On April 30 2020, the NAACP Legal Defense and Educational Fund, Inc. (LDF) filed a lawsuit against Attorney General William Barr, the United States Department of Justice, the Presidential Commission on Law Enforcement and the Administration of Justice (“Commission”), and the chair and vice chair of this Commission. Our suit challenges the creation of the Commission – an initiative that was first announced in October 2019 through a presidential executive order, and implemented in January 2020 by Attorney General Barr. LDF’s complaint demonstrates that the Commission has failed to comply with nearly any requirement of the Federal Advisory Committee Act (FACA), a law that helps ensure that federal advisory committees are publicly accountable.
The order creating the Commission, and the appointments made by Attorney General Barr to the Commission, make clear that the Commission is designed to reach a preordained conclusion: to support President Trump’s and Attorney General Barr’s unfounded claims that there is lack of respect for law enforcement across the United States due to recent efforts to reform the criminal justice system. The Commission’s membership is comprised almost exclusively of law enforcement officials and its related executive order directs the Commission to study, among other matters, “refusals by State and local prosecutors to enforce laws or prosecute categories of crimes” and “the need to promote public respect for the law and law enforcement.”
Specifically, LDF’s suit argues that the Commission has violated FACA in the following ways: it has failed to guarantee that the Commission’s membership is fairly balanced and without undue influence; failed to file an advisory committee charter, which is required before the Commission holds any hearings; failed to appoint oversight officers; failed to give timely public notice of Commission hearings so that the public may attend; and failed to make all Commission-related documentation available to the public.
Read the full complaint here.
On October 1st 2020, the United States District Court for the District of Columbia ruled that the Presidential Commission on Law Enforcement and the Administration of Justice (Commission) has violated multiple requirements of the Federal Advisory Committee Act (FACA), a statute designed to ensure that federal advisory committees are accountable to Congress and the American public. Under the court’s ruling, all further Commission operations must immediately be halted until the Commission is brought into compliance with the law.
In April, the NAACP Legal Defense and Educational Fund, Inc. (LDF) filed suit, arguing that this skewed composition violates FACA, which requires that federal advisory committees include a fair balance of viewpoints. The suit also contended that the Commission violated FACA’s requirements concerning public access by refusing to provide advance notice of its meetings and failing to make Commission documents available to the public.
In an opinion granting summary judgment to LDF on all its claims, the court ordered that “Commission proceedings be halted — and no work product released — until the requirements of FACA are satisfied.” In doing so, the court recognized the concrete harms LDF, as well as members of the public, suffer from the Commission’s secrecy and bias. “Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today,” the court wrote.