DACA legal advice

Judge: DACA legal advice must be made public

By TED HESSON and JOSH GERSTEIN

A federal judge in California on Tuesday ordered the Trump administration to turn over emails, letters, memos and other materials related to its decision to end the Deferred Action for Childhood Arrivals program.

The order by U.S. District Judge William Alsup, based in San Francisco, also appears to cover legal advice about winding down the program, which grants quasi-legal status and work permits to so-called Dreamers.

Acting in a series of lawsuits filed over the decision, the judge said the administration had waived its attorney-client privilege by claiming the decision was driven by concerns that the program is unconstitutional.

“Defendants argue that [the Department of Homeland Security] had to rescind DACA because it exceeded the lawful authority of the agency,” Alsup wrote. “They cannot, therefore, simultaneously refuse to disclose the legal research that led to that conclusion. Plaintiffs are entitled to challenge whether this was a reasonable legal position and thus reasonable basis for rescission. In making that challenge, plaintiffs are entitled to review the internal analyses that led up to this change in position.”

The Justice Department released a one-page opinion from Attorney General Jeff Sessions calling the program “an open-ended circumvention of immigration laws that was an unconstitutional exercise of authority by the Executive Branch.”

But Alsup said that was not enough.

“Defendants have waived attorney-client privilege over any materials that bore on whether or not DACA was an unlawful exercise of executive power and therefore should be rescinded,” the judge concluded.

In September, the acting homeland security secretary, Elaine Duke, rescinded the memo that established the DACA program, which offered a degree of protection to undocumented immigrants brought to the U.S. at a young age.

Plaintiffs in five separate lawsuits over the DACA termination — including one brought by former DHS Secretary Janet Napolitano in her new capacity as president of the University of California — have demanded that the administration hand over documents related to the decision.

On Tuesday, Alsup ordered the federal government to supply the materials that Duke used to reach her decision, as well as documents consulted by other government officials who advised her.

At the same time, the judge demanded that the administration supply all materials considered by former DHS Secretary John Kelly — now the White House chief of staff — when he decided in a February memo to leave the program intact.

Alsup, a Bill Clinton appointee, ordered the defendants to provide the information by Oct. 27.

Justice Department spokespeople did not immediately respond to a request for comment.