AUGUSTA — A federal appeals court on Friday rejected Maine Secretary of State Matt Dunlap’s legal attempts to obtain Trump administration emails about who should serve on a now-disbanded commission on voter fraud.
Maine Secretary of State Matthew Dunlap Joe Phelan/Kennebec Journal file photo
Dunlap has successfully sued to force the Trump administration to turn over documents that he said were illegally withheld from him as a member of the short-lived Presidential Advisory Commission on Election Integrity. But on Friday, Dunlap lost one skirmish in the fight over internal emails from staff in Vice President Mike Pence’s office pertaining to additional potential members on the commission.
The U.S. Court of Appeals in Washington, D.C., ruled that Dunlap had failed to “clearly and indisputably show that the emails he seeks fell within the work of the commission.” Therefore, the court said the non-substantive emails were not subject to the same disclosure requirements that forced the Trump administration to hand over to Dunlap thousands of pages of other documents following a December 2017 court injunction.
“Private emails between executive branch officials and individuals who served as commissioners about potential additional commissioners are quite distinct from these examples of documents about the commission’s ongoing, substantive work,” states the ruling from the three-judge Court of Appeals for the District of Columbia Circuit. “The government, when contemplating whether to appeal the December 2017 preliminary injunction, could not have reasonably foreseen that the injunction extended that far.”
Dunlap was a vocal critic of the “election integrity” commission on which he served, and his opposition played a role in the Trump administration’s decision to scrap the controversial effort.
On Friday, the Democrat was among a bipartisan delegation of secretaries of state who were in Israel for a seminar on cybersecurity related to elections and records management. But in a statement, Dunlap said he believed the emails would have shown “just how preordained the whole matter was intended to be, and how damaging it would have been to American democracy.”
“This case has already disproven the president’s claims of widespread voter fraud,” Dunlap said. “Today’s court ruling is narrow, limiting only the release of discussions over who should be invited to join the now-defunct voter fraud commission.
“But the public record already shows how hard some members of the commission fought to ensure it was biased – a result I’m proud to have fought against. The fight for transparency will now continue in the trial court, where the government is still trying to block access to documents in the vice president’s office.”
President Trump created the commission on election integrity early in 2017 after making unsubstantiated claims that he lost the popular vote in 2016 only because millions of illegal ballots were cast for Hillary Clinton. The White House has never produced any evidence to support those claims, and Trump’s election integrity commission met just twice before being disbanded amid growing controversy over its purpose, membership and agenda.
The commission was controversial from the start, with some critics calling it “a sham” aimed at legitimizing attempts to limit access to the voting booth among minorities and college students. The commission also had no plans to probe what many regarded as the biggest threat to election integrity in the United States – Russian interference in the 2016 election.
Dunlap filed suit against the Trump administration in November 2017 after the second commission meeting. In his lawsuit, Dunlap claimed Pence and the commission’s vice chairman, Kansas Secretary of State Kris Kobach, were withholding information from him and other members in violation of the Federal Advisory Committee Act, which prohibits commissioners from being excluded from deliberations and information.
The commission was disbanded less than two months later after an initial court ruling in Dunlap’s favor. He persisted with the lawsuit and, in July 2018, a federal judge ordered the Trump administration to release thousands of pages of information. Dunlap subsequently made those documents public and wrote in a scathing letter to Pence and Kobach that those documents contained no evidence of widespread voter fraud, and instead revealed a “troubling bias” on behalf of the White House and Kobach.
The emails at the center of the latest court fight reportedly dealt with who should serve on the commission. According to news sources and documents that became public, several commission members who have pushed the idea of widespread voter fraud expressed opposition to the White House appointing Democrats to the group because they would likely obstruct the group’s work.
But the three-judge appellate court – headed by Chief Judge Merrick Garland, whose nomination to the Supreme Court by President Barack Obama was never taken up by the Senate – overturned a district court ruling ordering the White House to release the roughly 20 emails.
“It is undisputed that these emails were ‘made available to’ certain individuals who were commission members but not others,” the judges wrote. “But Dunlap cites no case or statute that extends the ‘work of the committee’ or its ‘deliberative process’ to conversations surrounding who should be on the commission. Indeed, his counsel concedes that he knows of no case in which a court has ordered the disclosure of materials related to the formation or membership of a federal advisory committee.”
One of the attorneys working on the case for Dunlap on a pro bono basis, Melanie Sloan of American Oversight, said the emails would have reaffirmed what is already known about the commission. American Oversight is a Washington, D.C., nonprofit that has filed more than 100 public records lawsuits against the Trump administration.
“While we are disappointed by the decision, in the process of the litigation we did obtain documents revealing that there was no evidence of voter fraud, and that the panel was a farce from the get-go, and as a result of this litigation, the commission was shut down,” Sloan said in a statement. “These documents would have further confirmed what we have already seen based on the documents we did receive.”
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