Knight First Amendment Institute at Columbia University et al v. Trump et al

Filing 65

LETTER addressed to Judge Naomi Reice Buchwald from Michael H. Baer dated March 6, 2018 re: Defendants' summary judgment briefing. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Baer, Michael)

U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530

March 6, 2018
Via ECF and by Fax
The Hon. Naomi Reice Buchwald
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Knight First Amendment Institute at Columbia University, et al. v. Trump, et al.,
No. 17-cv-5205 (NRB)
Dear Judge Buchwald:
In preparing for Thursday’s argument in the above-captioned matter, counsel for
Defendants identified the inadvertent omission of subsequent history from a citation to a district
court decision in their opening brief. Defendants cited the case, National Association of Internal
Revenue Employees v. Nixon, 349 F. Supp. 18 (D.D.C. 1972), at page 9 of their opening brief (ECF
No. 35) as part of a string cite in support of the proposition that “courts routinely reject demands
to enjoin the President’s discretionary conduct, regardless of the claim.” Defendants inadvertently
omitted that this decision was subsequently reversed on appeal sub nom. National Treasury
Employees Union v. Nixon (“Treasury Employees”), 492 F.2d 587 (D.C. Cir. 1974).1 In reversing,
the appellate court did not decide whether courts can enjoin the President’s discretionary conduct.
Rather, it held that the President had a ministerial, non-discretionary duty to act, and that the court
could enter equitable relief with respect to such a ministerial duty. Id. at 607, 616.

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
BRETT A. SHUMATE
1 The D.C. Circuit has since indicated that Treasury Employees itself may no longer be good
law. See Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (citing Franklin v. Massachusetts,
505 U.S. 788, 802 (1992)).

2
Deputy Assistant Attorney General
ERIC R. WOMACK
Assistant Branch Director
/s/ Michael H. Baer
MICHAEL H. BAER
DANIEL HALAINEN
Trial Attorneys
U.S. Department of Justice,
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail: [e-mail]
Counsel for Defendants