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Monday, December 17, 2018

Reprinted with permission from ProPublica.

 

The Trump administration is defending the legality of having three Trump associates help steer the Department of Veterans Affairs from the president’s Mar-a-Lago resort, asserting that a Watergate-era sunshine law on advisory committees shouldn’t apply.

In a court filing last week, the government lawyers argued in part that the trio didn’t fit the law’s definition of an advisory committee because rather than being under the agency’s control, the three men reportedly wielded influence over the agency.

“Far from alleging that the department managed or controlled the three individuals, the complaint asserts quite the opposite: that the three individuals asserted influence over the department,” Justice Department lawyers said in the filing, which was submitted on Friday.

The government asked a judge to throw out a challenge from a liberal activist group, VoteVets, which alleged that the VA’s interactions with the so-called Mar-a-Lago Crowd violated the Federal Advisory Committee Act. The 1972 law, known as FACA, requires federal agencies to inform the public when they consult outside experts.

The stakes of the lawsuit have risen since the VA’s inspector general told senators he would await the court’s decision before deciding whether to conduct his own investigation. The VA has also cited the litigation to resist releasing more documents about the Mar-a-Lago Crowd to ProPublica and to Congress, which a key Democrat called “a transparent attempt to stonewall.”

In the new filing, the administration argued that FACA doesn’t apply to every formal or informal consultation, and it said such an interpretation would stifle the government’s ability to get advice.

There have been cases when courts ruled that advisory groups that weren’t organized under FACA still had to comply with the law, but those have been exceptions. In a similar case that the lawyers representing VoteVets brought against an infrastructure advisory council, the judge agreed to require the administration to answer questions about the activities.

“President Trump’s recent effort to dismiss our case is the latest slap in the face to the men and women who have sacrificed to protect our country,” Will Fischer, VoteVets’ director of government relations, said in a statement. “America’s veterans deserve a commander-in-chief who cares enough about our well-being not to outsource decisions about our health care to dues-paying members of his golf club.”

The VA case has been assigned to Judge Timothy J. Kelly, a Trump appointee. In another recent high-profile case, Kelly ordered the White House to restore a CNN reporter’s press credentials.

The Mar-a-Lago trio — Marvel Entertainment Chairman Ike Perlmutter, West Palm Beach physician Bruce Moskowitz and lawyer Marc Sherman — have weighed in on many VA policy and personnel decisions despite having no official role or relevant expertise, according to documents obtained through the Freedom of Information Act and interviews with former officials. VA officials flew to Mar-a-Lago at taxpayer expense to consult with the trio, and officials who didn’t get along with them were sidelined or removed.

Perlmutter, Moskowitz and Sherman were most deeply involved in an effort to overhaul the VA’s electronic health records — an expensive, high-stakes project that is already suffering from leadership turmoil that could put VA patients’ safety at risk, according to a ProPublica investigation.

A representative for the trio has said they made recommendations and didn’t attempt to develop policy or influence personnel decisions. The current VA secretary, Robert Wilkie, said he’s not aware of any ongoing contacts between his team and the trio.

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