Dunlap v. Presidential Advisory Commission on Election Integrity

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MATTHEW DUNLAP,

Plaintiff,

v.
Civil Action No. 17-2361 (CKK)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, et al.,

Defendants.

MEMORANDUM OPINION
(June 27, 2018)

On December 22, 2017, the Court held that Plaintiff Matthew Dunlap was entitled to certain

documents to vindicate his right, as an appointed commissioner, to fully participate in the

proceedings of the Defendant Presidential Advisory Commission on Election Integrity (the

“Commission”). See Dunlap v. Presidential Advisory Comm’n on Election Integrity, 286 F. Supp.

3d 96 (D.D.C. 2017). The Commission never complied with the Court’s Order. Nor did any co-

Defendant officials or entities indicate an intention to do so. 1 An Executive Order issued on

January 3, 2018, terminated the Commission and triggered a series of motions seeking to clarify

1
As of the filing of the [1] Complaint, Defendants consisted of the Commission; Michael R. Pence,
in his official capacity as Chair of the Commission; Kris W. Kobach, in his official capacity as
Vice Chair of the Commission; Andrew Kossack, in his official capacity as Designated Federal
Officer for the Commission; the General Services Administration (“GSA”); Timothy R. Horne, in
his official capacity as Acting Administrator of the GSA; the Executive Office of the President;
the Office of the Vice President; the Office of Administration; and Marcia L. Kelly, in her official
capacity as Director of the Office of Administration. In this Memorandum Opinion, the Court
shall continue to refer to those individuals and entities as Defendants, despite some question as to
whether some remain in this case following the Commission’s dissolution. The Court need not
decide that issue in this Opinion.

1
the path forward in this case.

Upon consideration of the pleadings, 2 the relevant legal authorities, and the record as a

whole, including the Court’s [32] Order and [33] Memorandum Opinion of December 22, 2017,

which the Court expressly incorporates herein, the Court DENIES Plaintiff’s [35] Application for

a Temporary Restraining Order (“TRO Application”), DENIES Defendants’ [39] Motion to

Reconsider This Court’s December 22, 2017, Order (“Motion to Reconsider”), and, in an exercise

of the Court’s discretion, DENIES Plaintiff’s [48] Motion for Leave to Serve a Preservation

Subpoena (“Subpoena Motion”).

Defendants have indicated that if the Court were to deny their Motion to Reconsider, they

would consider seeking appellate review rather than producing the documents at issue. MTR

Mem. at 12-13. They accordingly requested a stay of any adverse decision to give them time to

evaluate. As the Court shall discuss in this Opinion, Defendants are not entitled to a stay either

during their determination of whether to appeal or during any appeal, subject to any finding that

2
The Court’s consideration has focused on the following documents:
• Mem. of Law in Supp. of Pl.’s Appl. for a TRO, ECF No. 35-1 (“TRO Mem.”);
• Defs.’ Mot. to Reconsider This Ct.’s Dec. 22, 2017, Order, ECF No. 39 (“MTR Mem.”);
• Mem. in Opp’n to Defs.’ Mot. to Reconsider the Dec. 22, 2017 Order Granting in Part Pl.’s
Mot. for a Prelim. Inj., ECF No. 46 (“MTR Opp’n”);
• Reply in Further Supp. of Defs.’ Mot. to Reconsider This Ct.’s Dec. 22, 2017, Order, ECF
No. 47 (“MTR Reply”);
• Suppl. Br. in Supp. of Pl.’s Mot. for a TRO, ECF No. 42 (“TRO Ancillary Issue Mem.”);
• Defs.’ Resp. to Pl.’s Suppl. Br. in Supp. of Mot. for TRO, ECF No. 44 (“TRO Ancillary
Issue Opp’n”);
• Suppl. Reply Br. in Supp. of Pl.’s Mot. for a TRO, ECF No. 45 (“TRO Ancillary Issue
Reply”);
• Pl.’s Mot. for Leave to Serve a Preservation Subpoena, ECF No. 48 (“Subpoena Mem.”);
• Defs.’ Opp’n to Pl.’s Mot. for Leave to Serve a Subpoena, ECF No. 49 (“Subpoena
Opp’n”); and
• Reply Br. in Supp. of Pl.’s Mot. for Leave to Serve a Subpoena, ECF No. 50 (“Subpoena
Reply”).

2
the Court lacks jurisdiction over aspects of the case under consideration by the United States Court

of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “Court of Appeals”).

Plaintiff is entitled under Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), to the

preliminary relief guaranteed by the Court’s [32] Order and [33] Memorandum Opinion of

December 22, 2017, as further clarified in this Memorandum Opinion, but not to anything more

at this time. Defendants must produce the relevant documents by no later than JULY 18, 2018.

I. BACKGROUND

The Court extensively discussed the statutory and factual background of the Commission

in its decision as to Plaintiff’s [7] Motion for a Preliminary Injunction. See Dunlap, 286 F. Supp.

3d at 99-104. The Court shall only briefly recapitulate here the Commission’s short life and

Plaintiff’s role therein, with emphasis on the factual and procedural developments that have

occurred since the Court’s decision.

President Donald J. Trump launched the Commission on May 11, 2017, with a mandate to

“study the registration and voting processes used in Federal elections.” Executive Order No.

13,799 § 3, 82 Fed. Reg. 22,389, 22,389 (May 11, 2017) (“May 11, 2017 Exec. Order”). Plaintiff

Matthew Dunlap, Secretary of State of the State of Maine, was among the appointed

commissioners. Over the following summer and early fall, the Commission held several meetings

regarding election issues and collected some state voter data. Yet, despite his eagerness to

contribute to the Commission’s work, Plaintiff had reason to believe that Defendants and perhaps

other commissioners were inhibiting his ability to fully do so. Plaintiff tried to obtain certain

documents from the Commission to vindicate his rights, and when he was unsuccessful, he brought

this lawsuit against the Commission, Vice President Michael R. Pence in his capacity as Chair of

the Commission, Kris W. Kobach in his capacity as Vice Chair, the Executive Office of the

3
President (“EOP”), and the Office of the Vice President (“OVP”), among others.

Unofficial information shortly thereafter suggested that the Commission might hold a

meeting without inviting Plaintiff’s involvement in the planning. This precipitated his efforts to

obtain preliminary relief, which this Court granted in significant part on December 22, 2017. The

Court found that Plaintiff was likely to succeed in obtaining certain relief pursuant to the Court’s

mandamus jurisdiction, 28 U.S.C. § 1361, and met the remaining elements for a preliminary

injunction as to that relief. Defendants were required to provide Plaintiff with certain past and

future documents to facilitate his meaningful participation as a commissioner. See, e.g., Dunlap,

286 F. Supp. 3d at 107-08. They never did so.

On January 3, 2018, Defendants abruptly notified the Court that President Trump had

signed an Executive Order that terminated the Commission. Notice of Executive Order, ECF No.

34. A flurry of public statements comprised the Commission’s early epitaph. That day the White

House Press Secretary offered one version of the reasons for its demise:

Despite substantial evidence of voter fraud, many states have refused to provide the
Presidential Advisory Commission on Election Integrity with basic information
relevant to its inquiry. Rather than engage in endless legal battles at taxpayer
expense, today President Donald J. Trump signed an executive order to dissolve the
Commission, and he has asked the Department of Homeland Security to review its
initial findings and determine next courses of action.

Statement, The White House, Statement by the Press Secretary on the Presidential Advisory

Commission on Election Integrity (Jan. 3, 2018), ECF No. 46-1. Mr. Kobach, who had overseen

much of the Commission’s operations as its Vice Chair, highlighted the realpolitik:

“It got to the point where the staff of the commission was spending more time
responding to litigation than doing an investigation,” Mr. Kobach said. “Think of
it as an option play; a decision was made in the middle of the day to pass the ball.
The Department of Homeland Security is going to be able to move faster and more
efficiently than a presidential advisory commission.”

4
TRO Mem. at 5 (quoting Michael Tackett and Michael Wines, Trump Disbands Commission on

Voter Fraud, N.Y. Times (Jan. 3, 3018), https://www.nytimes.com/2018/01/03/us/politics/trump-

voter-fraud-commission.html). At least from his perspective, Mr. Kobach evidently would serve

as “an informal adviser to homeland security,” id. (quoting Tackett and Wines, supra) (internal

quotation marks omitted), who would be “working closely with the White House and DHS to

ensure the investigations continue,” id. at 5-6 (quoting John Binder, Exclusive—Kris Kobach:

Voter Fraud Commission ‘Being Handed off’ to DHS, Will No Longer Be ‘Stonewalled’ by Dems,

Breitbart (Jan. 3, 2018), http://www.breitbart.com/big-government/2018/01/03/exclusive-kris-

kobach-voter-fraud-commission-being-handed-off-to-dhs-will-no-longer-be-stonewalled-by-

dems/) (internal quotation marks omitted). Confirming that the issue would remain on the agenda,

President Trump tweeted, “Push hard for Voter Identification!” on January 4, 2018. MTR Opp’n

at 10 n.18 (quoting Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2018)) (internal

quotation marks omitted).

Nowhere did Defendants indicate that they would comply with the Court’s December 22,

2017, Order compelling them to provide Plaintiff with certain documents. Defendants’

correspondence with Plaintiff indicated that they would instead seek reconsideration of the Court’s

Order in light of the Commission’s termination. TRO Mem. Ex. 2, ECF No. 35-3, at 1-2. Fearing

that his final opportunity to participate in the Commission was slipping away, Plaintiff applied for

a temporary restraining order (“TRO”) seeking extensive relief, including a variety of orders

regarding post-dissolution management of Commission documents and an order compelling

Defendants’ compliance with the Court’s preliminary injunction. See Pl.’s Appl. for a TRO, ECF

No. 35, at 1-2.

In parallel, Defendants sought reconsideration of the Court’s preliminary injunction, citing

5
the “changed circumstances” of the Commission’s termination without “issu[ing] a report or

mak[ing] any recommendations before its dissolution.” MTR Mem. at 1. In an effort to handle

the motion practice most efficiently, the Court held a teleconference with the parties and decided

to hold the TRO Application in abeyance while the Court resolved the Motion to Reconsider. Min.

Order of Jan. 10, 2018. Plaintiff did, however, request the Court’s prompt attention to one issue

that he had not expressly raised in the TRO Application, namely whether former Commission

members—some of whom were never Defendants in this case—could be restrained from

unofficially disseminating official Commission records to the Department of Homeland Security

or to other third parties. Id. The parties proceeded to brief the Motion to Reconsider, as well as

Plaintiff’s ancillary request for some form of restraint on former Commission members.

Defendants argued in their briefing that Mr. Kobach, as a Defendant sued only in his

official capacity as Vice Chair of the Commission, is no longer a party to this case after the

Commission’s dissolution. 3 See, e.g., TRO Ancillary Issue Opp’n at 1. Plaintiff accordingly filed

a motion for leave to serve a subpoena on Mr. Kobach to ensure that he would preserve documents,

in light of Defendants’ position that they could not compel him to do so. Subpoena Mem. at 1; see

also TRO Ancillary Issue Opp’n at 1 (“The Commission no longer exists and no longer has the

power to compel the actions of its former Commission members.”).

On the basis of the briefing, the Court is now prepared to resolve Defendants’ Motion to

Reconsider the preliminary injunction, together with Plaintiff’s TRO Application, the request

ancillary to Plaintiff’s TRO Application, and Plaintiff’s Subpoena Motion directed to Mr. Kobach.

3
Defendants made the same argument about Vice President Michael R. Pence, sued only in his
official capacity as Chair of the Commission. TRO Ancillary Issue Opp’n at 1. Plaintiff has not
sought leave to serve a preservation subpoena on him.
6
 II. LEGAL STANDARD

A. Motion to Reconsider

Under Federal Rule of Civil Procedure Rule 54(b), “any order . . . that adjudicates fewer

than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at

any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.” Fed. R. Civ. P. 54(b). As it has before, the Court again shares the view in this district

that a Rule 54(b) motion may be granted “as justice requires.” E.g., Coulibaly v. Tillerson, 278 F.

Supp. 3d 294, 301 (D.D.C. 2017) (Contreras, J.); United States v. Dynamic Visions, Inc., 321 F.R.D.

14, 17 (D.D.C. 2017) (Kollar-Kotelly, J.); Singh v. George Washington Univ., 383 F. Supp. 2d 99,

101 (D.D.C. 2005) (Lamberth, J.) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)

(Lamberth, J.)). The proponent carries the burden of proving “that some harm, legal or at least

tangible, would flow from a denial of reconsideration,” and accordingly persuading the Court that

in order to vindicate justice it must reconsider its decision. Dynamic Visions, Inc., 321 F.R.D. at

17 (quoting Cobell, 355 F. Supp. 2d at 540) (internal quotation marks omitted).

“In general, a court will grant a motion for reconsideration of an interlocutory order only

when the movant demonstrates: ‘(1) an intervening change in the law; (2) the discovery of new

evidence not previously available; or (3) a clear error in the first order.” Zeigler v. Potter, 555 F.

Supp. 2d 126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co., Inc. v. U.S. Tobacco Co., 217

F.R.D. 235, 237 (D.D.C. 2003)), aff’d No. 09-5349, 2010 WL 1632965 (D.C. Cir. Apr. 1, 2010).

“Justice [also] may require reconsideration . . . ‘where a controlling or significant change in the . . .

facts has occurred since the submission of the issue to the court.’” McLaughlin v. Holder, 864 F.

Supp. 2d 134, 141 (D.D.C. 2012) (quoting Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C.

2010)).

7
 However, as the parties were warned, “motions for reconsideration . . . cannot be used as

an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle

for presenting theories or arguments that could have been advanced earlier.” Estate of Gaither ex

rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 & n.4 (D.D.C. 2011)) (quoting SEC v.

Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C. 2010)) (internal quotation marks omitted); Order

Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly, ECF No. 6, ¶ 13.

B. Application for Temporary Restraining Order

Like a preliminary injunction, a temporary restraining order is an extraordinary form of

relief. An application for a TRO is analyzed using factors applicable to preliminary injunctive

relief. See, e.g., Gordon v. Holder, 632 F.3d 722, 723-24 (D.C. Cir. 2011) (applying preliminary

injunction standard to district court decision denying motion for TRO and preliminary injunction);

Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011) (articulating TRO elements based on

preliminary injunction case law).

Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon

a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392

(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“[A] preliminary injunction is an

extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.” (internal quotation marks omitted)). A plaintiff

seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the

balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v.

Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter,

8
555 U.S. at 20) (alteration in original; internal quotation marks omitted)). When seeking such

relief, “the movant has the burden to show that all four factors, taken together, weigh in favor of

the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension

Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted).

“The four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at 1291.

Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one

of the factors, then it does not necessarily have to make as strong a showing on another factor.”

Id. at 1291-92.

The Court notes that it is not clear whether this Circuit’s sliding-scale approach to assessing

the four preliminary injunction factors survives the Supreme Court’s decision in Winter. See Save

Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges

on the D.C. Circuit have “read Winter at least to suggest if not to hold ‘that a likelihood of success

is an independent, free-standing requirement for a preliminary injunction.’” Sherley, 644 F.3d at

393 (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)). However, the D.C. Circuit

has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also

Save Jobs USA, 105 F. Supp. 3d at 112. In light of this ambiguity, the Court shall consider each

of the preliminary injunction factors and shall only evaluate the proper weight to accord the

likelihood of success if the Court finds that its relative weight would affect the outcome.

C. Motion for Leave to Serve Subpoena

Federal Rule of Civil Procedure 26(d) explains that “[a] party may not seek discovery from

any source before the parties have conferred as required by Rule 26(f),” subject to certain

exceptions, including a “court order” authorizing such early discovery. Fed. R. Civ. P. 26(d)(1).

The Court of Appeals has held that Rule 26 “vests the trial judge with broad discretion to tailor

9
discovery narrowly and to dictate the sequence of discovery.” Watts v. SEC, 482 F.3d 501, 507

(D.C. Cir. 2007) (quoting Crawford–El v. Britton, 523 U.S. 574, 598 (1998)). Federal Rule of

Civil Procedure 34 sets forth procedures for requesting that a party produce documents during

Rule 26 discovery, and expressly directs elsewhere for analogous requests to nonparties. See Fed.

R. Civ. P. 34(a); id. 34(c) (“As provided in Rule 45, a nonparty may be compelled to produce

documents . . . .”).

“Federal Rule of Civil Procedure 45 authorizes court-issued subpoenas to obtain discovery

from third parties . . . .” Watts, 482 F.3d at 507. Among the requirements of Rule 45, “[a] party

or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid

imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1).

“The Rule 45 ‘undue burden’ standard requires district courts supervising discovery to be generally

sensitive to the costs imposed on third parties.” Watts, 482 F.3d at 509 (citing, e.g., Cusumano v.

Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (“[C]oncern for the unwanted burden thrust

upon non-parties [by a subpoena] is a factor entitled to special weight in evaluating the balance of

competing needs.”)). “In addition, Federal Rule of Civil Procedure 26(b)(1)-(2) requires district

courts . . . to consider a number of factors potentially relevant to the question of undue burden”

under Rule 45. 4 Id. The rule setting forth the general scope of discovery covers some of these

factors:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.

4
While Rule 26(b)(1)-(2) has been revised since Watts, this observation remains true of the present
language.
10
Fed. R. Civ. P. 26(b)(1). Further findings can trigger non-discretionary restrictions on discovery:

On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that: (i) the
discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or (iii) the proposed discovery is outside the
scope permitted by Rule 26(b)(1).

Id. 26(b)(2)(C) (emphasis added).

D. Request for Stay Pending Appeal

A party that moves for a stay pending appeal bears the burden of showing that the balance

of four factors weighs in favor of the stay:

(1) the likelihood that the party seeking the stay will prevail on the merits of the
appeal; (2) the likelihood that the moving party will be irreparably harmed absent
a stay; (3) the prospect that others will be harmed if the court grants the stay; and
(4) the public interest in granting the stay.

Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985) (per curiam); see

also id. at 978 (“On a motion for stay, it is the movant’s obligation to justify the court’s exercise

of such an extraordinary remedy.”); Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1263-64 (D.C.

Cir. 2007) (Randolph, J., concurring) (citing Cuomo as demonstrative of the Court of Appeals’

“long-standing principles governing stays”). 5 A party does not necessarily have to make a strong

showing with respect to the first factor (likelihood of success on the merits) if a strong showing is

made as to the second factor (likelihood of irreparable harm). Cuomo, 772 F.2d at 974

5
“The test for a stay or injunction pending appeal is essentially the same” as the test for a
preliminary injunction, “although courts often recast the likelihood of success factor as requiring
only that the movant demonstrate a serious legal question on appeal where the balance of harms
strongly favors a stay[.]” Al–Anazi v. Bush, 370 F. Supp. 2d 188, 193 & n.5 (D.D.C. 2005) (citing
United States v. Philip Morris Inc., 314 F.3d 612, 617 (D.C. Cir. 2003), abrogated on other
grounds, Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009); Cuomo, 772 F.2d at 978; Wash.
Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843-44 (D.C. Cir. 1977)).

11
(“Probability of success is inversely proportional to the degree of irreparable injury evidenced. A

stay may be granted with either a high probability of success and some injury, or vice versa.”).

Ultimately, a court must weigh the factors depending on the circumstances of the particular case.

See, e.g., Ctr. for Int’l Envtl. Law v. Office of the U.S. Trade Representative, 240 F. Supp. 2d 21,

23 (D.D.C. 2003) (“The remaining two factors—potential harm to plaintiffs and other individuals

or to the public interest if a stay is granted—argue against a stay but ultimately do not outweigh

defendants’ showing of a substantial case on the merits and irreparable harm from disclosure.”).

III. DISCUSSION

A. Motion to Reconsider This Court’s December 22, 2017, Order

1. Rule 54(b) Standard

The preliminary injunction granted in this case did not resolve all of Plaintiff’s claims, even

preliminarily. The Court has yet to resolve on the merits the claims presented in Plaintiff’s motion

for preliminary injunction. And the Court has not made any decision as to at least one further

claim in Plaintiff’s [1] Complaint, namely that Defendants violated Section 9(c) of the Federal

Advisory Committee Act (“FACA”) by acting out of turn with their filing of the Commission

charter. See, e.g., Dunlap, 286 F. Supp. 3d at 109 n.5 (declining to decide this claim not pursued

in preliminary injunction motion). Accordingly, it is appropriate to evaluate the Motion to

Reconsider under the Rule 54(b) standard applicable to an order that “adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the parties.” Fed. R. Civ. P. 54(b). As

discussed above, that standard is whether “justice requires” reconsideration. Dynamic Visions,

Inc., 321 F.R.D. at 17.

Defendants do not discuss the “as justice requires” standard but instead refer to several

other standards, both for Rule 54(b) and other rules on which a decision purportedly could be

12
based. As to Rule 54(b), Defendants argue that the relevant standard is whether “a change of

circumstances between entry of the injunction and the filing of the motion” to reconsider has

occurred “that would render the continuance of the injunction in its original form in equitable

[sic].” MTR Mem. at 4 (quoting Fox Television Stations, Inc. v. FilmOn X LLC, 968 F. Supp. 2d

134, 140 (D.D.C. 2013)) (internal quotation marks omitted) (mistake not in original). However,

Defendants do not cite any cases in this jurisdiction that apply this standard to Rule 54(b) decisions.

On the contrary, Defendants’ main case expressly recognizes that the “justice requires” standard

applies in the Rule 54(b) context. See Fox Television Stations, Inc., 968 F. Supp. 2d at 140 n.3

(“find[ing] that justice does not require reconsideration” upon “assuming arguendo that the Rule

54(b) standard applies”).

In the alternative to resolving this motion on Rule 54(b) grounds, Defendants urge the

Court to apply the Rule 59(e) standard. See MTR Mem. at 3-5. Although Plaintiff does not

expressly respond to that alternative argument, the Court finds that it is unnecessary to apply Rule

59(e), which Defendants aptly note “is generally used for reconsideration of final judgments,” id.

at 4. See also Fed. R. Civ. P. 59(e) (setting deadline for “motion to alter or amend a judgment”

following “entry of the judgment”); id. 54(a) (defining “judgment” as “a decree and any order from

which an appeal lies”). “Motions under Rule 59(e) are ‘disfavored’ and the moving party bears

the burden of establishing ‘extraordinary circumstances’ warranting relief from a final judgment.”

United States v. Burwell, 253 F. Supp. 3d 283, 285 (D.D.C. 2017) (Kollar-Kotelly, J.) (quoting

Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (Hogan, C.J.)). Because

the Court has not entered final judgment, and because the Court shall in any event find that the

Rule 54(b) standard is not satisfied, the Court need not separately evaluate whether Defendants are

entitled to relief based on what appears to be a higher standard associated with Rule 59(e).

13
 Defendants also make some reference to case law applying a Rule 60(b) standard. See,

e.g., MTR Mem. at 3-4 (citing Petties ex rel. Martin v. District of Columbia, 662 F.3d 564, 571

(D.C. Cir. 2011) (“[C]hanged circumstances ha[ve] rendered continued enforcement of the

preliminary injunction . . . contrary to the public interest[.]”)). “Rule 60(b)(5) provides that a

district court may vacate an order or judgment if ‘applying it prospectively is no longer equitable,’”

among other possible grounds. Petties, 662 F.3d at 568 (quoting Fed. R. Civ. P. 60(b)(5)). But,

similarly to Rule 59(e), Rule 60(b) pertains to “a final judgment, order, or proceeding.” Fed. R.

Civ. P. 60(b). There is no argument here that the Court’s preliminary injunction represents a final

judgment. Even if there were some argument, the Court clearly has not concluded its management

of this case by resolving all of the claims on the merits.

In any event, Defendants have primarily urged the Rule 54(b) standard. See MTR Mem.

at 4 (arguing that the “more permissive” Rule 54(b) standard, rather than Rule 59(e) standard,

applies in these circumstances). Plaintiff does not object. The Court shall now apply the Rule

54(b) standard to Defendants’ motion.

2. Justice Does Not Require Reconsideration

Because Defendants fail to articulate, and consequently, address, the threshold Rule 54(b)

consideration of whether “justice requires” reconsideration, they forge ahead with a fresh analysis

of whether the Court should grant a preliminary injunction under the standard four-factor test that

this Court previously applied. See Dunlap, 286 F. Supp. 3d at 104 (citing Aamer, 742 F.3d at

1038). But they are not entitled to that second bite at the apple. For the reasons that follow, the

Court finds that justice does not require reconsideration of its decision to grant partial preliminary

relief to Plaintiff.

The dissolution of the Commission on January 3, 2018, is a relevant factual development,

14
in the basic sense that a commission existed when the Court issued the preliminary injunction and

now does not exist. But that change is not “controlling or significant” for purposes of compelling

reconsideration of whether Plaintiff satisfies the standards for preliminary relief. See McLaughlin,

864 F. Supp. 2d at 141 (contemplating reconsideration in the event of “a controlling or significant

change” of fact (internal quotation marks omitted)). The Commission’s termination does not affect

the premise of the Court’s December 22, 2017, opinion: “Plaintiff ha[d] a right, as a commissioner,

to ‘fully participate’ in the proceedings of the Commission,” and his ability to do so was stunted

by Defendants’ failure to provide him with documents during the life of the Commission. Dunlap,

286 F. Supp. 3d at 106 (“[Plaintiff] has a right to access documents that the Commission is

considering relying on in the course of developing its final recommendations.”); see also

Cummock, 180 F.3d at 291 (“[FACA] must be read to confer on a committee member the right to

fully participate in the work of the committee to which he or she is appointed.”). The Court’s

December 22, 2017, decision affords Plaintiff access to documents described therein that were

generated before the Court’s Order and those that were generated afterwards through the point of

the Commission’s termination. See Dunlap, 286 F. Supp. 3d at 108 (holding that “[t]he

Commission has a clear duty to provide Plaintiff with these [exemplary categories of past]

documents and any similar documents that exist now or in the future.”).

Defendants argue that they should not be required to turn over documents to Plaintiff

because there is no longer a Commission in which to participate using those documents. MTR

Mem. at 2 (quoting Dunlap, 286 F. Supp. 3d at 107 (“Plaintiff is entitled to substantive information

so that he can contribute along the way in shaping the ultimate recommendations of the

Commission . . . .”)). Neither was there still a commission in which to participate in Cummock.

In its December 22, 2017, decision, the Court “[found] that a preliminary injunction is necessary

15
in this case to prevent the Commission from reaching the level of dysfunction that precipitated

Cummock,” namely by frustrating Ms. Cummock’s ability to fully participate in the relevant

commission before that commission was terminated. Dunlap, 286 F. Supp. 3d at 107.

Unfortunately, by January 3, 2018, despite the Court’s best efforts the same dysfunction had

materialized in this case: a commissioner whose full participation had been thwarted during the

life of his commission service was now left to vindicate his rights after the fact.

The principle that “FACA rights are enforceable even after an advisory committee has been

disbanded” is settled law in this Circuit. Cummock, 180 F.3d at 292 (citing Byrd v. EPA, 174 F.3d

239, 243-44 (D.C. Cir. 1999)). In Cummock, the Court of Appeals again recognized this principle

in finding that a former commissioner of a then-defunct commission was nevertheless “entitled to

review” any “information that was made available to [that] Commission during the course of its

deliberative process and without which her ability to fully and adequately participate in that

process was impaired.” Id.

Courts in this Circuit continue to observe that Cummock preserves certain rights after

dissolution of a commission subject to FACA. “A claim for document disclosure survives the

termination of a FACA advisory committee, at least until all of the relevant materials have been

disclosed.” Ctr. for Biological Diversity v. Tidwell, 239 F. Supp. 3d 213, 227 (D.D.C. 2017)

(Kollar-Kotelly, J.) (citing, e.g., Cummock, 180 F.3d at 292); see also, e.g., Nat. Res. Def. Council

v. Abraham, 223 F. Supp. 2d 162, 184 (D.D.C. 2002) (Collyer, J.) (“In Cummock v. Gore, the D.C.

Circuit held that a request for documents pursuant to FACA is not rendered moot by the termination

of the advisory committee in question.”), set aside in part on other grounds sub nom., Nat. Res.

Def. Council v. Dep’t of Energy, 353 F.3d 30 (D.C. Cir. 2004) (mem.). Although such cases

generally concern the post-dissolution availability of documents to the public under FACA § 10(b),

16
a similar policy rationale is applicable to this former commissioner’s right to documents under

Cummock:

A finding that disclosure of the documents was no longer available because the
committee[ ] ceased to exist would allow [Defendants] to frustrate the purposes of
FACA by convening committees and disbanding them before materials could be
requested, or a lawsuit concluded. The documents that [P]laintiff[ ] request[s] are
still in existence and have not been produced to [him].

Abraham, 223 F. Supp. 2d at 184.

Whereas the former commissioner in Cummock needed documents to amend her response

to that commission’s final report, Defendants distinguish this case as not involving a final report

to which Plaintiff has responded or could now do so. See MTR Mem. at 6. In support of this

argument, Defendants submit a declaration from Charles C. Herndon, the Director of White House

Information Technology, indicating that “[t]he Commission did not create any preliminary

findings.” 2d Decl. of Charles C. Herndon, ECF No. 39-2, ¶ 5. It is undisputed that there is no

published final report in this case, and the Court shall accept for a moment, arguendo, that there

are no preliminary findings either. Even so, this distinction is not persuasive. Cummock itself

articulated the commissioner’s separate rights 1) to review any documents to which she was

entitled, as discussed above, and 2) “assuming that Cummock is entitled to review certain

Commission documents to which she has heretofore been denied access, [to] be given an

opportunity to amend and publish a dissent incorporating her fully enlightened views.” Cummock,

180 F.3d at 293. Under Defendants’ reasoning, a former commissioner’s right to documents under

Cummock turns on the arbitrary fact of whether the commission published a report before its

termination. But the Court of Appeals’ decision clearly establishes otherwise. Full participation

in the Commission would have involved the opportunity to contribute to a published report if there

was one, but even where there is not, still Plaintiff’s right must be vindicated to any remaining

17
extent to which it was abridged. 6

Only upon Plaintiff’s review of the documents generated by the Commission will the extent

to which his participation was thwarted become clear. Why should the Plaintiff, a duly appointed

member of that body, be expected to rely on the assertion of a records custodian that there are no

“preliminary findings”? There is no claim that Mr. Herndon had a substantive role in the work of

the Commission. See TRO Ancillary Issue Mem. at 7 n.10 (noting it is not “clear what basis Mr.

Herndon had to make this declaration, including what is meant by ‘finding’ in the declaration and

whether Mr. Herndon, in his role as Director of White House Information Technology, was privy

to all communications between DHS (or other federal agencies and officials) and the Chair, Vice

Chair, Executive Director, and/or other Commission officials”). Among those who did have such

a substantive role, the Vice Chair, Mr. Kobach, was interviewed in preparation for a Breitbart

article that ultimately stated that “the voter fraud commission has revealed” certain specific

findings. Binder, supra; TRO Ancillary Issue Mem. at 7-8 & nn. 8-11 (inaccurately asserting that

article “quoted” Mr. Kobach as saying this). 7 Defendants—purportedly not representing Mr.

Kobach any longer 8—suggest that this assertion is attributable, at least in part, not to “findings by

6
As Judge Judith W. Rogers separately observed of the decision in Cummock, this Court likewise
“has not considered, and expresses no view about, whether ‘full’ participation necessarily entails
an equal opportunity to participate at all times.” Cummock, 180 F.3d at 293 (Rogers, J.,
concurring). Defendants make no argument, for example, that they withheld “classified . . .
information” from Plaintiff to which other commissioners were entitled by virtue of security
clearance. Id.
7
Plaintiff’s “id.” citation in his note 11 would seem to refer to the Tackett and Wines article in the
New York Times, but the “voter fraud commission has revealed” language cannot be found there.
The citation appears instead to refer to the Binder article in Breitbart, where this language can
indeed be found. See TRO Ancillary Issue Mem. at 7-8 & nn. 8-11 (citing, inter alia, Binder,
supra).
8
There is some dispute as to whether Mr. Kobach remains a Defendant in this suit, as he was sued
exclusively in his official capacity. See, e.g., Subpoena Mem. at 2-3 (observing Defendants’
counsel’s disclaimers). The Court need not decide that point here, because the press secretary’s
18
the Commission itself” but rather to “reference material that was presented to the Commission at

its meetings,” TRO Ancillary Issue Opp’n at 10 n.1. But this suggestion of findings cannot be

skirted so easily. On behalf of the President, whose Executive Office was and indisputably remains

a Defendant in this matter, the press secretary has stated that the President “asked the Department

of Homeland Security to review [the Commission’s] initial findings.” Statement, The White

House, supra. President Trump likewise seemed to suggest that the issues entrusted to the

Commission were still live topics, rather than dead-ends proven by an absence of findings. See

MTR Opp’n at 10 n.18 (quoting Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2018))

(“Push hard for Voter Identification!” (internal quotation marks omitted)). Defendants’ effort to

walk back public statements consists of the records custodian’s assertion as well as a footnote

addressing the Breitbart article referenced above:

[T]he statement by Mr. Kobach appears to reference material that was presented to
the Commission at its meetings, not findings by the Commission itself. Material
presented to the Commission at a meeting does not constitute a “finding” by the
Commission any more than material presented to a Court in the context of litigation
constitutes a “finding” by the Court.

TRO Ancillary Issue Opp’n at 10-11 & n.1 (citations omitted). 9 But such post-hoc rationalizations

are not persuasive, particularly where Defendants offer no declarations from Mr. Kobach or the

press secretary (or the President), nor even counsel’s own explanation of the press secretary’s

statement on the part of those Defendants who indisputably remain in this case.

A review of the records themselves will reveal whether some of them could be

statement effectively makes the same admission on the part of a Defendant—the Executive Office
of the President—that undisputedly remains in the case.
9
Defendants’ comment about a “statement by Mr. Kobach” comes close to an admission that Mr.
Kobach supplied the statistics that the Breitbart article quotes. But because the Court does not
decide today whether Mr. Kobach remains a Defendant in this case, the Court does not attribute
Defendants’ comment specifically to him.
19
characterized as findings, or even a report, although they may not be captioned as such. Perhaps

there were draft findings or a draft report that simply were not deemed “final.” Or perhaps e-mails

exist that informally characterize the results of the Commission’s work. It is more difficult to

envision a presidential commission, with paid staff, being terminated without any internal

characterization of that commission’s work over more than six months. In any event, now that the

Commission is terminated, any findings, any report, or any internal characterization of the

Commission’s work is “final” from the perspective of the historical record that will be preserved

in the National Archives pursuant to the Presidential Records Act (“PRA”). See generally 2d Decl.

of Charles C. Herndon, ECF No. 39-2, ¶ 5 (“Non-public Commission records will continue to be

maintained as Presidential Records.”). Plaintiff is entitled to see for himself whether any

documents that were generated can be considered “findings” by Commission staff or between

certain of the commissioners and staff that, in lieu of a formal set of “findings” or formal final

report, will be recorded for posterity in the Archives as the fruits of the Commission.

When Commission records preserved in the Archives under the PRA are made publicly

accessible at the appointed time after the end of the Trump Administration, the documents

themselves will represent to the public the findings and the report of the Commission. In the

meantime, the press secretary’s statement to the public—if not also Mr. Kobach’s statements—

takes the place of final findings and a final report. 10 Plaintiff is entitled to see any such findings,

report, or internal characterization that was not shared with him before it became the final work

product of the Commission. In turn, Plaintiff may respond in public, if he chooses, to any such

10
Defendants “have also directly followed up with Secretary Kobach . . . and requested that he not
share with DHS or any other federal entity (except the White House) any Commission records not
otherwise already made public during the pendency of the plaintiff’s motion. He has agreed to do
so.” TRO Ancillary Issue Opp’n at 2; see also id. at 14 (same). But Mr. Kobach has not committed
not to speak to the public.
20
work product in what may be deemed for posterity as an informal oral or written version of any

alternative findings, or an informal concurring or dissenting report.

The last reason for denying reconsideration is a matter of respect for the tribunal. Shutting

down the Commission due to “endless legal battles,” Statement, The White House, supra, and as

part of an “option play,” TRO Mem. at 5 (quoting Tackett and Wines, supra) (internal quotation

marks omitted), suggests an effort to evade this Court’s December 22, 2017, Order. Were it not

so, the Court would have expected Defendants to pursue an interlocutory appeal, rather than

termination of the Commission twelve days after this Court’s preliminary injunction compelling a

document production. They shall not be permitted to further postpone compliance with a

preliminary injunction.

As in Abraham discussed above, termination of the Commission should not change the

ability of Defendants to comply. See Abraham, 223 F. Supp. 2d at 184. Even before the Court’s

December 22, 2017, decision, Defendants had already reviewed and organized a number of

Commission documents pursuant to court-ordered production of a Vaughn-type index in a related

case before this Court involving the Commission. Dunlap, 286 F. Supp. 3d at 110 (citing Vaughn-

type index in Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory

Commission on Election Integrity, Civil Action No. 17-1354-CKK). Moreover, Defendants

already offered to make available some of those documents for Plaintiff’s inspection. Mem. in

Opp’n to Pl.’s Mot. for a Prelim. Inj. Ex. G, ECF No. 30-7, at 2 (extending offer to inspect certain

documents related to September 12, 2017, meeting). Defendants do not assert that they are no

longer able to produce those documents or that they are unable to produce documents post-dating

the Vaughn-type index. As discussed above, the White House records custodian’s declaration

suggests that they are all preserved.

21
 Defendants have not persuaded the Court that justice requires reconsideration.

Accordingly, Defendants must produce the documents discussed in the Court’s December 22,

2017, decision through the time of the Commission’s termination. See Dunlap, 286 F. Supp. 3d at

108 (giving guidance as to types of documents to which Plaintiff is entitled). For the avoidance of

doubt, the Court makes clear that such production must include relevant documents listed on the

Vaughn-type index as well as those generated or received afterwards. 11 The covered time period

includes relevant documents generated or received between the Court’s December 22, 2017,

decision and the Commission’s termination. The Court has reason to believe that at least some

such documents exist. See TRO Mem. at 8 n.11 (citing Allison Kite, Kobach Voter Integrity

Commission, Stalled by Lawsuits, Will Meet in January, Topeka Capital-Journal (Dec. 29, 2017),

http://cjonline.com/news/state-government/2017-12-29/kobach-voter-integrity-commission-

stalled-lawsuits-will-meet). Plaintiff ultimately should receive relevant documents that any of the

former commissioners generated or received. This includes material that commissioners solicited

and subsequently received from third parties. See, e.g., TRO Ancillary Issue Opp’n at 10 n.1

(attributing certain statistics to one such third-party submission, albeit allegedly supplied at one or

more Commission meetings). Defendants are not obligated, however, to disclose any materials

that were generated before the termination of the Commission but which exclusively concern

document management after its termination. See MTR Mem. at 12.

B. Application for Temporary Restraining Order & Ancillary Request

In his TRO Application, Plaintiff seeks not only a further order compelling the relief

granted by the Court’s December 22, 2017, preliminary injunction, but also additional relief

11
The Court does not here decide the sufficiency of the Vaughn-type index for purposes of the
Lawyers’ Committee litigation.
22
stemming directly from the Committee’s dissolution. Any necessity for a TRO is much

diminished, however, by the Court’s denial today of Defendants’ Motion to Reconsider that

preliminary injunction. Plaintiff’s fears, for example, that Defendants might publish a report or

findings absent Court intervention simply have not materialized. None of the briefing of motions

decided today—which fully ripened on February 21, 2018—identified any verifiable example of

such report or findings since the Commission’s January 3, 2018, termination. Nor has any party

brought such publication to the Court’s attention during the pendency of the motions decided

today.

Plaintiff’s fears came closest to realization when the White House Press Secretary

announced that the Commission’s “initial findings” would be given to DHS. Statement, The White

House, supra. But the press secretary made this statement on the very day of the Commission’s

termination, when perhaps an assertion of findings was little more than hasty boilerplate.

Reinforcing that possibility, the Court has observed a slightly different version of the press

secretary’s statement that is also in the record. The version attached to Andrew Kossack’s January

3, 2018, email informing commissioners of the dissolution of the Commission refers to the

President in the first person as instructing DHS to “review these issues,” rather than review “initial

findings.” TRO Ancillary Issue Mem. Ex. 1, ECF No. 42-1. While it is unclear which version of

the statement was produced first, at the very least the discrepancy appears to signal uncertainty as

to the existence of any findings. Mr. Kobach may have referred to some information as findings

on or about January 3, 2018. See Binder, supra. But as discussed above, these statements by the

press secretary and any by Mr. Kobach are undercut by Mr. Herndon’s declaration that “[t]he

Commission did not create any preliminary findings.” 2d Decl. of Charles C. Herndon, ECF No.

23
39-2, ¶ 5. And no more definitive revelations have been docketed with the Court since then. 12

As set forth in full below, Plaintiff’s requests in his TRO Application may be summarized

in pertinent part as follows: (1) preservation of Commission documents; (2) Plaintiff’s

participation in Commission wind-down and document retention activities; (3) his participation in

document transfer decisions; (4) an injunction against document transfer; (5) an injunction against

dissemination or publication of a report or findings until Plaintiff has had an opportunity to

respond; and (6) an order that Defendants comply with the Court’s December 22, 2017, Order.

See Pl.’s Appl. for a TRO, ECF No. 35, at 1-2. The Court also considers here Plaintiff’s ancillary

request to prohibit the unofficial transfer of official Commission records by former Commission

officials. See Min. Order of Jan. 10, 2018.

Because the Court held the TRO Application in abeyance during its consideration of the

Motion to Reconsider, the Court did not receive an opposition from Defendants (or reply from

Plaintiff). But the salient information is contained in other briefing. Plaintiff’s memorandum in

support of his TRO, and the parties’ full briefing of his ancillary request, sufficiently identify the

issues to make clear that Plaintiff is not entitled to relief. The Court therefore decides the TRO

Application at this time.

12
The foregoing analysis of the likelihood of a report or findings may seem to be in some tension
with the parallel analysis supporting the Court’s denial of Defendants’ Motion to Reconsider. But
the Court finds no inconsistency. Uncertainties about any report or findings work against each of
the parties as to their respective burdens in their respective motions. Defendants fail to obtain
reconsideration due, in part, to the possibility that a draft report or informal findings are among
the documents. Plaintiff fails to obtain a TRO due, in part, to the low likelihood that such a report
or findings exist. In any event, Plaintiff shall soon see whether these documents are among the
Commission records.
24
 1. Document Management Requests

a. Likelihood of Success

Plaintiff’s requests collectively seek a substantial role, for himself and effectively this

Court, in the management of documents after the termination of the Commission. He seeks a

decision:

(1) ordering Defendants to preserve, pending the outcome of this litigation, all
documents and communications relating to the Commission, including but not
limited to all documents and communications on the Vaughn-type index, all
documents and communications regarding the decision to dissolve the
Commission, all documents and communications regarding the disposition of
Commission data and documents, and all documents and communications
regarding the transfer of Commission activities and responsibilities to the
Department of Homeland Security or any other agency, person, group, or entity;
(2) ordering Defendants to permit Secretary Dunlap to fully participate, on an equal
basis as any other commissioner, in all remaining Commission activities, including
but not limited to . . . the disposal or other disposition of documents, data, and
communications (including but not limited to all documents and communications
listed on the Vaughn-type index) received by, generated by, or otherwise related to
the Commission; (3) ordering Defendants to permit Secretary Dunlap’s full
participation in discussions regarding whether and how to transfer documents, data,
and communications (including but not limited to all documents and
communications listed on the Vaughn-type index) received by, generated by, or
otherwise related to the Commission to the Department of Homeland Security, any
other agency, or any other person, group or entity; [and] (4) enjoining Defendants
from transferring to the Department of Homeland Security or any other agency,
person, group or entity any documents, data, and communications (including but
not limited to all documents and communications listed on the Vaughn-type index)
received by, generated by, or otherwise related to the Commission[.] 13

Pl.’s Appl. for a TRO, ECF No. 35, at 1-2. In addition, Plaintiff’s ancillary request, as framed in

his supplement to the TRO Application, is for

[A]n order preserving the status quo by enjoining Mr. Kobach and those acting in
concert with him from distributing Commission records (including documents on
the Vaughn-type index) in his possession to the Department of Homeland Security
or otherwise pending the resolution of the motion for reconsideration and the
receipt by Secretary Dunlap of documents to which he is entitled under the Court’s

13
The Court separately considers below the portion of Plaintiff’s request (2) seeking participation
in Commission wind-down activities.

25
 December 22, 2017 Order.

TRO Ancillary Issue Mem. at 1-2. 14 Plaintiff characterizes his request as “only seek[ing] a

temporary injunction” pending his receipt of the documents at issue, which would equip him to

“fully and fairly participate in ongoing discussions.” TRO Ancillary Issue Reply at 16.

In order to assess the first of the TRO elements, the likelihood of success, the Court shall

begin with a brief overview of the statutory and regulatory regime that applies to Commission

documents now that the Commission has terminated. Federal regulations governing advisory

committee records provide as follows concerning their retention:

Official records generated by or for an advisory committee must be retained for the
duration of the advisory committee. Upon termination of the advisory committee,
the records must be processed in accordance with the Federal Records Act (FRA),
44 U.S.C. Chapters 21, 29–33, and regulations issued by the National Archives and
Records Administration (NARA) (see 36 CFR parts 1220, 1222, 1228, and 1234),
or in accordance with the Presidential Records Act (PRA), 44 U.S.C. Chapter 22.

41 C.F.R. § 102-3.175(e). Pursuant to Section 102-3.175(e), it is necessary to determine whether

post-termination management of official Commission documents is subject to the FRA and NARA

regulations, or to the PRA. The parties do not argue that the FRA and NARA regulations apply.

But see TRO Ancillary Issue Opp’n at 13 n.5 (observing that Presidential records sent to federal

agencies “then become federal records subject to the Freedom of Information Act”). Rather, they

acknowledge that the PRA is applicable here. See, e.g., TRO Ancillary Issue Mem. at 6 (making

argument about certain “Commission records subject to the Presidential Records Act”); TRO

Ancillary Issue Opp’n at 12-13 (“The Presidential Records Act governs Presidential records

(including, in this context, Commission records).” (citation omitted)). The Court agrees that the

14
Plaintiff “does not seek a gag order that would prevent any [former] commissioner from
speaking about Commission records or about his or her experiences on the Commission.” TRO
Ancillary Issue Mem. at 2 n.3.
26
entities that produced or received the documents at issue render the Commission records subject

to the PRA.

Documentary materials produced or received by the President, the President’s staff,
or units or individuals in the Executive Office of the President the function of which
is to advise or assist the President, shall, to the extent practicable, be categorized as
Presidential records or personal records upon their creation or receipt and be filed
separately.

44 U.S.C. § 2203. The Commission’s charter recognized that the Commission would “provide its

advice and recommendations to the President” and that its documents would “be maintained

pursuant to the [PRA] and FACA.” Charter, ECF No. 30-2, ¶¶ 5, 13. Accordingly, the

Commission seems to be subjected by its charter to the above-referenced PRA provision applicable

to “units . . . in the Executive Office of the President” whose “function” is to “advise or assist the

President.” If that were not clear, Mr. Herndon, the Director of White House Information

Technology, has confirmed by declaration in this litigation that “[n]on-public Commission records

will continue to be maintained as Presidential records,” while those that are public are available

on the White House website. 2d Decl. of Charles C. Herndon, ECF No. 39-2, ¶ 5.

Even if the Commission documents were properly associated with the Vice President,

rather than the President, the documents would similarly be covered by the PRA’s document

management regime. The President’s Executive Order establishing the Commission designated

the Vice President as its chair. May 11, 2017 Exec. Order § 2. For purposes of this opinion, all

PRA provisions applicable to the President and Presidential records are also applicable to the Vice

President and Vice-Presidential records. See 44 U.S.C. § 2207 (drawing some distinctions not

relevant here). Accordingly, whether official Commission documents were created or received by

units or individuals within the EOP, or by those within the OVP, both of which are Defendants in

this case, they would be covered by the PRA.

27
 The Presidential Records Act defines certain records as “Presidential records” (and,

correspondingly, “Vice-Presidential records”) subject to the categorization required above:

The term “Presidential records” means documentary materials, or any reasonably
segregable portion thereof, created or received by the President, the President’s
immediate staff, or a unit or individual of the Executive Office of the President
whose function is to advise or assist the President, in the course of conducting
activities which relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial duties of the President.

44 U.S.C. § 2201(2); see also id. § 2207 (Vice-Presidential records). The President and Vice

President have obligations to ensure that Presidential records and Vice-Presidential records,

respectively, are appropriately maintained:

Through the implementation of records management controls and other necessary
actions, the President shall take all such steps as may be necessary to assure that
the activities, deliberations, decisions, and policies that reflect the performance of
the President’s constitutional, statutory, or other official or ceremonial duties are
adequately documented and that such records are preserved and maintained as
Presidential records pursuant to the requirements of this section and other
provisions of law.

44 U.S.C. § 2203(a); see also id. § 2207 (Vice President’s obligations). It is clear to this Court

that the PRA is a comprehensive regime that does not expressly afford a third party, such as

Plaintiff, any role in the management of Presidential or Vice-Presidential records. Indeed, the

President and Vice President are charged with taking “all . . . steps as may be necessary,” for

preservation under the PRA, 44 U.S.C. § 2203(a) (emphasis added); id. §2207 (Vice President), in

conjunction with the activities of the Archivist, see id. § 2203 (c)-(g).

Plaintiff argues that Defendants are not fulfilling their document preservation obligations

under the PRA, among other authorities. See TRO Ancillary Issue Reply at 2-5. But the D.C.

Circuit has generally prohibited courts in this jurisdiction from evaluating compliance with the

PRA: “We conclude that permitting judicial review of the President’s compliance with the PRA

would upset the intricate statutory scheme Congress carefully drafted to keep in equipoise

28
important competing political and constitutional concerns. We therefore hold that the PRA is one

of the rare statutes that does impliedly preclude judicial review.” Armstrong v. Bush, 924 F.2d

282, 290 (D.C. Cir. 1991) (Armstrong I); see also Armstrong v. Exec. Office of the President, 1

F.3d 1274, 1294 (D.C. Cir. 1993) (Armstrong II) (recognizing that “the PRA impliedly precludes

judicial review of the President’s decisions concerning the creation, management, and disposal of

presidential records during his term of office”). The Circuit’s limited carve out from that blanket

rule is not applicable to this case, at least at this juncture. See Armstrong II, 1 F.3d at 1294

(permitting “review [of] guidelines outlining what is, and what is not, a ‘presidential record’ to

ensure that materials that are not subject to the PRA are not treated as presidential records”).

Despite the Court’s inability to evaluate Defendants’ compliance with the PRA, the Court

would be remiss to omit their representations of efforts to manage Commission documents.

Regarding document preservation, as indicated above, certain “Commission documents and

records remain publicly accessible on the former Commission’s public webpage,” while “[n]on-

public Commission records will continue to be maintained as Presidential Records.” 2d Decl. of

Charles C. Herndon, ECF No. 39-2, ¶ 5. And again, with the exception of certain administrative

text messages, “all records reflected on the Vaughn-like index [filed in Lawyers’ Committee] have

been preserved either physically . . . at the Executive Office of the President or on the computer

network maintained by the Director of White House Information and Technology and his staff.”

Decl. of Philip C. Droege, ECF No. 44-1, ¶ 3.

As far as document transfer, “no Commission records or data will be transferred to the

DHS or another agency, except to NARA, if required, in accordance with federal law.” 2d Decl.

of Charles C. Herndon, ECF No. 39-2, ¶ 5. In particular, “[t]he state voter data has never been,”

and “will not be transferred to, or accessed or utilized by, DHS or any other agency, except to

29
[NARA], pursuant to federal law, if the records are not otherwise destroyed.” Id. ¶ 4. 15 As with

all of their affidavits in this case, the Court shall hold Defendants responsible for following through

with their representations, in particular here that they will not transfer Commission records or data,

including the state voter data. A magistrate judge handling another Commission case also was

persuaded in part by similar representations as to state voter data. See Joyner v. Presidential

Advisory Comm’n on Election Integrity, Case No. 17-22568-CIV-Cooke/Goodman, 2018 WL

1863751, at *1, *8-*9, *12-*13 (S.D. Fla. Feb. 6, 2018) (issuing recommendation that district

judge deny preliminary relief of “prevent[ing] the now-terminated [Commission] and other federal

defendants from transferring or using voter registration information and other data that the

Commission collected or otherwise obtained from the states”).

Defendants make separate representations specific to Plaintiff’s ancillary request,

indicating that they have attempted to control the unofficial flow of Commission records as well.

What defendants are doing to preserve the status quo is to request that the former
Commission members not share Commission records with other entities. The White
House Office of Records Management is sending all the former Commission
members a letter requesting that they not independently transfer non-public
Commission records to DHS or any other entity. Counsel from the White House
Counsel’s Office has also reached out to Mr. Kobach in his personal capacity,
requesting that he not share with the Department of Homeland Security or any other
federal entity, other than the White House for preservation purposes, any
Commission records not otherwise made public, during the pendency of the
plaintiff’s motion. Secretary Kobach has agreed to that request.

TRO Ancillary Issue Opp’n at 14. The White House has tried to collect any Commission

documents—official or otherwise—that it does not yet have. Philip C. Droege, the Director of the

White House Office of Records Management, has attested to such undertakings. See Decl. of

15
Mr. Herndon has also confirmed that “[n]o Commission member was provided access to the
state voter data prior to the Commission’s termination and none has access now.” 2d Decl. of
Charles C. Herndon, ECF No. 39-2, at 2.
30
Philip C. Droege, ECF No. 44-1, ¶¶ 3-4 (indicating that Mr. Droege would be “sending a letter to

all former Commissioners instructing them to forward to [his] office any documents that they

created or received regarding Commission work that they [had] not already sent to the White

House, to include [certain] text messages” regarding “administrative topics like scheduling” that

had not previously been collected (internal quotation marks omitted)); Subpoena Opp’n at 2-3

(confirming that Mr. Droege sent this letter to all former commissioners, including Plaintiff and

Mr. Kobach); Subpoena Opp’n Ex. A, ECF No. 49-1 (containing Plaintiff’s copy of

aforementioned letter sent by Mr. Droege).

It is true that those representations do not cover all eventualities. For example, Defendants

make no commitments regarding documents that former commissioners may have that have not

yet been provided to the White House. Plaintiff objects to the implications of Defendants’

argument that former commissioners, such as Mr. Kobach, are neither party to this case any longer

nor subject to compulsion by Defendants now that the Commission has terminated. See, e.g., TRO

Ancillary Issue Opp’n at 3-4 (asserting that “individual former Commission members [who were

sued only in official capacity] are no longer defendants as soon as they no longer have an official

capacity”); TRO Ancillary Issue Reply at 3 (arguing that “the Government now takes the

position . . . that the best the Government can do is make a non-binding and non-enforceable

‘request’ . . . that the individual commissioners forward documents for preservation to the White

House”). Plaintiff also notes that Mr. Droege seems to make no representation about maintenance

of Commission documents generated after the Vaughn-type index was filed on September 29,

2017, in the Lawyers’ Committee litigation. See TRO Ancillary Issue Reply at 2-4; Decl. of Philip

C. Droege, ECF No. 44-1, ¶¶ 3-4 (appearing to explain such an omission by reference to “no

further meetings of the Commission” between its September 2017 meeting and its January 2018

31
termination). Plaintiff evidently fears the destruction of documents wherever Defendants have not

expressly represented that they are ensuring preservation.

The Court is of the view that the President and Vice President must preserve more than

what is listed on the Vaughn-type index, which purports to represent only the entitlement of the

public to certain Commission documents at a specific point in time. It would seem that all

Commission materials should be provided to the Archivist, whether during or upon the conclusion

of this Administration, with the Archivist ultimately playing a significant role in determining what

is to be preserved and released after the end of the Trump Administration. See, e.g., 18 U.S.C.

§ 2203(f) (giving President (and Vice President) the option during Administration to entrust

maintenance and preservation to Archivist); id. § 2203(g) (turning all responsibility over to

Archivist after Administration). But the Court shall opine no further, because Armstrong I

prohibits this Court from evaluating whether the President and Vice President are fulfilling their

obligations under the PRA with respect to Commission documents. 16

Even if the Court were not prohibited, the Court is not persuaded that this case, at least in

its current posture, is the appropriate vehicle for adjudicating the President’s obligations under the

PRA to maintain Commission documents. The operative [1] Complaint chiefly concerns

Plaintiff’s role on the Commission. That Complaint does not—and could not at the time—make

claims about post-termination management of Commission documents.

For the foregoing reasons, Plaintiff is not likely to succeed on the merits of his attempt to

16
Because the Court finds that the President and Vice President are generally responsible for
Commission records under the PRA, the Court need not reach Plaintiff’s arguments about the
extent of judicial power over former commissioners who may hold some documents, or copies
thereof. See, e.g., TRO Ancillary Issue Mem. at 4-5 (asserting that Court has authority over
commissioners in “active concert or participation with” Defendants (quoting Fed. R. Civ. P. 65(d)
(internal quotation marks omitted)). The Court also need not reach Defendants’ opposing
arguments concerning, e.g., due process. See, e.g., TRO Ancillary Issue Opp’n at 10-11.
32
establish a right to intervene in the management of documents after the termination of the

Commission, insofar as he seeks an order to preserve them (request (1)), a role in activities

regarding their disposition (request (2), in pertinent part), a role in discussions about their transfer

(request (3)), or an injunction against their transfer (request (4), and the ancillary request). Plaintiff

was appointed to serve as a commissioner of a now-defunct commission; that appointment did not

include an invitation to linger on afterwards—if Plaintiff thought necessary—as a de facto member

of the White House records management team.

One further word must be said about Plaintiff’s ancillary request. Defendants argue that

the Court is without jurisdiction over former Commission officials, such as Mr. Kobach.

Defendants cite a ream of cases, most of which are not persuasive authority, for the proposition

that suit cannot proceed against a former official who was sued only in his or her official capacity.

See TRO Ancillary Issue Opp’n at 4. The Court shall shortly consider this issue to some degree in

the context of the Subpoena Motion, but the Court need not reach it here. The Court has resolved

the document management requests in the TRO, including the ancillary request, on the grounds

that Plaintiff does not have a right to insert himself into the post-dissolution management of

Commission records, as this process is governed by the PRA. The Court need not evaluate

Defendants’ assertion that “any dissemination [of Commission materials] by the now-

decommissioned individuals [who formerly were Commission members] would not violate the

Presidential Records Act or any other statute of which defendants are aware.” Id. at 1. That is an

issue of Defendants’ interpretation of their PRA obligations, which the Court is unlikely, under

Armstrong I, to be permitted to address. In any event, unofficial dissemination of the defunct

Commission’s materials is an issue not properly before this Court on the operative [1] Complaint.

The issue of how to handle any copies of Commission documents that may reside with former

33
commissioners alone is likewise an issue of Defendants’ compliance with the PRA that the Court

is not in a position to address. See TRO Ancillary Issue Reply at 4 (arguing that the United States’

“complete ownership” of Presidential records requires that individual commissioners return their

copies of such documents (citing 44 U.S.C. § 2202 (internal quotation marks and emphasis

omitted))). The Court’s finding that Plaintiff has no role in the document management he seeks

means that the Court need not separately decide whether it still has jurisdiction over certain

individuals who may have relevant documents but purportedly are no longer Defendants.

b. Irreparable Harm, Balance of Equities, and the Public Interest

Plaintiff has likewise failed to persuade the Court that he should prevail on the other

elements of the test for a TRO. The Court need not re-hash its above description of Defendants’

obligations under the PRA and their representations of efforts to comply. When Defendants are

charged with, inter alia, maintaining Commission records pursuant to the PRA, Plaintiff is not

likely to sustain the irreparable harm, in the absence of a TRO, of alleged destruction of those

documents. Nor could Plaintiff be irreparably harmed by an inability to participate in document

management decisions, TRO Mem. at 8, when the President and Vice President, not Plaintiff, are

charged with management of those documents.

Plaintiff will still “‘obtain[ ] in a timely fashion information vital to the current and ongoing

debate’ surrounding election and voter fraud,” TRO Mem. at 9 (quoting Elec. Privacy Info. Ctr. v.

Dep’t of Justice, 416 F. Supp. 2d 30, 41 (D.D.C. 2006)), through the Court’s decision to enforce

its preliminary injunction. Accordingly, Plaintiff’s interest in participating in public dialogue—

assuming arguendo that such an interest is a legitimate consideration in this analysis—will be

vindicated to the extent that the Court has found that he is entitled to some documents that would

support that participation. This interest alone does not entitle him to the further document

34
management he seeks in his TRO.

Plaintiff could be irreparably harmed if documents containing any “findings” or “report”

were destroyed, inhibiting his ability to respond to them, as contemplated by the Court’s denial of

Defendants’ Motion to Reconsider. But it is not plausible that any such findings or report will be

destroyed while this litigation is pending, for at least three reasons.

First, Defendants’ preservation initiatives are very likely to encompass any such findings

or report, which presumably would be easily identified as Commission documents subject to

preservation under the PRA, rather than peripheral documents at some risk of routine purge—

absent litigation hold—or documents residing only in the possession of a former commissioner.

See Notice of Correction to the Record, ECF No. 37, at 2 (conveying Defendants’ representation

that “documents are being preserved in accordance with the litigation holds in place in this and

other related litigation, and in any event are being preserved in accordance with the Presidential

Records Act”); TRO Ancillary Issue Mem. Ex. 1, ECF No. 42-1 (containing January 3, 2018, email

from Andrew Kossack, Designated Federal Officer for the Commission, informing members of

Commission’s termination and reminding them of August 4, 2017, Litigation Hold Notice).

Second, the President’s press secretary had indicated that the “initial findings” would be

passed to DHS. Statement, The White House, supra. Transfer entails preservation somewhere.

And finally, the affidavit from Mr. Herndon, the Director of White House Information

Technology, that disavows “creat[ion] [of] any preliminary findings”—limited though this

representation may be—suggests that no official Commission findings (and, accordingly, no report

encompassing them) exist anyway. See 2d Decl. of Charles C. Herndon, ECF No. 39-2, ¶ 5.

Accordingly, no transfer could take place. If that were not enough, Defendants’ declaration

confirms that no transfer to an agency (other than NARA, if necessary) will occur. Id. Defendants

35
also indicate that Mr. Kobach agrees not to make such a transfer either of any non-public

documents in his possession. TRO Ancillary Issue Opp’n at 14. However, the Court mentions

Mr. Kobach’s assurance only for completeness. The Court does not rely on Defendants’

representation of Mr. Kobach’s assent because the Court has not decided whether it still has

jurisdiction over Mr. Kobach. Even if it did have jurisdiction, the Court has found that the

President and Vice President—but not Plaintiff—are responsible for managing Commission

documents pursuant to the PRA.

The balance of equities tips in favor of Defendants as well. As a former commissioner,

Plaintiff has a general interest in the maintenance of documents created by the former Commission.

That interest is reinforced by the Court’s December 22, 2017, decision recognizing that Plaintiff

is entitled to certain documents of which he has been deprived. But when it comes to management

of documents after the Commission’s termination, Defendants have a concrete interest in

complying with document maintenance obligations imposed by the PRA. The Court is disinclined

to interfere with Defendants’ statutory obligations for the sake of Plaintiff’s interest, which is

loosely connected to the Court’s own preliminary injunction. Moreover, the Court’s denial of

Defendants’ Motion to Reconsider the preliminary injunction should vindicate the rights that

Plaintiff does have regarding Commission documents; the scope of his legitimate interest in this

further relief, in light of the foregoing discussion, is minimal.

The public’s interest in this dispute is to ensure that pertinent documents concerning the

Commission’s life and work survive to see the light of day. Defendants’ obligations under the

PRA, coupled with their representations in this case, assure the Court that the public interest will

be protected. The Court is not persuaded that the public interest will be better served by issuing a

TRO that the Court does not otherwise find to be justified than by the alternative: enforcing the

36
Court’s preliminary injunction with its more limited scope and ultimately resolving the remainder

of this dispute on the merits.

The foregoing analysis demonstrates that Plaintiff has not carried his burden to prove that

he is entitled to a TRO granting him the document management relief that he requests.

2. Plaintiff’s Participation in Commission Wind-Down Activities

As part of his request (2), Plaintiff seeks a Court order compelling “Defendants to permit

Secretary Dunlap to fully participate, on an equal basis as any other commissioner, in all remaining

Commission activities, including but not limited to the winding down of the Commission.” Pl.’s

Appl. for a TRO, ECF No. 35, at 2. Plaintiff represents the wind-down aspect as a subcomponent

of any “remaining Commission activities.” The Commission is no more, however, and so there

are no further Commission activities as such. The Court considers only Plaintiff’s request

specifically to participate in wind-down activities, and only insofar as any such activities can

remain after dissolution of the Commission.

Setting aside decisions about documents and data, which the Court elsewhere considers, it

is not clear what kind of wind-down activities remain (or remained at the time Plaintiff’s TRO

Application was filed). The Court shall not specifically fault Plaintiff where details of any such

wind-down may reside only with Defendants, but the absence of detail does undermine his ability

to discharge his burden.

Plaintiff is not likely to succeed on the merits of proving that he should be allowed to

participate in any wind-down. Just as Plaintiff’s appointment to the Commission did not entail an

informal appointment to the White House records team after his service, so he was not informally

deemed an official of the EOP or OVP who is now responsible for any remaining wind-down.

Cummock did not create any such entitlement. It is unclear, too, how Plaintiff could be irreparably

37
harmed by depriving him of a right to participate in the wind-down of a defunct organization of

which he is no longer a member by operation of the organization’s status. The documents are

properly his concern, and the Court elsewhere deals with those. Defendants’ legitimate interest in

wrapping up the affairs of the Commission in an orderly fashion clearly outweighs the interest of

Plaintiff, now a member of the public, in intervening on some grounds.

The public’s interest here is rather ambiguous. The Court supposes that the American

people would be concerned more with the former Commission’s documents than with any wind-

down that does not in some way concern those documents. The potential caveat is decisions about

who should carry the torch, as it were, of further inquiry into election integrity. If Plaintiff is any

indication, the public would be interested in those decisions. But the determination of whether

DHS or another agency, if any, continues to perform work that the Commission had engaged in

during its existence is a decision for the President, who constituted the Commission, not for the

Plaintiff.

Plaintiff has not established a preliminary entitlement to participate in wind-down of the

former Commission’s affairs.

3. Injunction Against Dissemination or Publication of a Report or Findings Until
Plaintiff Has Had an Opportunity to Respond

In his request (5), Plaintiff would have the Court “enjoin[ ] Defendants from disseminating

or publishing any initial, preliminary, or final findings or report of the Commission until such time

as Secretary Dunlap has been provided with all Commission documents to which he is entitled,

given a meaningful opportunity to participate in deliberations that lead to the findings, and has

been given a reasonable amount of time in which to draft comments, a concurrence, or dissent to

the findings or report.” Pl.’s Appl. for a TRO, ECF No. 35, at 2.

38
 Of the claims in his TRO, this one comes closest to the scenario that occurred in Cummock

and was the concern of this Court in its December 22, 2017, Order. In each instance, a commission

concluded without permitting a commissioner to fully participate in its proceedings along the way.

But the crucial difference is that the Cummock commission had produced a final report before its

doors were closed. The plaintiff commissioner had dissented from that report, but the Court of

Appeals recognized a further right to amend her dissent upon receiving any information to which

she was entitled but had been denied. See Cummock, 180 F.3d at 286-87, 292-93. There is no

published majority report here, unlike in Cummock. And it is not clear that any findings have been

circulated either. Nor has the state data been consulted.

Even though some type of report, or underlying findings, may lurk in the non-public

Commission documents, the Court finds that an injunction against their dissemination or

publication is either unnecessary, or at least still premature. See Dunlap, 286 F. Supp. 3d at 109

(“The request to temporarily enjoin the final report is similarly premature, insofar as it assumes

that Defendants will not provide the required documents in a timely fashion.”). First, there is no

Commission left to carry out the Commission’s obligation to issue a report to the President. See

May 11, 2017 Exec. Order § 3 (“The Commission . . . shall submit a report to the President . . . .”).

Second, although Defendants did not follow through by providing the documents compelled by

the preliminary injunction in a timely fashion, the Court today enforces their compliance. Plaintiff

will be able to vindicate his right to fully participate by reviewing—and, if need be, responding

to—the documents contained in Defendants’ forthcoming production. Lastly, the Court reiterates

that, in the period since briefing concluded, the parties have not given any indication that

Defendants may move forward with a report or findings. Accordingly, Plaintiff is not likely at this

39
time to succeed on the merits of a claim that he is entitled to an injunction against dissemination

or publication of a report or findings.

Nor is there any appreciable likelihood of irreparable harm. Defendants’ representations

render it unlikely that Defendants have any findings or report to release, and likewise unlikely—

recall the “endless legal battles” to which the press secretary expressly adverted—that they would

do so pending the merits in this case, if not also in others. Plaintiff’s ability soon to consult the

documents compelled by the Court’s December 22, 2017, preliminary injunction further

diminishes any likelihood that he would be prejudiced by denying this additional injunction.

Neither side of this dispute appears to have markedly greater equities here. Plaintiff’s

desire to prevent dissemination or publication of findings or a report to which he could not fully

contribute is a legitimate one. He still has an “interest in contributing his unique perspective” to

the Commission to which he was appointed, and “gaining the ‘recognition and even prestige’ of

full participation in such a commission.” Dunlap, 286 F. Supp. 3d at 110 (quoting Cummock, 180

F.3d at 292). But Plaintiff will have his opportunity, under the December 22, 2017, preliminary

injunction, to review Commission documents to see whether there are any informal findings or

draft report on which he wishes to informally comment in the public square. See TRO Mem. at

10 (arguing that Plaintiff “is still entitled to draft and publish a ‘dissent incorporating [his] fully

enlightened views’ responding to the statements published in the press by President Trump and

Vice-Chair Kobach” (citing Cummock, 180 F.3d at 293)). For their part, Defendants of course

would want to avoid the imposition of an expansive further injunction, especially when the

injunction which the Court shall now enforce may ultimately have the same effect. Even if

Plaintiff’s equities were greater than Defendants’, prevailing on this prong would not make up for

40
Plaintiff’s inability to carry his burden as to the likelihood of success or likelihood of irreparable

harm.

The public’s interest would seem to lie in efficient resolution of this matter, together with

the release of any Commission documents evidencing informal findings or a draft report. Without

a greater showing that findings or a report likely exist, in the Court’s view the public is better

served by avoiding duplicative orders in the interest of focusing on the document production to

which Plaintiff is entitled.

Plaintiff cannot discharge his burden on this claim either.

4. Order to Comply with the Court’s December 22, 2017, Order

Lastly, in his request (6), Plaintiff asks the Court to “order[ ] Defendants to produce without

further delay the documents required by the Court’s December 22, 2017 Order and requested in

Secretary Dunlap’s January 4, 2018 letter to counsel for Defendants.” Pl.’s Appl. for a TRO, ECF

No. 35, at 2. It is not clear whether this request seeks more than the preliminary injunction entitles

Plaintiff to, and for the reasons set forth above, Plaintiff is not likely to succeed in proving that he

is entitled to more than that. The Court supposes that the request to “produce without further

delay,” attempts to add some urgency to the Court’s preliminary injunction. But because the

Court’s Order accompanying this Memorandum Opinion shall add that urgency by other means,

Plaintiff is not likely to be irreparably harmed by denial of this request in the TRO. The balance

of equities tilts in favor of subjecting Defendants to only one Court order pertaining to the Court’s

December 22, 2017, Order, namely that Order itself, unburdened by this more-or-less redundant

command. Plaintiff’s interest is served by other means, chiefly enforcement of the December 22,

2017, preliminary injunction. The public’s interest in ensuring that the documents ordered by the

Court are produced will be vindicated without this further command. The Court finds that Plaintiff

41
is not entitled to this essentially redundant preliminary relief in light of the Court’s decision to

deny Defendants’ Motion to Reconsider the preliminary injunction. Plaintiff might in any event

agree that such further relief is moot.

C. Motion for Leave to Serve Subpoena

Plaintiff seeks leave to serve a subpoena on Mr. Kobach that would require him to preserve,

or produce at an unspecified future time, any Commission-related documents in his possession.

Subpoena Mem. at 1, 10. It is not fully clear whether Plaintiff intends such a subpoena to apply

solely during the pendency of Defendants’ Motion to Reconsider, or rather throughout the

pendency of the merits of this case. See id. at 6 (arguing that “there is a strong likelihood . . . that

the White House is not in possession of all documents to which the Court’s December 22 Decision

applies, or which might otherwise be relevant to this litigation” (emphasis added)). Erring on the

side of caution, the Court assumes the latter. Even upon denial of the Motion to Reconsider,

Plaintiff presumably would be interested in the preservation of documents by Mr. Kobach,

particularly because the Court has not decided whether Mr. Kobach remains a Defendant in this

matter. The Court again finds the issue of Mr. Kobach’s status in this case to be not properly

before the Court in this posture—rather than in a motion to dismiss—but the Court need not resolve

it in order to dispose of the present motion.

Ordinarily, the Court would consider whether Plaintiff’s request for leave to serve a

subpoena satisfies Rule 45’s “undue burden” standard, to which Rule 26 adds additional

limitations that are standard in the discovery context. See Watts, 482 F.3d at 509. But Plaintiff’s

request arrives before this Court has held an initial scheduling conference with the parties pursuant

to Federal Rule of Civil Procedure 16(b) and discussed the parameters of discovery. Generally

such expedited discovery is not permissible, though the Court may grant an exception. See Fed.

42
R. Civ. P. 26(d) (recognizing that early discovery exceptions include court approval). The decision

not to permit expedited discovery is, of course, also squarely within the Court’s broad discretion.

See Watts, 482 F.3d at 507 (quoting Crawford–El, 523 U.S. at 598) (indicating that Rule 26 “vests

the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of

discovery”). The Court shall proceed to consider Plaintiff’s purported grounds for obtaining

expedited discovery. Only upon a finding that expedited discovery is warranted would the Court

turn to assess under Rule 45 (and Rule 26) the burden that such discovery would impose on Mr.

Kobach.

At the threshold, the Court observes that the Federal Rules expressly permit a document

production subpoena but do not provide for a document preservation subpoena. See Fed. R. Civ.

P. 45(a)(1)(A)(iii) (including among a seemingly exhaustive list of potential subpoena contents a

command to “produce designated documents, electronically stored information, or tangible things

in that person’s possession, custody, or control” (emphasis added)). Plaintiff’s argument

effectively admits as much:

[T]here is no reason why the authority of district courts to permit the issuance of a
document production subpoena pursuant to Rule 45 should not also encompass the
lesser authority to issue a document preservation subpoena where appropriate,
which would impose a lesser burden on the third party than production.

Subpoena Mem. at 5. Plaintiff urges the Court to bootstrap the authority of Rule 45 into permitting

what that rule does not expressly provide, citing two strands of case law in support.

Plaintiff’s first context for a document preservation subpoena is litigation under the Private

Securities Litigation Reform Act (“PSLRA”). Id. at 4. That statute requires that “all discovery

and other proceedings shall be stayed during the pendency of any motion to dismiss [in covered

private securities litigation], unless the court finds upon the motion of any party that particularized

discovery is necessary to preserve evidence or to prevent undue prejudice to that party.” 15 U.S.C.

43
§ 78u-4(b)(3)(B). But FACA contains no comparable provision for staying discovery subject to

exceptions. Nor does this case raise the kind of concerns that prompted Congress to address

discovery in legislation specific to securities litigation. See In re Vivendi Universal, S.A. Sec.

Litig., 381 F. Supp. 2d 129, 129-30 (S.D.N.Y. 2003) (articulating Congress’s interest in preventing

securities class actions that seek discovery to fish for plausible claims).

Apart from the PSLRA context, Plaintiff offers two out-of-circuit decisions that permitted

document preservation subpoenas. See Subpoena Mem. at 5 (citing District of Columbia v. Trump,

No. 17-cv-1596 (D. Md. Nov. 28, 2017), ECF No. 64; Johnson v. U.S. Bank Nat’l Ass’n, 2009

U.S. Dist. LEXIS 120111, at *1 (S.D. Ohio Dec. 3, 2009)). Neither involved FACA or the PRA,

however. And one, District of Columbia v. Trump, is a boilerplate order omitting all substantive

reasoning entirely. Johnson, on the other hand, found that the preservation subpoena was

warranted under a good cause standard, in a case in which the operations of the third party at issue

had been dormant for more than three years. Johnson, 2009 U.S. Dist. LEXIS 120111, at *1

(reciting the plaintiff’s concern that “critical records and databases [could be] destroyed, lost, or

otherwise despoiled”). The specific target of Plaintiff’s Subpoena Motion, Mr. Kobach, is not an

institutional entity as in Johnson, nor is Mr. Kobach—in contrast with the Commission—

“dormant” in a comparable way. Nevertheless, below the Court shall evaluate, under the standards

applicable in this jurisdiction, whether Plaintiff is entitled to expedited discovery based on his

concern that Mr. Kobach could destroy documents.

That said, resolution of Plaintiff’s request should not require much more than the principles

articulated elsewhere in this Opinion. Now that the Commission has been terminated, the

disposition of Commission documents is generally governed by the PRA, which for present

purposes is beyond the scope of judicial review. Commission documents are also subject to the

44
Court’s December 22, 2017, preliminary injunction, of course, which impliedly requires document

preservation to facilitate compliance. If any Commission documents have been destroyed

following the issuance of that preliminary injunction, and if the Court determines that Plaintiff was

entitled to such documents under the injunction, then Defendants could well be subject to a finding

of contempt for failure to comply with obligations created by that injunction. 17 Defendants,

particularly the EOP and OVP, would be wise to do all within their power to preserve documents

in accordance with the PRA and the December 22, 2017, preliminary injunction. If they are not

confident that they can comply through the combination of efforts that they have represented to

the Court, then they ought to go further, e.g., to issue a subpoena of their own to the individual

former commissioners. Perhaps their proposal of replevin could be appropriate as well. See TRO

Ancillary Issue Opp’n at 13 (citing, e.g., Jackson v. United States, 248 F. Supp. 3d 167, 170 n.2

(D.D.C. 2017)).

With this in mind, the Court shall consider the two tests for expedited discovery that courts

in this Circuit have typically applied when determining whether to grant a request for expedited

discovery: the Notaro test and a reasonableness, or good cause, test. See, e.g., Disability Rights

Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 234 F.R.D. 4, 6 (D.D.C. 2006)

(describing these as the “commonly recognized approaches”). Plaintiffs seeking expedited

discovery under the Notaro test should prove

(1) irreparable injury, (2) some probability of success on the merits, (3) some
connection between the expedited discovery and the avoidance of the irreparable
injury, and (4) some evidence that the injury that will result without expedited
discovery looms greater than the injury that the defendant will suffer if the
expedited relief is granted.

17
Any argument that Defendants should be absolved by virtue of seeking reconsideration of that
injunction would not obviate their obligation to preserve documents in the event that
reconsideration were denied, as it now has been.
45
Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982). Courts applying the more lenient

reasonableness test evaluate the “reasonableness of the request in light of all of the surrounding

circumstances.” Guttenberg v. Emery, 26 F. Supp. 3d 88, 98 (D.D.C. 2014) (quoting In re Fannie

Mae Derivative Litig., 227 F.R.D. 142, 142-43 (D.D.C. 2005)) (internal quotation marks omitted).

Colleagues in this Circuit have recently found that the reasonableness “approach [is] more

suited to the application of the Court’s broad discretion in handling discovery,” id. at 97-98, than

the older Notaro approach adapted from the preliminary injunction standard, Notaro, 95 F.R.D. at

405 n.4. See also Legal Tech. Grp., Inc. v. Mukerji, Civil Action No. 17-631 (RBW), 2017 WL

7279398, at *2 (D.D.C. June 5, 2017) (opting for reasonableness standard); Attkisson v. Holder,

113 F. Supp. 3d 156, 161-62 (D.D.C. 2015) (same); True the Vote, Inc. v. IRS, No. 13-734 (RBW),

2014 WL 4347197, at *7 (D.D.C. Aug. 7, 2014) (same). An inexhaustive set of guidelines for the

reasonableness inquiry includes: “(1) whether a preliminary injunction is pending; (2) the breadth

of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden

on the defendants to comply with the requests; and (5) how far in advance of the typical discovery

process the request was made.” Guttenberg, 26 F. Supp. 3d at 98 (quoting In re Fannie Mae

Derivative Litig., 227 F.R.D. at 142-43) (internal quotation marks omitted). This Court likewise

adopts the reasonableness test, recognizing that it is not only more consonant with the Court’s

discretion in discovery matters in general but also more consistent with the good cause standard

for issuing a protective order, an arguably analogous context. See Fed. R. Civ. P. 26(c)(1).

Whether the Court contemplates a document preservation subpoena or, in the alternative,

a document production subpoena, the reasonableness inquiry is largely the same, though the Court

shall differentiate as needed. First, the preliminary injunction entered on December 22, 2017,

militates against a further order compelling document preservation or production. The Court’s

46
enforcement of this injunction in short order shall ensure that the documents to which Plaintiff is

entitled are furnished by Defendants.

Plaintiff’s sprawling list of nineteen specific document categories likely would render

compliance with this subpoena rather difficult, even assuming Mr. Kobach has diligently

maintained the documents at issue. See List of Documents to Be Preserved and/or Produced

Pursuant to Subpoena, ECF No. 48-6, at 3-5. And it is not clear that Plaintiff even would be

entitled to all of the documents that he seeks to subpoena. For example, he may not be entitled to

all of the “Documents concerning . . . how Documents should be treated upon the Commission’s

closure or termination,” id. at 5, if some of those documents concern the President’s or Vice

President’s document management obligations under the PRA.

While Plaintiff wants this subpoena to prevent document destruction, it is not clear that he

has anything substantial to fear. Plaintiff evidently presumes that some Commission documents

reside with Mr. Kobach, or others, that have not been collected by the President’s or Vice

President’s records management staff. See Subpoena Mem. at 6 (“[T]here is a strong likelihood—

undisputed by DOJ—that the White House is not in possession of all documents to which the

Court’s December 22 Decision applies, or which might otherwise be relevant to this litigation.”).

But see Subpoena Opp’n at 2 (describing Defendants’ September 2017 records collection efforts).

Plaintiff would have to believe that Mr. Kobach did not comply with PRA training in July 2017 in

which the commissioners were “instructed to copy the Commission’s former Designated Federal

Officer [Andrew Kossack], or the Commission’s email account, on all communications.”

Subpoena Opp’n at 2. Plaintiff’s motion further assumes that Mr. Kobach will not comply with

litigation holds in this and related litigation. See Notice of Correction to the Record, ECF No. 37,

at 2; TRO Ancillary Issue Mem. Ex. 1, ECF No. 42-1. And Plaintiff’s request also assumes that

47
Mr. Kobach will not forward his documents to the records management staff as they requested

after the Commission’s termination. 18 See Decl. of Philip C. Droege, ECF No. 44-1, ¶¶ 3-4

(describing this plan); Subpoena Opp’n at 2-3 (confirming that letter was sent); Subpoena Opp’n

Ex. A, ECF No. 49-1 (containing Plaintiff’s copy of this letter). This series of assumptions sallies

beyond reasonableness.

The Court is aware that Mr. Kobach’s reputation for candor to the tribunal and compliance

with its orders is less than sterling. See Subpoena Mem. at 7-8 (citing Fish v. Kobach, 267 F. Supp.

3d 1297, 1303 (D. Kan. 2017) (upholding sanctions against Mr. Kobach, in capacity as Secretary

of State for the State of Kansas, for misleading statements to magistrate judge), appeal dismissed,

No. 17-3161, 2017 WL 7065741 (10th Cir. Aug. 30, 2017)); Fish v. Kobach, 294 F. Supp. 3d 1154,

1168-69 (D. Kan. 2018) (granting motion for contempt and imposing sanctions against Secretary

Kobach for his failure to ensure compliance with court orders), appeal dismissed, No. 18-3094

(10th Cir. May 22, 2018); Fish v. Kobach, Case Nos. 16-2105-JAR-JPO, 15-9300-JAR-JPO, 2018

WL 3017768, at *55 (D. Kan. June 18, 2018) (imposing further sanction for Secretary Kobach’s

“pattern and practice . . . of flaunting disclosure and discovery rules”). But the Court is not

prepared to assume that Mr. Kobach would disregard the White House’s requests when other

Defendants—and he too, if the Court finds that he remains a Defendant—are at risk of contempt

if they irresponsibly lose documents to which the Court finds that Plaintiff was entitled under the

December 22, 2017, Order. Should it come to light that Mr. Kobach has Commission documents

that he has not provided to other Defendants, and that other Defendants do not have their own

18
Defendants also represent that Mr. Kobach “has already sent a number of records to the former
Commission.” Subpoena Opp’n at 10. But, as Plaintiff observes, it is unclear whether he sent
those pursuant to the Commission’s September 2017 records collection effort, during the
remaining life of the Commission, or in response to the latest collection efforts. Subpoena Reply
at 6 n.3.
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copies of such documents, then Plaintiff may seek further relief from this Court as appropriate.

The burden of compliance with this subpoena could be significant. That burden might not

fall on Defendants, per se, as Guttenberg suggests that the Court consider. But for these purposes,

it is appropriate to consider the potential burden on Mr. Kobach himself, whether or not he remains

a Defendant. Mr. Kobach would have to go to the effort of ensuring that every document

responsive to all nineteen of Plaintiff’s categories is safeguarded for preservation or production.

Plaintiff’s subpoena would further burden Mr. Kobach because its boilerplate definitions are

expansive. They dictate that the term “Document(s)” be interpreted “in the broadest possible sense

as interpreted under the Federal Rules of Civil Procedure . . . whether in hard copy, handwritten,

printed, electronic, or other form.” List of Documents to Be Preserved and/or Produced Pursuant

to Subpoena, ECF No. 48-6, at 1 (emphasis added). Actual production of those documents, if the

Court granted the Subpoena Motion in that form, would entail further time and expense. Even

though Plaintiff has offered to permit Mr. Kobach to produce the documents at a later date in such

a circumstance, Subpoena Mem. at 10, Mr. Kobach still would have to shoulder the burden of

isolating all documents that may be responsive to Plaintiff’s request.

And this request comes well in advance of typical discovery. Defendants have yet to file a

response to Plaintiff’s [1] Complaint. See Min. Order of Jan. 10, 2018 (staying this obligation

until further order). It is unknown whether the Court shall be able to proceed shortly upon

Defendants’ filing of an answer or whether the Court shall need to entertain briefing of a motion

to dismiss.

The Court finds that, for the manifold reasons above, Plaintiff has not carried his burden

of persuading the Court that it would be reasonable to grant expedited discovery in the form of

leave to serve a subpoena on Mr. Kobach.

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 D. Request for Stay Pending Appeal

As part of their Motion to Reconsider, Defendants seek a stay pending a possible appeal if

the decision is not in their favor. MTR Mem. at 12-13. Presumably their request would fall within

the scope of Rule 62(c) if they had already filed their appeal. See Fed. R. Civ. P. 62(c) (“While an

appeal is pending from an interlocutory order . . . that grants . . . an injunction, the court may

suspend . . . an injunction . . . .”). They argue that permitting Plaintiff now to have the documents

at issue would effectively prohibit Defendants from seeking appellate review of this decision. Id.

(citing, e.g., People for the Am. Way Found. v. U.S. Dep’t of Educ., 518 F. Supp. 2d 174, 177

(D.D.C. 2007) (citing John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1308-09 (1989)

(Marshall, J., in chambers))). But neither side adequately briefs the application of the basic four-

factor standard for a stay pending appeal. See Cuomo, 772 F.2d at 974. Accordingly, the Court

forges ahead with its application of that Cuomo standard largely based on its own examination of

the relevant authorities.

First, Defendants have not sustained their burden to prove a likelihood of success on

appeal. In its December 22, 2017, decision, the Court found that Cummock entitles Plaintiff to the

documents at issue. Today the Court has determined that dissolution of the Commission does not

entitle Defendants to reconsideration of the preliminary injunction. It follows from those two

decisions that the Court views Defendants as unlikely to succeed on appeal. It is true that a “serious

legal question” could help tip the scales on this factor when the likelihood of success on appeal is

low. See Al–Anazi, 370 F. Supp. 2d at 193 & n.5. But that option is available only where the

movants would otherwise prevail on the harm prong, see id., which the Court shall find below is

not the case here. See also In re Special Proceedings, 840 F. Supp. 2d 370, 372 (D.D.C. 2012)

(citing, e.g., Holiday Tours, Inc., 559 F.2d at 844) (finding that “serious legal question” standard

50
replaces likelihood of success on the merits “only when the other three factors tip sharply in the

movant’s favor”). The fact that the likelihood of success and irreparable harm prongs are subject

to a sliding scale, see Cuomo, 772 F.2d at 974, does not, of course, mean that the movants can

avoid the conclusion that they failed to adequately prove both of them.

Defendants argue that enforcement of the preliminary injunction before they could seek

appellate review would work irreparable damage, MTR Mem. at 13, but their reasoning appears

to apply, at most, to only a subset of the documents at issue. Of note, Defendants say nothing

about any privileged, classified, or otherwise sensitive documents in the portion of their Motion to

Reconsider requesting a stay pending appeal. See supra note 6 (citing Cummock, 180 F.3d at 293

(Rogers, J., concurring)). Rather, Defendants elsewhere point to the “sensitive and privileged

information” contained in “forward-looking documents related to the disposition of data collected

by a now-dissolved Commission.” MTR Mem. at 12 (asserting that Plaintiff’s “request would

insert a non-federal employee into sensitive internal government discussions about the proper

disposition of records in compliance with federal law, and may also touch upon internal security

practices and litigation-related obligations”); see also MTR Reply at 9. But these are not the kinds

of documents to which the Court found Plaintiff to be entitled in the Court’s December 22, 2017,

decision, nor in today’s decision to deny reconsideration of it. Evidently some documents pre-

dating the Commission’s termination are privileged as well. See, e.g., TRO Ancillary Issue Opp’n

at 12 n.4 (“Some documents on the Vaughn-like index are clearly privileged (i.e., internal

discussion with counsel), but there is no indication that former Commissioners are in possession

of any such documents, with the possible exception of litigation-related documents sent to Mr.

Kobach in his former capacity as Vice Chair.”). But Plaintiff appears not to seek those privileged

documents. ECF No. 46-3, app. A at 12 (disclaiming Plaintiff’s interest in entries on Vaughn-type

51
index consisting of “[l]itigation-related documents exchanged between named defendants and

DOJ”). Plaintiff is entitled only to the documents discussed in the Court’s December 22, 2017,

decision, which did not contemplate documents concerning post-termination records management.

See Dunlap, 286 F. Supp. 3d at 108. Defendants likewise should not be disturbed by Plaintiff’s

effort, in his TRO Application, to participate in document management decisions, as the Court has

denied that relief. Moreover, as the Court has permitted above, Defendants may withhold

documents generated before the termination of the Commission that exclusively concern document

management after its termination. That limited carve out would appear to encompass all of the

documents about which Defendants have presently expressed specific concerns.

Defendants’ failure to argue that any other documents are sensitive is consistent with prior

proceedings in this case: Defendants already offered, prior to the Court’s December 22, 2017,

decision, to make certain documents available for Plaintiff’s in-person review. See Dunlap, 286

F. Supp. 3d at 103-04 (“Defendants offered to permit Plaintiff to inspect, in person, documents

related to the September 12, 2017, meeting [of the Commission], but he would not be provided

with copies, nor would he be permitted to take notes.”). Their willingness to let Plaintiff see certain

documents, absent a court order compelling them to do so, suggests that Defendants are not

concerned about their content. If Defendants were in fact concerned about the content of other

documents that they did not offer to show Plaintiff, then it would have behooved them to say so in

briefing the Motion to Reconsider. The Court presumes that Defendants are troubled, not about

the content of documents they did not address, but rather by the Court’s finding, on December 22,

2017, that Plaintiff has a right to certain Commission documents.

If Defendants truly are concerned only about the precedential effect of a finding that

Plaintiff is entitled to documents under Cummock, then the delivery of those documents pending

52
appeal would not work any irreparable injury. A finding by the Court of Appeals that Plaintiff is

not entitled to the documents would remedy Defendants’ legal concern by establishing the

precedent they desire. In such an event, Plaintiff could simply be required to return the documents

to Defendants for lack of entitlement to them. The Court can only speculate as to putative harms

that the Defendants could suffer in the meantime—e.g., responding to comments that Plaintiff may

make to the press—but finds it unlikely that any such “harms” would be irreparable.

The Court also finds that release of the documents would not moot any appeal, as

Defendants’ conclusory citations are meant to suggest. See MTR Mem. at 12-13. In Church of

Scientology of California v. United States, the Supreme Court considered whether the delivery of

copies of certain tape recordings to the IRS during the litigation mooted an appeal of the district

court order compelling the tapes to be delivered. 506 U.S. 9, 10-12 (1992). The applicable

standard was whether the appellate court could “grant ‘any effectual relief whatever’ to a

prevailing party.” Id. at 12 (citing Mills v. Green, 159 U.S. 651, 653 (1895)); see also Sierra Club

v. U.S. Army Corps of Engineers, 803 F.3d 31, 43 (D.C. Cir. 2015) (finding that availability of

some effectual relief under Church of Scientology standard precluded mootness). Even after

delivery of the tapes, the appellate court could grant some relief, the Supreme Court found:

While a court may not be able to return the parties to the status quo ante—there is
nothing a court can do to withdraw all knowledge or information that IRS agents
may have acquired by examination of the tapes—a court can fashion some form of
meaningful relief in circumstances such as these. Taxpayers have an obvious
possessory interest in their records. When the Government has obtained such
materials as a result of an unlawful summons, that interest is violated and a court
can effectuate relief by ordering the Government to return the records. Moreover,
even if the Government retains only copies of the disputed materials, a taxpayer
still suffers injury by the Government’s continued possession of those materials,
namely, the affront to the taxpayer’s privacy. A person’s interest in maintaining the
privacy of his “papers and effects” is of sufficient importance to merit constitutional
protection. Indeed, that the Church considers the information contained on the
disputed tapes important is demonstrated by the long, contentious history of this
litigation. Even though it is now too late to prevent, or to provide a fully satisfactory

53
 remedy for, the invasion of privacy that occurred when the IRS obtained the
information on the tapes, a court does have power to effectuate a partial remedy by
ordering the Government to destroy or return any and all copies it may have in its
possession. The availability of this possible remedy is sufficient to prevent this case
from being moot.

Id. at 12-13 (final emphasis added; footnotes omitted). As in Church of Scientology, so upon any

successful appeal in this case, the Court of Appeals could still craft a remedy that grants some

relief to Defendants. At the very least, Plaintiff could be compelled to return all copies of

documents provided to him in compliance with the Court’s preliminary injunction. While there

may not be a privacy interest comparable to Church of Scientology, that case articulated a second

interest—the taxpayer’s “obvious possessory interest”—that has an analogue here. If the Court of

Appeals were to order Plaintiff to return Commission documents to Defendants, that would seem

to vindicate an obvious possessory interest in Commission documents that the President and Vice

President, and by extension, Defendants EOP and OVP, are required to maintain pursuant to the

PRA. Church of Scientology is clear that even if Plaintiff retains some knowledge or information

derived from the documents that he is provided, that is not enough to render wholly ineffectual the

relief of returning the documents. Because this situation is analogous to the Supreme Court’s

decision in Church of Scientology, the Court finds strong authority that delivery of the documents

in this case would not moot any appeal of the Court’s preliminary injunction.

The harm to Plaintiff of a stay pending appeal is the harm of further delaying the limited

means—under the Court’s preliminary injunction—by which he can still vindicate his right to fully

participate in the Commission. The Court shall not recapitulate here its description of the kind of

informal alternative findings or informal concurring or dissenting report that he may choose to

issue to the public. Plaintiff would have received the documents necessary to vindicate that right

shortly after December 22, 2017, had the Court not needed to decide the Motion to Reconsider. If

Defendants had promptly delivered the documents, then much of the separate relief that Plaintiff
54
sought—in the form of the TRO, ancillary request, and subpoena—could have been prevented too.

That said, if Defendants are merely required to show that “issuance of the stay will not cause

substantial harm” to Plaintiff, United States v. Philip Morris Inc., 314 F.3d 612, 617 (D.C. Cir.

2003) (citing Holiday Tours, Inc., 559 F.2d at 843) (emphasis added), then perhaps Defendants

can discharge their burden on this prong. But Defendants never directly address the harm that

Plaintiff would sustain if the Court’s decision were stayed. See MTR Mem. at 13 (asserting only

that “any injury to the plaintiff . . . would be significantly diminished relative to his previous

posture where the Commission remained in existence”); MTR Reply at 10 (arguing simply that

“the balance of equities[ ] cut[s] in favor of the defendants”). And in any event, Defendants would

need to succeed on more than this one prong.

Defendants offer no specific analysis of the public interest factor either. See id. The public

interest seems to lie in the efficient resolution of litigation concerning the now-defunct

Commission. By facilitating the provision of the documents at issue, today’s decision moves the

Court and parties one step closer to identifying what remains to resolve via this litigation.

In the end, the Court’s decision to issue a stay is a matter for the Court’s inherent discretion,

which can be triggered only in exceptional circumstances. See Air Line Pilots Ass’n v. Miller, 523

U.S. 866, 879 n.6 (1998) (citing Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)); Clinton v.

Jones, 520 U.S. 681, 706 (1997) (“The District Court has broad discretion to stay proceedings as

an incident to its power to control its own docket.”); Landis, 299 U.S. at 255 (requiring movant to

prove “a clear case of hardship or inequity in being required to go forward, if there is even a fair

possibility that the stay for which he prays will work damage to some one [sic] else”). The Court

shall not permit Defendants to have what amounts to a Trojan Horse for re-litigating the Court’s

December 22, 2017, preliminary injunction and the Court’s decision herein to deny reconsideration

55
of it. The Court granted Plaintiff a preliminary injunction—which Defendants did not appeal,

whether before or after the Commission’s termination—and Plaintiff is entitled now to the benefits

of it. If Defendants appeal this decision, then they may seek expedited relief from the Court of

Appeals. See Fed. R. App. P. 8(a)(1)(A), (2)(A)(ii); see also Fed. R. Civ. P. 62(g) (recognizing

that appellate court may issue stay pending appeal). Moreover, depending on the scope of that

appeal, it may trigger an automatic stay of certain proceedings in this Court pending its resolution.

See Loumiet v. United States, Civil Action No. 12-1130 (CKK), 2018 WL 2694448, at *2 (D.D.C.

June 5, 2018) (Kollar-Kotelly, J.) (citing Griggs v. Provident Consumer Discount Co., 459 U.S.

56, 58 (1982) (per curiam); United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997))

(recognizing that appeal triggers stay as to claims on appeal). An answer or motion to dismiss

may remain within the boundaries of proceedings that this Court still could facilitate during appeal

of its preliminary injunction. And, in any event, the welter of requests that the Court decides today

renders it unclear how the parties will choose to proceed. Defendants have not made out the “clear

case of hardship or inequity” that would be required to warrant a stay. Landis, 299 U.S. at 255.

IV. CONCLUSION

For all of the foregoing reasons, the Court hereby

DENIES Plaintiff’s [35] Application for a Temporary Restraining Order;

DENIES Defendants’ [39] Motion to Reconsider This Court’s December 22, 2017,

Order, including Defendants’ request for a stay of this decision pending their determination of

whether to appeal, as well as during any appeal, subject to any finding that the Court lacks

jurisdiction over aspects of the case under consideration by the D.C. Circuit; and,

in an exercise of the Court’s discretion, DENIES Plaintiff’s [48] Motion for Leave to

Serve a Preservation Subpoena.

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 Plaintiff is entitled under Cummock v. Gore, 180 F.3d 282, to the preliminary relief

guaranteed by the Court’s December 22, 2017, Order, as further clarified in this Memorandum

Opinion, but not to anything more at this time. Defendants must produce the relevant documents

by no later than JULY 18, 2018.

The parties shall submit a Joint Status Report by no later than JULY 27, 2018, indicating

how they propose to proceed on the merits.

An appropriate Order accompanies this Memorandum Opinion.

Dated: June 27, 2018

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

57