Major Blow to JFK Records Act

[James DiEugenio]

I am not a lawyer, but I have been in court several times, since in California everyone sues everybody else over anything.  (When I lived in Pennsylvania for almost thirty years, i was never once in court.) 

Judges like it when you can present a case the first time around in a complaint with precedents and proper authorities and every legal claim spelled out.

It tells them that you are in control and you understand what you are doing and where you are going.

[Roger Odisio]

19 hours ago, Andrew Iler said:

@Roger Odisio, 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 assume the quote you cite is Bill's explanation as to why the arguments about the limitation to Biden's authority were not made in MFF's original filing on Oct. 19, 2022.

 

It's true I can' fined them there.  But there is this: a list of records MFF says warrant a new search by NARA, includes "Missing Church Committee Records" (p.27) That at least opened the door to a consideration of non-executive branch records.

 

Nine months later, in his first decision issued July 14, 2023, Judge Seeborg sided with MFF on the issue.:  "Defendants motion to dismiss is granted except as to the portion of Count 4 relating to release of legislative branch records". Earlier in the decision he offered a page length explanation of his decision including his reasoning and cites. "the President's authority claimed for the postponements seems limited to records originated by the executive branch."

 

It is Seeborg's best work.

 

So Bill's explanation must have been accepted at least to the extent that Seeborg ruled on it.

 

The issue was likely discussed somewhere in the blizzard of paper that passed back and forth between the original filing and Seeborg's first decision.  But where?

 

My files on that period are in a bit of disarray, and I'm not sure I have everything. But I did find this after a quick search.  In MFF's March 7, 2023 filing, "Plaintiff's Opposition to Motion to Dismiss, we find this assertion in a list of claims against Biden:  "7. President Biden has no right to withhold legislative branch records" (p.23)

 

That in itself, with some explanation, should have led Seeborg to rule on the issue.

 

I suspect the issue was discussed more fully elsewhere.  Is it important to know exactly where?

 

The importance of all of this is, besides getting access to legislative records, is it underlies the argument that all nonexecutive branch records, including those held by non-governmental entities as the definition of "record" by the ARRB requires, must be made available to the public in order to satisfy 12 (b)

[Andrew Iler]

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?

[Andrew Iler]

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 Odisio]

1 hour ago, Andrew Iler said:

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?

I sense this is prelude to another question, but yes, Section 6, the grounds for postponement, is obviously important to the Act.

But all such important points fall on deaf ears as long as Judge Seeborg sticks with his absurd claim that Congress intended for all searches and releases of JFK records to cease when it mandated the ARRB to close.  That NARA is not the successor in function to the ARRB, despite what NARA itself said, in this case because there is no job to do after the Board closed.

That's what Seeborg claimed in his first order.  When the MFF challenged him by pointing to 12 (b) (which he had ignored) he fell back on the claim that the ARRB and NARA were distinct, separate agencies with different tasks. IOW. he had no response

Seems clearly reversible.

 

[Andrew Iler]

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 Odisio]

21 hours ago, Andrew Iler said:

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….]

 

I have read the Gannon memo.  I discussed it on Tuesday in the thread I started "Judge Seeborg's latest decision in the MFF lawsuit" 

 

Gannon's statement in part reads "the the authority to withhold assassination records...expires on October 26, 2017".  That is just another way of saying, as the Act does, that all records should be released by then. 

 

But Gannon adds a phrase to that sentence that the release authority resides "under Section 6", He is wrong.  As you know, section 6 explains the grounds that must be shown for postponing releases, not the authority for the release itself.

 

Claiming the grounds for release also expires in 2017, allows Gannon to be used to claim that the new, less stringent postponement ground used by Trump and pushed further by Biden are legitimate.

 

It's a (crude) sleight of hand.  Under the Act, postponement grounds remain the same as the search continues after 2017 under 12(b).

 

So, yes, the Gannon memo underlies the process that allowed Trump and Biden to increasingly gut the Act.  

 

But it looks to me like Seeborg would be doing what he is doing regardless of whether there had ever been a Gannon memo. He is not relying on the bogus reasoning from that memo that Trump and Biden have used.

 

In his first decision, Seeborg eliminated Biden from the suit, claiming MFF could get everything they wanted by suing NARA.  He then claimed NARA was being wrongly sued;  neither it, nor any other agency had a role to play after the Board closed. Congress intended that the search for and release of JFK records would end when the Board was closed.  When Bill and Larry pointed to 12(b) and challenged him, he stuck with that position in his second order without further comment. 

 

It's a ludicrous position--he's out on a limb. It's reversible error. Overturning it is the key to getting much out of the suit.

 

I've also said that the deadline established by 12(b) is the real deadline Congress had in mind.

 

In my thread that I mentioned, I asked why Congress would include two deadlines in the Act: (1) 2017, and (2) when all records had been certified by the Archivist to have been released.  

 

My answer: 

"Washington politicians often set action deadlines or require periodic reports that are then ignored and recede into a dark hole.  This case was too prominent to be ignored that way, but as we have seen, the 2017 "deadline" has been easily ignored.

 

The Act was complete with just the first two deadlines:  when the ARRB was to close, and by how many years after that were all records to be released. Why do you think they added 12(b), another version of a deadline? 

 

It was to show they were serious enough about the mandate for releasing all records to root a deadline in the actual completion of the task, rather than just a date on the calendar. They gave the responsibility to determine when the job was done to NARA's Archivist, not the  President or themselves, to try to get around the political roadblocks to record release that they knew all too well." 

 

Those roadblocks have been reasserted by Trump, Biden, and now Seeborg.

 

Btw, nice work establishing NARA's role in this farce.

[Andrew Iler]

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 Odisio]

3 hours ago, Andrew Iler said:

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?

Section 6 language shows it's about the grounds necessary to postpone release records, which must remain in place until all records are released per 12 (b).  It's right in the title of the section.

Judge Seeborg has ruled Congress intended for the search and release of records to end when the ARRB closed.  No agency, including NARA, had the job after 1998 because there is no job to be done  under the Act.

Really.

[Andrew Iler]

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.  

[Robert Morrow]

On 1/19/2024 at 7:55 PM, Bill Simpich said:

The "major blow" occurred in July, 2023 when the court moved to dismiss much of the case because it ruled against our interpretation of the JFK Records Act.

Today, the case is stronger now than it was before this week's order.

The new ruling expands the case to include documents "removed" from government possession, not just "destroyed" documents.  This is one of the reasons we amended the complaint.

What it means is that we have a stronger argument for enforcement - at least one court case states that enforcement is "mandatory" when documents are removed, but not when documents are destroyed.

As to the other aspects of the case - the President was dismissed from the case six months ago.   Preliminary injunctions are very difficult to win.   

The judge made it clear in his initial ruling that he believed that the President and NARA had carte blanche to modify the JFK Act with Transparency Plans, and that NARA had few duties except in those instances where the ruling was in our favor.

In this ruling, the judge has now further stated his reasons for these findings.

We have made a very strong and complete record to challenge any aspect of the case, should we choose to do so.

We are also going forward with our claims that NARA must create the proper Identification aids so that the Collection can be easily accessed: for release of the non-executive branch records; and to recover removed and destroyed records (destroyed records can sometimes be re-constructed through various electronic means).  

We will let you know our next steps.

Bill Simpich

 

 

 

 

 

 

Keep pounding away, Bill! Carry on.

RM

[James DiEugenio]

Andrew,

Are you saying  that the MFF suit did not argue that point about the Gannon memo vs the combination of Section 6 and 12?

If so this is what I meant about having to knock out the Gannon memo.

My other point is this:  the archivist does not have the powers invested in the ARRB.  No one ever did.  I thought this was why when the CIA and FBI went in and read Trump the riot act, they could not do anything about it.

But what I think you are saying is that the combination of 6 and 12 could contravene the president.

Edited January 27 by James DiEugenio

[Paul Bacon]

5 hours ago, James DiEugenio said:

But what I think you are saying is that the combination of 6 and 12 could contravene the president.

Precisly!

[Roger Odisio]

17 hours ago, Andrew Iler said:

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. 
 

 

AI:  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.

 
RO:  All of the above is clear.

 

AI:  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. 

 

RO: Section 9(d) is titled "Presidential Authority Over Review Board Determination".  Under Section 9(d)(1), after the Review Board has made a formal determination about public disclosure or postponement of an "executive branch assassination record" (only), the President has the authority to review that determination. Should he consider postponing disclosure he must do so using the standards for postponement "set forth under Section 6".

 

Two things are clear. The President must use Section 6 "Grounds for Postponement" to postpone release, and he has authority over the disposition of only "information contained in an assassination record obtained or developed solely within the executive branch" (9)(d)(1)

 

Under 12(b), Section 6 standards for postponement remain intact as long as records remain outstanding, as you said.

 

AI:  t 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.)

 

RO: Of course.

 

AI:  Again, what is the status of section 6 under Judge Seeborg’s rulings?

 

RO: The short answer is Section 6 postponement standards never came before Seeborg for decision because he dismissed the suit against NARA on the grounds that neither NARA nor any other federal agency is the legal successor in function to the ARRB, and so have no authority to continue the job after the ARRB closed.  But he did discuss the Section 6 standards.

 

IOW, Seeborg views NARA as simply a passive repository for JFK records. The Act established the JFK Records Collection to be housed there.  But, he says, Congress intended release decisions about executive branch records to be the joint effort between the executive agencies, NARA's Archivist (somehow disembodied from NARA) and the President.  With the President having the final say.

 

All postponed records are reviewed by the executive agencies and the disembodied Archivist to make periodic release determinations.  Section 5(g)(2)(D) gives the President "substantial discretion in determining whether continuing postponement of records disclosure is appropriate".  Section 5(g)(2)(D) contains a summary of the four postponement standards detailed in Section 6.  

 

Seeborg even waives away the clear requirement in the Act that the President make his postponement determination for each record.  No, he says, Trump's and Biden's blanket assertions that all records being withheld meet the postponement standards are enough, without specifics.

 

I don't see any specific reference to Section 6 itself in Seeborg's orders.  But I think the answer to your question is that he relies on, and misuses, the Section 5 summary of those standards.

 

Seeborg's reasoning is nonsense.  It not only disembodies the Archivist from the agency she runs as one way for the judge to claim NARA has no role in the process, it ignores the clear intent of the Act which established a presumption for release after almost 30 years of hiding information, which was to be set aside only in the "rarest of circumstances" and for compelling reasons.  Instead the judge reads the Act to give one politician, the President, "substantial discretion" to make postponement decisions himself  in the face of the very evidence that drove the passage of the Act in the first place--the failure of the political system to explain the murder to the public's satisfaction.   

 

A presumption for release has become, in the judges eyes, substantial discretion for the President to decide postponement decisions as he sees fit, as long as he includes a blanket statement that all withheld records meet the Section 6 standards.  Seeborg even says the President can add other reasons, besides claiming Section 6 standards have been met, to justify his decision if he wants to.

 

AI:  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.  

 

RO: Yes.

 

[James DiEugenio]

Roger keeps on saying this:

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.  

 What were the operations of the ARRB?  They were given to the Board by congress.  On its own NARA did not have those kinds of powers. That is why Trump called for the delay and then used the Gannon memo.

 

Thanks to Paul Bacon for getting what I said.

Edited January 27 by James DiEugenio