Andrew Iler

Well Roger, once again you are very presciently jumping the gun by raising the issue of the Archivist not being part of the lawsuit. If you are good moving onto new ground, I think it’s a good time to talk about ministerial duties. I am glad that we’ve resolved the 12(b) issues. 😁

Roger, it is really about the plain meaning of the statutory language of section 12. 12(b) is a plain and simple sunset clause for the remaining provisions of the Act that do not deal with appointments or operations of the ARRB. The legally consequential part of 12(b) however is that all provisions not pertaining to the ARRB’s appointments and operations shall continue to be operable law until the Archivist certifies that all records have been publicly disclosed. Yes, the Archivist cannot shut down the rest of the provisions of the Act and stop the release of the remaining withheld files. I understand your argument. I do not think that this is a hill for you to die upon.

Roger, this is exactly why I stated that we were “jumping the gun”. Without having closely examined the legal principles and underpinnings surrounding how the courts consider and rule on issues involving ministerial duties, it is very easy to make the mistake of conflating agencies, officials and other entities. This examination will require us to go well outside the JFK Records Act. It is not an easy path to take, but to truly understand the legal reasoning behind Judge Seeborg’s decision, it is required.

Roger, the heading of section 12 is, “Termination of Effect of Act”. If you want to argue that obliquely, section 12(b) impacts the job of releasing the records, that is fine. I do not disagree that it is an oblique element of that section. However the primary importance of section 12(b) really is the continuing operability of all other sections of the Act that do not pertain to the operations of or appointments to the ARRB, and in particular, the vitally important continuing operability of the postponement criteria of section 6.

Roger!! You are jumping the gun on me!!! It was my hope to first establish the laws around ministerial duties, so that we could frame our discussion with the legal underpinnings before applying them to the JFK Records Act. I will quickly answer your question, and then if you don’t object, I will go back and lay the legal foundation to set up our discussion about how ministerial duties might apply to the JFK Records Act. So the short answer is that section 3 of the JFK Records Act separately defines “the Archivist” and “NARA”. See below. This statutory legal distinction is important, as we will discuss in a later post. To see how the JFK Records Act imposes separate and distinct roles and duties, one only need look at section 4. See below. One must very carefully parse a statute and fully appreciate the difference between discretionary duties and ministerial duties and the very distinct officials and agencies to which those duties are mandated. But again, we are getting ahead of ourselves.

Roger, I don’t necessarily agree with this statement regarding sections 12(a)&(b). Neither subsection (a) or (b) speak to the “job of releasing records”. Those sections deal only with the termination of the various provisions of the Act. Also, not to be argumentative, I do not believe that 12(b) establishes a “deadline” for the release of records, as has been mentioned earlier. Statutorily speaking, I think what you are saying is that 12(b) establishes a final “sunset clause” for the JFK Records Act that occurs when the Archivist certifies that all of the records in the collection have been fully publicly disclosed. I am not trying to nitpick. I am just being precise with legal concepts and language, so that we are all on the same page.

Roger, neither section 12(a) or 12(b), nor any other section of the JFK Records Act uses the phrase “NARA’s Archivist”. Legally speaking, “The Assassination Records Review Board - ARRB”, “The Archivist” and “NARA - The National Archives and Records Administration” are statutorily defined distinctive legal entities, with specific and unique roles mandated pursuant to the JFK Records Act and other legislation. To try to conflate any of these entities is legally perilous, especially when attempting to subject ministerial duties to a mandamus claim or under judicial review. But this is a story for another day.

Roger, my point is more direct and has nothing to do with searching for new records. It has everything to do with the ongoing operability of section 6. I think we can agree that the Archivist has NOT certified that ALL assassination records have been released. Therefore section 12(b) mandates that all provisions of the Act not pertaining to appointments to the ARRB and ARRB operations SHALL remain in full force and effect. And I think we have established that no part of section 6 has anything to do with the ARRB’s appointments or operations. It therefore logically and legally flows that section 12(b) mandates that section 6 remains operable law. if section 6 remains operable law, to whom does it apply, if not the President? …… especially since section 9(d)(1) explicitly states that the President, in his sole and non-delegable authority is required to comply with section 6. It would seem contrary to the purposes of the Act that mandate an ongoing downgrading and declassification process set out in sections 5 and 9 to then render sections 6 and 9 inoperable and to create an entirely arbitrary and unreviewable framework, when the entire purpose of the Act is to create an enforceable and accountable process for the public disclosure of all records. (See section 2(a)(3) below.) Again, what is the status of section 6 under Judge Seeborg’s rulings? It is quite clear that Curtis Gannon’s interpretation that section 6 expired on October 26, 2017 is grossly wrong, because section 12(b) makes it clear that section 6 remains operable law.

Roger, for everyone else’s sake, let’s take a close look at section 6, just so they understand what you are talking about. Now let’s take a close look at sections 12(a) and 12(b). So how does this jive with Gannon’s and Judge Seeborg’s handling of section 6? Does any part of section 6 pertain to the operation of or appointments to the ARRB? If section 6 did not expire on October 26, 2017, then who exactly does it apply to in order for it to not be rendered superfluous?

Roger, to fully appreciate what has happened to the JFK Records Act, we have to go back to the first postponement that happened on October 26, 2017, under President Trump and how that executive decision was justified. This takes us to the memorandum authored by Curtis E. Gannon, who at the time was Acting Assistant Attorney General in the Office of Legal Counsel. A link to the Gannon Memorandum is just below. https://www.justice.gov/sites/default/files/opinions/attachments/2018/07/05/2017-10-26-temp-cert-jfk-act.pdf The most consequential component of the Gannon Memo is the following statement. “In light of section 5(g)(2)(D), the authority to withhold assassination records under section 6 expires on October 26, 2017.” A very short time following the October 26, 2017, postponement, by President Trump, I noticed that NARA had totally changed their online database and had removed the column from the old database that referenced the withholding criteria for each record that cited the specific section 6 postponement criteria. In its place, a new “Restrictions” column that cited section 5(g)(2)(D) instead of section 6 criteria. More shocking was a totally new Opening Criteria that included statements like “Approval of CIA”. I took a literal screenshot at the time I first noticed this change. The Gannon Memorandum was the initial legal basis for President Trump postponing the public disclosure of an undetermined number of unidentified assassination records, without following the mandated section 6 postponement criteria. Does Gannon’s statement quoted above ring any alarm bells for you Roger? [HINT: think about your current favorite section of the Act….]

Roger, can we agree that section 6 of the Act is probably one of the most important parts of the statute, because it mandates both the “clear and convincing” standard of proof AND the criteria for postponement that all agencies have to apply in order to lawfully justify the postponement of an assassination record? Would you agree that without section 6, the JFK Records Act would leave postponement decisions subject to completely arbitrary standards, that could be compounded by the absence of any requirement to provide written reasons to the public to justify the postponement? Without any standards being applied, or adequate written reasons given for a decision, on what basis could an aggrieved party appeal any decision? Why would Congress enact such an absurdly useless statute?

Roger, yes, you are correct!! The first mention of rhe issue of non-executive branch (“legislative”) records occurred in a response to the government’s motion to dismiss. However, despite purportedly not knowing “that a claim existed for making a claim for the legislative records until a short time before the filing of the complaint in October 2022.”, they did not include such a claim in their original complaint or their first amended complaint. This issue was not pleaded until the plaintiffs filed their second amended complaint on April 10, 2023. I wonder what “a short time” means? A month? Two months? A year? if they knew that a claim existed for the immediate release of non-executive branch records before they filed their original complaint in October 2022, why did they not include such a claim in their original complaint or in their first amended complaint? Given the clear statutory language of the Act, it would seem like a pretty easy issue to get a win on such low hanging fruit. No?

Roger, I appreciate all the work you’ve done to advance your knowledge of the JFK Records Act and to understand the rationale behind Judge Seeborg’s decisions in the case. I think you are working in the right direction and I don’t think Jim D is being critical of most of your thought processes. He is perhaps trying to help you further connect the dots to complete your understanding. Let me ask you a question. At what point did the plaintiffs first raise the issue of non-executive branch (“legislative”) records? Was it in their original Complaint?…… their First Amended Complaint? ….. their Second Amended Complaint?….. or their Third Amended Complaint? In his Declaration filed on 01/08/2024, but dated January 18, 2024 (ECF #101) Attorney Simpich stated the following….

I will try to post the Order here.

Judge Seeborg has released his decision. It does not pull many punches on the plaintiffs’ case. All claims against the President are dismissed. All of the plaintiffs’ motions for injunctive relief are dismissed. The government’s motion to dismiss the case is mostly granted, save for and except: 1) the claim for Identification Aids; 2) the claim for the release of non-executive branch records; and 3) NARA’s duty to complete missing records searches. I will be writing more about this decision in the coming weeks.