DOJ and Manhattan Federal Court begin to put the fix in second FOIA Lawsuit

In January, the publisher of Progress Queens filed a lawsuit against the U.S. Department of Justice under the Freedom of Information Act, seeking records about the speeches of U.S. Attorney Preet Bharara. On the day when the lawsuit was filed, 03 January 2017, a courtesy copy of the Complaint was provided to the press office of the U.S. Attorney's Office, the law office that will be defending the DOJ. Even though the office of attorneys for the DOJ had a copy of the complaint from that day then, the DOJ's attorneys requested a three-week extension of time to file an Answer to the Complaint originally due on 27 February. Though the request was opposed by Progress Queens, U.S. District Court Judge Laura Taylor Swain approved the Government's request without explanation. The approval was made on behalf of U.S. District Court Judge John Koeltl, who is assigned to the FOIA Lawsuit, and the Court's approval was issued after 5 p.m. on Friday on the business day before the Government's original deadline to file its Answer.

The Government's extension was ostensibly requested, because Assistant U.S Attorney Rebecca Tinio had to take a leave of absence due to a family emergency. The Government filed its request for an extension of time two business days before the deadline to file its Answer, timing that was suspect, because the DOJ is a highly bureaucratic agency. Typically, legal work is drafted in advance of deadlines, and attorneys seek approval from section or agency heads before the filing of pleadings are made. Even though the publisher of Progress Queens objected to the request for an extension based on the fact that a draft Answer was probably awaiting final approval for filing, the Court refused to consider the argument. Even though the Complaint in this FOIA Lawsuit was comprised of 58 short paragraphs, Assistant U.S. Attorney Andrew Krause complained to the Court that the U.S. Attorney's Office was unable to timely file its Answer. Thus, the Government has begun its defense of the FOIA Lawsuit by refusing to comply with deadlines set by civil procedure -- in addition to its refusal to comply with FOIA.

In prior FOIA litigation between the parties, the DOJ engaged in misconduct, including altering documents, submitting altered documents into the Court record, destroying the request file for a FOIA Request, and refusing to admit that a copy of the FOIA Request that was destroyed existed with the records of Assistant U.S. Attorney Angela George, a Federal prosecutor in the District of Columbia. Even though such misconduct was objected to by Progress Queens, the U.S. District Court in Brooklyn, which oversaw the First FOIA Lawsuit, refused to consider any misconduct by the DOJ's attorneys in rendering its Orders, recommendations, and decisions. Seemingly, "the fix was in."

The DOJ is expected to engage in similar or worse misconduct is its defense against the Second FOIA Lawsuit filed by Progress Queens. Already, the Government's attorneys refuse to engage in any settlement discussions of the Second FOIA Lawsuit that would include adopting FOIA reforms, and the Government's posturing suggests that it will again argue that the DOJ can comply with FOIA at is sole discretion, as the DOJ argued in Court proceedings during the First FOIA Lawsuit.

"Normies" are unable to understand what it means when corruption-fighting U.S. Attorney Preet Bharara refuses to comply with the Freedom of Information Act.  Source : Twitter/Fair Use

"Normies" are unable to understand what it means when corruption-fighting U.S. Attorney Preet Bharara refuses to comply with the Freedom of Information Act.  Source : Twitter/Fair Use

What is most disturbing about the DOJ's pattern and practise of violating FOIA is that this misconduct is endorsed and defended by U.S. Attorney Bharara, who heads the U.S. Attorney's Office in Manhattan and who has created a super hero reputation for himself as leading the charge to bring reform and accountability to Government. The star-spangled man with a plan, who is fighting for Government accountability, doesn't believe that the basic tenants of transparency called for in FOIA should apply to him. U.S. Attorney Bharara is believed to be wagering that he can count on his reputation as a self-styled corruption-fighter to confuse the public into a state of dissonance over this refusal to comply with FOIA. Already, some "normies" have expressed confusion over U.S. Attorney Bharara's refusal to comply with FOIA.

As noted in 2016 by the Freedom of the Press Foundation, the Obama DOJ lobbied to kill improvements to FOIA. Whilst criticism of lobbying to kill improvements to FOIA could be blamed on Washington bureaucrats in the Obama administration, the particular opposition to be faced by Progress Queens in the Second FOIA Lawsuit will originate from the Executive Office for United States Attorneys and from U.S. Attorney Bharara himself. Even though U.S. Attorney Bharara has a personal interest in what records the DOJ ultimately produces in the Second FOIA Lawsuit, it is not known whether U.S. Attorney Bharara has considered recusing himself from supervising the Government's attorneys, who are litigating the FOIA Request over records of his speeches -- another troubling sign that he may be counting on normies being unable to understand how, on one hand, he advocates for ethics reforms, but, on the other, he does not believe that ethics rules should apply to himself.

In protest of the Court's unexplained Order to grant the DOJ a three-week extension of time to file its Answer, the publisher of Progress Queens will begin a liquids-only fast on Monday, 27 February, until the DOJ files its Answer. Taking inspiration from Mohandas Gandhi, who incorporated fasting into his life's political work, the publisher of Progress Queens hopes U.S. Attorney Bharara, whose family originates in India, will respond to the fast by complying with FOIA.

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