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)

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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: (202) 305-8573 Facsimile: (202) 616-8460 E-mail: Counsel for Defendants

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