Financial documents

Judge orders release of ex-acting AG Whitaker’s financial documents

The judge rejected DOJ’s bid for a categorical rule allowing secrecy for draft financial disclosures.

By JOSH GERSTEIN

A federal judge has turned down the Justice Department’s bid to keep secret several financial disclosure forms acting Attorney General Matthew Whitaker submitted before his filings were formally accepted by ethics officials.

Acting on a Freedom of Information Act suit brought by BuzzFeed, U.S. District Court Judge Trevor McFadden ruled Wednesday that the draft financial disclosures are not eligible for protection under an exemption protecting the confidentiality of policy-making debates.

"The Court is unpersuaded by DOJ’s 'deliberative process' arguments," wrote McFadden, an appointee of President Donald Trump. “Whitaker’s draft forms do not bear the mark of the deliberative process.”

McFadden noted that BuzzFeed was not seeking emails detailing the back-and-forth between Whitaker and his colleagues about the filings, but simply the forms themselves.

While the judge rejected DOJ’s bid for a categorical rule allowing secrecy for draft financial disclosures, he said he will allow the department to delete on privacy grounds any information that did not make it into the final reports because Justice officials decided Whitaker was not required to disclose it.

But any omissions by Whitaker will be evident from the drafts and any inaccurate or incomplete details that were later changed will be left in the new versions to be made public, McFadden ruled.

Whitaker was required to submit a financial disclosure soon after he became Attorney General Jeff Sessions’ chief of staff in October 2017.

However, for reasons that are unclear, Whitaker’s initial disclosure was not fully processed by Justice’s ethics personnel until about a year later, when President Donald Trump bypassed the DOJ’s usual lines of succession to name Whitaker as acting attorney general after Sessions resigned.

In a declaration filed with McFadden in the BuzzFeed suit in July, Justice ethics officer Cynthia Shaw attributed the oversight to "administrative error." Late last year, another Justice official gave a similar explanation to Senate Democrats who inquired about the delay.

In his opinion resolving the case, the judge said there are seven draft versions of Whitaker’s initial report and seven drafts of his annual report for 2017.

Shaw argued against release of the drafts, saying it would be "a disservice" to the public and would discourage candor between filers and ethics office personnel.

"Such disclosure would result in the public seeing reports that are incorrect," she wrote. "If filers believe that all iterations before finalization are going to be released, they may be less willing to work with their ethics officials to correct the report."

Whitaker, a former U.S. Attorney in Iowa, gave up his attorney general duties in February 2019 following the confirmation of Bill Barr as attorney general. Whitaker left the department a couple of weeks later.

Whitaker’s finances came under scrutiny over the $1.2 million in salary he was paid by the obscure legal ethics nonprofit Foundation for Accountability and Civic Trust between 2014 and 2017, as well as his work for a patent marketing firm that settled fraud allegations with the Federal Trade Commission last year.

Whitaker’s appointment as acting attorney general led to several legal challenges, but courts found them moot after Barr took over and ratified the department’s earlier decisions.