The internal legal battle roiling President Trump’s voter fraud commission escalated Thursday, with the Justice Department rebuffing a Democratic commissioner’s request for certain internal communications. The commissioner in turn asked a federal court to order the commission to turn the documents over.
According to court documents filed by Maine Secretary of State Matt Dunlap (D), his attorney was informed by DOJ lawyers representing the commission that internal communications documented in a separate lawsuit were not “part of the substantive or collective work of the Commission,” and thus not subject to disclosure under federal transparency laws. (A copy of the letter the DOJ sent Dunlap is included in the filings).
Dunlap is asking a federal court in Washington D.C. to impose a preliminary injunction ordering the commission to hand over the documents; to produce similar documents in the future ahead of any upcoming commission meetings; to allow Dunlap to “fully participate on an equal basis as all other commissioners”; and to block the commission from releasing a final report if the requested documents are not handed over.
The filing was the most recent step in the lawsuit Dunlap filed a week ago accusing the commission of not being “open and transparent” and alleging that some commissioners had been deprived “access to documents prepared by and viewed by other commissioners.”
Before filing the lawsuit, Dunlap on numerous occasions — both in comments to the press and written communications to the commission’s executive director — expressed his frustration with the lack of transparency. Some of his communications with the executive director, Andrew Kossack, were included in the court documents filed Thursday. In them, Kossack denied telling a fellow commissioner, Republican Indiana Secretary of State Connie Lawson, that the commission’s work was on hold while it deals with the many lawsuits against it — a claim she made to reporters last month.
Kossack also said no plans had yet been made for the commission’s next meeting despite a a fundraising email sent out by a Minnesota-based voter group claiming that it was invited to serve as a witness at a December commission meeting.
Dunlap continued to press for more information, particularly as a court filing in a separate case against the commission outlined the various communications between commissioners, staff, meeting witness and federal agencies. Dunlap questioned Kossack on how the agenda for the commission’s second meeting came together and how witnesses were chosen.
“It is clear that someone is working on something and talking to others, and I should be a part of that work and those discussions,” he said in a Nov. 1 email to Kossack.
After filing the initial legal complaint on Nov. 9, Dunlap’s attorney twice reached out to the DOJ attorneys who are representing the commission in the other lawsuit to reiterate Dunlap’s request for documents and warning that he planned to file a preliminary injunction Thursday, according to the court docs.
On Thursday morning, the DOJ attorneys responded in a letter that said “no records related to the substantive or collective advisory work of the Commission have been withheld from Secretary Dunlap or any other Commission member.”
The DOJ described the internal communications documented in the other case against the commission as “incidental” and argued that they were not subject to the Federal Advisory Committee Act.
“In sum, Secretary Dunlap has not been excluded from any Commission work or substantive, collective discussions or deliberations and there is no intention that he, or any other Commission member, be so excluded in the future. We would be happy to work with Secretary Dunlap to ensure that he feels comfortable in the future with the level of information he is receiving from the Commission,” the DOJ lawyers said.
They also promised that the commission would “not punish, retaliate, or terminate Secretary Dunlap as a Commission member for asserting his rights under FACA.”
Their assurances however were not enough to to prevent Dunlap from asking the court for the preliminary injunction.
Read the court filings below: