In the alternative, Senior U.S. District Judge John D. Bates said, the Presidential Commission on Law Enforcement and the Administration of Justice can reconfigure itself to include members outside of law enforcement, hold public hearings and possibly rewrite its report, which a Justice Department official said last month was a week from completion.
The Justice Department, which has supported the commission administratively since its launch in January, did not immediately respond to a request for comment on which path it would take, or whether it would appeal. The judge previously blocked the attorney general from sending the commission’s report to the White House last month, as had been planned.
The commission was created by a Trump executive order last year at the request of police groups such as the International Association of Chiefs of Police and the Fraternal Order of Police, who wanted a broad, fresh look at ways to improve public safety. A presidential commission examining law enforcement in the mid-1960s came up with recommendations including creating a 911 emergency call number and beefing up training and research for police.
Attorney General William P. Barr stocked the commission with 18 members who all work in law enforcement, either as police, prosecutors or federal officials, and none from the defense, civil rights, academic or social work areas. When meetings began in January, none was announced in the Federal Register. The commission also did not file a charter or designate a federal officer, as required by the Federal Advisory Committee Act (FACA). The teleconferenced meetings were announced in news releases to the news media, who were able to call in and listen.
The NAACP Legal Defense and Educational Fund sued Barr and the commission in April for violating FACA. Last month, Bates granted the LDF’s motion for summary judgment, saying he was “hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.” Bates was appointed to the bench by President George W. Bush.
In issuing his remedy to the violations Monday, Bates said the commission may either come into compliance with FACA — add more diverse members, post notice of meetings, file a charter and appoint a federal officer — or it can place his disclaimer “near the beginning of the report” using “at least the same size print as the rest of the text,” and must attach his four-page order.
Bates’s disclaimer reads as follows:
Although the Commission which prepared this report was subject to the Federal Advisory Committee Act, a United States District Court judge has found that the Department of Justice and the Commission’s officers violated FACA in forming and operating the Commission. In particular, the DOJ and the Commission did not comply with FACA’s requirements to ensure the Commission’s membership is fairly balanced in terms of the points of view represented, file a charter, select a designated federal officer, or provide timely notice of meetings in the Federal Register. For additional detail, the remedial order of the United States District Court that issued this decision is attached to the Commission’s Report.
In a separate opinion, Bates wrote that “A conspicuous disclaimer on the Commission’s report will qualify that legitimacy by ensuring that everyone who views the report learns it was produced unlawfully by a nonrepresentative body.”
Natasha Merle, one of the LDF’s lead attorneys in the case, said that the LDF was satisfied with Bates’s order. “The judge is saying that the commission does not have the political legitimacy that the administration and the attorney general were going for … This commission was created to serve a political agenda and not intended to get at the serious issues the country would have benefited from.” The LDF and other groups have argued that the commission, with working groups focused on issues such as officer wellness and respect for law enforcement, was intended to reinforce a “tough on crime” outlook rather than a broader look at modern policing.
Last month, Bates halted the commission’s work pending his decision on a remedy for violating FACA. In his order Monday, he declined to issue a full “use injunction” against the commission or its report. Bates said that “courts should be especially wary of use injunctions … because ‘forbidding the President and his Cabinet to act upon advice that comes to them from any source, however irregular’ may represent an ‘affront’ to the ‘separation-of-powers’ principle,” citing a 1994 ruling on a FACA violation. He said a use injunction would be “wasteful” because the commission has already held months of hearings and spent $4 million. The judge also said he had “serious First Amendment concerns” about completely enjoining publication of the report.
Instead, the judge wrote, the LDF “can still attack those recommendations” contained in the report, “and the disclaimer will still diminish their legitimacy.”
“Anyone who reads that disclaimer,” said Miriam Krinsky, executive director of Fair and Just Prosecution, a national group of reform-minded prosecutors, “can’t help but conclude that this was a results-oriented endeavor by a nonrepresentative, one-sided commission. This decision is a victory for all proponents of a more equitable and just criminal legal system.”