio counties with registration rolls that contain between 90% and 100% of total voting age population.) Typically, only 71% of eligible voters register to vote.
Ohio is not alone. According to a Judicial Watch investigation, voter rolls in the following states appear to contain the names of individuals who are ineligible to vote: Mississippi, Iowa, Indiana, Missouri, Texas, Ohio, Pennsylvania, West Virginia, Florida, Alabama, California, and Colorado.
A recent article in the New York Post makes the point that we’ve been telling the country: “Current voter-registration systems are flawed, with huge numbers of dead or disqualified voters still on the rolls. And, since voter-ID enforcement is poor, in many places a person can simply claim to be one of those people and vote in their name with no one the wiser.”
In short, dirty lists can equal dirty election results. And this cannot be tolerated, given the important role clean elections play in the proper functioning of our democracy. Again, The Columbus Dispatch: “In a close presidential election where every vote might count, which ones to count might become paramount on Election Day — and in possible legal battles afterward.”
It is typical that the Obama Justice Department has not only failed to offer guidance to state election officials concerning how to keep voter registration lists clean, but also actively attacks states that try to impose election integrity measures.
Speaking of legal battles over election fraud, the Pennsylvania Supreme Court issued what can perhaps best be called a “split decision” this week over the state’s voter ID law. (JW has been active in this fight, filing an amicus curiae brief with the state’s High Court defending the law.) The Pennsylvania Supreme Court refused to strike down the law, but sent it back to the Commonwealth court for review. While it appears that the High Court is prepared to authorize a voter ID law in some form, the lower court must ensure that eligible voters are not disenfranchised.
The good (potentially great) news is that a voter ID law in Pennsylvania seems a near-certainty. The bad news is that it might not be implemented in time for the 2012 elections.
Rest assured as we close in on Election Day 2012, Judicial Watch will continue to fight for free, fair and clean elections nationwide and oppose any attempt by the Obama campaign (or the Romney campaign, for that matter) to undermine election integrity.
Until next week…