President Donald Trump delivers the Memorial Day Address at the 157th National Memorial Day Observance at Arlington National Cemetery, Monday, May 26, 2025, in Arlington, Va., as Vice President JD Vance and Secretary of Defense Pete Hegseth, right, look on (AP Photo/Julia Demaree Nikhinson).
The Trump administration is imploring a federal judge to reconsider a recent court order that requires the government to reveal its justification for fatal attacks on boats in the Caribbean.
On Thursday, in a 15-page motion for reconsideration, the U.S. Department of Justice asked U.S. District Judge Paul Engelmayer, a Barack Obama appointee, to let the government keep secret a list of people who are already privy to the relevant information.
The information in question is a highly sought-after memorandum prepared by the Office of Legal Counsel (OLC) containing the legal analysis, or justification, undergirding the controversial boat attacks. The memo is also believed to contain what the judge terms "facts or factual premises" about the circumstances of the attacks.
In late September, Engelmayer rejected several of the Trump administration's arguments for keeping the OLC memo under wraps.
The court noted that the government has cited the memo to defend the boat strikes, rejected attempts to use "a body of secret law which it is actually applying in its dealings with the public," and said privilege claims are not enough to keep the memo's legal analysis out of public view. The judge also acknowledged some aspects of the document dealing with facts on the water might be national security secrets.
To that end, Engelmayer found he needs to review the memo behind closed doors before making a final decision on disclosure. Aiding the court in that quest is additional briefing from the government on national security issues and a list of "who received [the memo]" inclusive of "persons who received it from its original recipients."
The court's order elaborates on that directive:
The Court directs defendants, in a sworn declaration or declarations, to identify, by name and title, every person who, from its creation in September 2025 to date, has had or been given access to the OLC Memo in whole or in part, the date(s) of such access, the purposes for and context in which this access was given, and the basis on which these factual determinations have been made. Insofar as the agencies have stated that there are finite copies of the Memo and that access to them has been tightly controlled, it is reasonable to seek this information.
In its motion for reconsideration, the government says it "seeks limited reconsideration—and a related stay—only of the Order's requirement for the government to identify all persons who have been given access to the OLC Memorandum."
To hear the Trump administration tell it, the list-of-names directive "should be set aside" because it gets the law wrong.
"[W]e respectfully submit that it is based on a misapprehension of the law of the presidential communications privilege," the motion argues, "confidential distribution within the executive branch for official government purposes does not waive the privilege, so the factual inquiry is not germane."
In other words, the DOJ says the court's interest in the recipients of the memo is not relevant to the presidential privilege analysis the court said it must undertake before ruling on disclosure.
"[T]he Order's requirement for the government to identify every person given access to the Memorandum rests on the legally mistaken premise that if other executive branch staff confidentially reviewed the Memorandum for purposes other than advising the President, it could result in a waiver of the privilege—even if those officials had a legitimate need and proper clearance to access the Memorandum," the motion continues.
The filing goes on like this:
The Order's standard overlooks the essential purpose that the presidential communications privilege is designed to serve: to protect presidential decisionmaking. The privilege protects not only pre-decisional documents leading to a presidential decision, but "final and post-decisional materials" as well. To exclude these materials from the privilege would impermissibly "limit the President's ability to communicate his decisions privately, thereby interfering with his ability to exercise control over the executive branch."
"[T]he Order's legal standard is not workable. It cannot be the case that to show the presidential communications privilege, the government must, as a threshold matter, survey the executive branch and identify every person given access to a document," the motion argues. "Such a requirement would leave the presidential communications privilege…on worse footing than the attorney-client privilege."
The DOJ also says Engelmayer should reconsider the list of names requirement because the plaintiffs in the case, the American Civil Liberties Union (ACLU), did not ask for the list.
"[P]laintiffs did not seek identification and disclosure of each person who accessed the Memorandum (though they did suggest that discovery could be appropriate)," the motion continues. "Reconsideration is therefore appropriate."