American Bar Association wonders if Trump has 'secret group of advisors' as White House is 'unwilling to engage, at all,' in discovery

After the White House resisted naming senior staffers involved in proposing, drafting, and approving Donald Trump's executive orders against law firms, the American Bar Association is wondering if the president has a "secret group of advisors" he's fighting "tooth and nail" to hide.

The 10-page response from the ABA began by noting the White House is "not immune from discovery—even allegedly privileged discovery, where there is a sufficient showing of need." And the lawyers' organization, as plaintiff, says the administration's refusal to even identify the "custodians" of relevant records has "no support" in law.

"The Government's assertion of presidential communications privilege over the mere identity of document custodians finds no support in caselaw or logic. In order to invoke the privilege at all," the ABA observed, "the Government must make a showing that the communications at issue involve the inner circle of presidential advisors—a showing that necessarily requires disclosing the identities of those advisors."

When U.S. District Judge Amir Ali on Aug. 3 attempted to "narrow" the existing discovery "impasse" between the ABA and the government, the DOJ answered that "there is no basis for discovery at all" because that would be "contrary to the critical separation of powers principles" that the Supreme Court "articulated" in support of then-Vice President Dick Cheney in 2004.

Emphasizing that Trump's orders against Jenner & Block, Perkins Coie, Wilmer Cutler Pickering Hale and Dorr LLP, and Susman Godfrey — the firm representing the ABA — "have already been permanently enjoined" and remain on appeal, the DOJ claimed the ABA has other discovery avenues to exhaust before it can make demands of the White House.

But the ABA says no one knows more about Trump's "unprecedented and uniquely dangerous" executive orders, and that's why it aims to discover "all individuals who participated in the drafting, editing, publishing, review, or approval of Law Firm Orders, including who first proposed the idea, who drafted the orders, who reviewed them, and who approved them" and the "policy team" members departing White House press secretary Karoline Leavitt mentioned in April, whom she said were "executing on [Trump's] directive to hold Big Law accountable for their weaponization of justice and their lies."

The White House is trying to "make a claim of privilege that is so broad and so vague that it cannot even be tested," the ABA said, which is "all the more outlandish because the identity of White House advisors is not a secret."

"The White House provides an annual report to Congress listing the names and positions of each staffer. The administration has repeatedly publicized the role of particular advisors, such as then-Staff Secretary Will Scharf and Deputy Chief of Staff Stephen Miller, including with respect to the Law Firm Orders specifically," the response continued.

Then the ABA wondered if the president has a "secret group of advisors" he doesn't want anyone to know about.

"It would be deeply troubling if the President cultivated a secret group of advisors and fought tooth and nail to keep even their names a secret," the filing said.

A declaration from Deputy Counsel to the President Gary Lawkowski claimed there would be a "chilling effect" if these "senior White House advisors and their staffs" were revealed, since they "have broad and significant responsibility for investigating and formulating advice in connection with presidential decision making[.]"