Federal Court Says Trump's Law Enforcement Commission Violates Federal Law

from the ignorance-of-the-law-still-working-out-great-for-law-enforcement dept

The "rule of law" Administration is at it again. Ignoring the rule of law by ignoring applicable laws, the Administration decided to cozy up with law enforcement agencies while pretending to be serving the public. (h/t ProPublica)

Formed by executive order, the Presidential Commission on Law Enforcement and the Administration of Justice was formed by the DOJ. The Commission promised to tackle several important issues, including the handling of mental illnesses, substance abuse, and homelessness. It would supposedly seek input from education, employment, and mental health services to tackle these problems.

More problematically, the Commission thought it needed to address this perceived "problem:"

What is the cause of diminished respect for law enforcement and the laws they enforce, and how does it affect both police and public safety?

The answer would have been immediately apparent if the Commission had asked anyone else but law enforcement agencies to participate. But it didn't. And now a federal court has found that the Administration violated federal law by forming a one-sided commission unlikely to fairly address any of the issues in front of it. Here's how the court describes the President's new Commission en route to finding it broke the law. From the opinion [PDF]:

The Attorney General stressed the need to hear from “[a] diversity of backgrounds and perspectives” such as “community organizations, civic leadership, civil rights and victim’s rights organizations, criminal defense attorneys, academia, social service organizations, and other entities that regularly interact with American law enforcement.” Despite these stated goals, however, the Commission’s membership consists entirely of current and former law enforcement officials. No Commissioner has a criminal defense, civil rights, or community organization background. And Commission proceedings have been far from transparent. Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today.

This one-sided panel does not comply with federal law. Nor does its closed-door meetings, which ignore transparency mandates. Here are the requirements of the law that governs the Administration's law enforcement commission:

Passed in 1972, FACA [Federal Advisory Committee Act] requires, among other things, that covered federal advisory committees be “fairly balanced” in the viewpoints represented, that meetings be open and publicly noticed, that a charter be prepared and filed, and that a designated federal officer be appointed to ensure compliance with FACA.

But that's not what happened. After saying some nice things about "diverse viewpoints," Attorney General Bill Barr stocked the commission with 18 former or current law enforcement officials. Barr then unilaterally decided this commission didn't need to comply with federal law.

Further, the memorandum noted, “[t]he Commission serves exclusively to advise the Attorney General and the President” and “is not intended to be subject to either the Federal Advisory Committee Act or Administrative Procedure Act.”

Another brief nod towards transparency was made by the Commission -- a nod that was made even briefer by the Commission shortly after it pretended to care about the public's opinion.

In February 2020, the Commission posted a notice on its website offering interested members of the public the opportunity to submit comments through May 31, 2020 regarding any aspect of the Commission’s work. But at some point between March 13 and March 28, the Commission shortened the comment window by two months, requiring all submissions by March 31, 2020, without posting notice in the Federal Register.

After a lengthy discussion of the government's arguments about whether or not this lawsuit can even be entertained by the court, much less FACA's applicability to its law enforcement commission, the court arrives at this conclusion:

There is no genuine dispute that the government has violated FACA’s transparency and public access requirements by holding closed hearings without timely notice in the Federal Register. And there is likewise no genuine dispute that the Commission has violated FACA’s oversight provisions by failing to file a charter for the Commission, 5 U.S.C. app. 2 § 9(c), and that Attorney General Barr has violated FACA by failing to assign a designated federal officer to the Commission to ensure compliance with FACA…

And the court says there's no dispute the composition of the Commission isn't "fairly balanced." This leads to the court's most damning assessment of the President's law enforcement committee.

The Commission’s function is to improve policing, including relations between law enforcement and the communities they protect. Yet the Commission does not include a single member who represents elements of those communities, rather than law enforcement. Thus, even employing a deferential review, the Court concludes that the Commission’s membership is not “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.

The court says nearly everything about the Commission must change. It must change its composition, supply sufficient advance notice for public comment, and otherwise comply with FACA. Until it can comply, it can't hold any more meetings. We'll see how serious the Administration is about improving the relationship between cops and communities. If the Commission decides to abide by the law and continue its work, maybe the Administration still cares about these issues. If it decides it would rather dump the Commission than comply with the law, we'll see how hollow its "rule of law" statements really are.

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Filed Under: balance, commission on law enforcement, doj, executive order, faca, law and order, law enforcement, legal issues, rule of law, william barr


Reader Comments

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  • icon
    Stephen T. Stone (profile), 5 Oct 2020 @ 10:58am

    Every accusation, a confession; every self-imposed label, a rejection.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 Oct 2020 @ 11:26am

    'What do you mean 'people don't like hypocrites'?'

    Tasked to figure out why people don't respect law enforcement, perfectly answers their own question at least in part by demonstrating yet again that they believe that 'following the law' is for other people.

    If people are increasingly losing respect for law enforcement maybe it's because there's little if anything left to respect, with their open contempt towards following the law that they are supposedly tasked to uphold part of that, along with the utter indifference towards actually listening to other points of view since that would involve acknowledging that those views exist and might, just maybe, have some valid points.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Oct 2020 @ 11:37am

    FACA [Federal Advisory Committee Act]

    Hmmm, never heard of that law.

    How many American laws are there?
    (..rounded to nearest 100,000 mark)

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 5 Oct 2020 @ 11:41am

    Tasked to figure out why people don't respect law enforcement, perfectly answers their own question at least in part by demonstrating yet again that they believe that 'following the law' is for other people.

    I think you're assuming that phrases like "follow the law", "rule of law", and "law and order" mean what they say they do.

    But, like "states' rights" and "small government", when people use those phrases they're usually just euphemisms for racism.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Oct 2020 @ 12:18pm

      'Here's what you said, and here's what you're actually doing.'

      Oh my default assumption as to their motives at this point is that they're lying, I just enjoy pointing out the gross dishonesty and hypocrisy in how(and how often) what they claim they support is in direct opposition to what they actually do.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 5 Oct 2020 @ 11:46am

    Would it be nice?

    If there were a site that all Public notices were posted by the gov?
    Not having to goto this and this, and that , and the other site??
    How much access does a nation have, if no one knows about it, let alone Being Across the nation.
    Washington DC was built to handle the First 13, not the last 37.
    Lets build a new Facility, where no one has to travel 3000 miles to get tot the center of government.
    Lets build housing for those EMPLOYED, Lock it down and see if we can get these folks to WORK FOR US, not Against US.
    These are public Servants, how did they ever get to any heights of Power that we Never gave them.
    This is an HONOR position, and the Honor is gone. They walk in getting a Salary That is Equal to over $360,000 per year(its only 6 months per year), do only 1/2 the work after that(spend more time campaigning), get Extra money to back the corps, end up with millions and more money WE DID NOT PAY THEM. Get better Benefits then most people in the Whole nation.
    Lets move Washington DC.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Oct 2020 @ 11:54am

    Were you looking for this? https://www.federalregister.gov/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Oct 2020 @ 2:07pm

      Re:

      insufficient -- add Code of Federal Regulations (CFR) and all formal judicial interpretations/precedents related to these Federal laws/regulations/rules

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 6 Oct 2020 @ 4:35pm

      Re:

      Long ago, there was a monthly book, from cities, state and fed, about contracts being offered, and asking quotes to finish.

      Military surplus has finally got allot of it together, but I think they are paying an outside company rather then GOV. agency to do it.
      Saw advert to get rid of 90,000 tons of brass, start bid was $25.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 5 Oct 2020 @ 2:33pm

    A commission investigating why people hate cops? This will go about as well as the one they ran on voter fraud, the one they shut down and refuse to disclose the findings from because the things they found weren't the politically convenient things they wanted.

    reply to this | link to this | view in chronology ]

    • icon
      BernardoVerda (profile), 5 Oct 2020 @ 3:32pm

      Re:

      I think I missed that one.
      Can someone kindly refresh my memory?

      reply to this | link to this | view in chronology ]

      • icon
        Bloof (profile), 5 Oct 2020 @ 4:20pm

        Re: Re:

        https://en.m.wikipedia.org/wiki/Presidential_Advisory_Commission_on_Election_Integrity

        Basically they set up a commission, stacked it with guys like Kobach who've built their careers on voter fraud claims and even they found nothing. They refused to release documents to the democrats involved then disbanded so they wouldn't have to publically admit there is no problem.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 5 Oct 2020 @ 4:36pm

          'Oh would you look at the time, gotta go, no documents for you'

          In November 2017, Maine Secretary of State Matthew Dunlap, a Democratic member of the commission, said that Kobach was refusing to share working documents and scheduling information with him and the other Democrats on the commission. He filed suit, and in December a federal judge ordered the commission to hand over the documents. Two weeks later, in January 2018, the Trump administration disbanded the commission, and informed Dunlap that it would not obey the court order to provide the documents because the commission no longer existed. On August 3, 2018, Dunlap wrote that the documents available to him did not support claims of widespread voter fraud. He described the investigation as the "most bizarre thing I've ever been a part of....After reading this, I see that it wasn't just a matter of investigating President Trump's claims that three to five million people voted illegally, but the goal of the commission seems to have been to validate those claims."

          In Trump's own words: 'What are they trying to hide?'

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 5 Oct 2020 @ 11:54pm

            Re: 'Oh would you look at the time, gotta go, no documents for y

            Well thankfully, like anything Trump gets his mitts on, the corruption is so blatant that it's obvious to any non-cult member who observes this. Not that it matters, Trump would still claim that the votes were illegal even if there were concrete evidence to the contrary. He couldn't possibly admit that Clinton won the popular vote by legally cast 3 million votes.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 6 Oct 2020 @ 5:44am

              Re: Re: 'Oh would you look at the time, gotta go, no documents f

              "Well thankfully, like anything Trump gets his mitts on, the corruption is so blatant that it's obvious to any non-cult member who observes this."

              I'm actually at the point by now where I can no longer tell what is more repulsive and frightening - the possibility that the Trump cult knows damn well they're following an anthropomorphic personification of narcissistic grift and do not give a single shit as long as the "right people" get hurt...or that they truly are so willfully blind and immune to factual reality they'd pitch themselves headlong from the tarpeian rock if Trump told them that'd make them fly.

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 6 Oct 2020 @ 9:05am

                Re: Re: Re: 'Oh would you look at the time, gotta go, no documen

                At this point I'm sure his cult is comprised of people from both groups, those that know he's the personification of greed, narcissism and sociopathy but support him because he allows them to openly hate The Others and cause them to suffer, and those that are stupid enough to honestly think that he's everything he claims to be.

                reply to this | link to this | view in chronology ]

                • icon
                  Scary Devil Monastery (profile), 7 Oct 2020 @ 8:11am

                  Re: Re: Re: Re: 'Oh would you look at the time, gotta go, no doc

                  ...and to think that may, by now, be an apt summary of 30% of the eligible US voters.

                  It's a good thing the US is still not fiscally in a truly crappy place, because Germany only had 12% of the voters being that particular combination of dipshit when they voted in Herr Hitler.

                  I think that's the worst thing about 'Trump. Sane and rational people realize he's too petty, short-sighted and generally small to produce the worst possible outcomes - the equivalent of a disfiguring leaky boil on the US rump so painful the nation keeps jiggling it's bare ass around in everyone's faces.

                  His presence will just leave lingering scars and a persistent absence of dignity.

                  But the GOP will eventually produce something way worse than just Trump. Maybe not in 2024 where the grab bag points to Cotton, Haley or Hawley - or even, Cthulhu help us, Carlson Tucker - but the writing's on the wall, the republicans did a Major Kong when they chose to absorb and invite Palin's populists and everything since is just fallout waiting to settle.

                  reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Oct 2020 @ 5:26pm

    When your whole theory of improving relations is about how to give police more methods and tech to beat on the populace until they respect law enforcement's behavior.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Oct 2020 @ 5:40pm

      Beating a populace into submission works but only to a point before people either stop being afraid and start being pissed off or the fear ratchets up to the point that they lash out in the belief that it's the only way to protect themselves, the 'problem' that US police are facing is that more and more people are reaching that tipping point and the police have spent so long with violence as their go-to that they are incapable and unwilling to change, doubling-down as a result and just fanning the flames.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Oct 2020 @ 11:07am

      Re:

      The beatings will continue until moral improves.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 5 Oct 2020 @ 6:31pm

    The Soviet Union didn't break up. It just moved to Trumpworld.

    reply to this | link to this | view in chronology ]

  • icon
    Razzo (profile), 5 Oct 2020 @ 7:01pm

    Beatings will continue until morale improves

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 6 Oct 2020 @ 1:14am

    If the law enforcement regards the people as the enemy...

    ...ultimately law enforcement will be recognized by the public as the enemy of the people.

    We'll try to do something within the system: abolish them, defund them.

    And when we find out that, like Minneapolis, nothing actually gets done, we'll resort to rioting, destruction and terrorism.

    So it's really in the best interest of our law enforcement departments to actually research why they're fucking up and talk to the people they enjoy so much shooting at. Because otherwise the community watch groups are going to get paramilitary, and it's going to get messy.

    And the US might have troubles of its very own.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Oct 2020 @ 4:57am

    There must be a case here

    Should Barr be charged with something? This "commission" is a perversion and a waste of money.

    reply to this | link to this | view in chronology ]


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