A few months into the COVID-19 pandemic, attorneys for the Reporters Committee for Freedom of the Press filed a Freedom of Information Act lawsuit against the U.S. Treasury Department on behalf of ABC News and journalist Ben Gittleson in an effort to answer an important question: How did then-President Donald Trump’s name end up on coronavirus stimulus checks sent to 35 million Americans?
The litigation, which wrapped up last month, shook loose emails, memos and other correspondence between officials at the White House, Treasury Department and Internal Revenue Service. Last May, ABC News used those records to report on the high-level discussions that led up to the controversial decision to print Trump’s name on the relief checks that were distributed after the passage of the Coronavirus Aid, Relief and Economic Security Act, or CARES Act, in March 2020.
“[I]nternal emails obtained by ABC News give an inside look at the scramble to add Trump’s name just days before payments started going out in the middle of a presidential election year,” Gittleson reported. “The documents provide a glimpse behind the scenes as the Trump administration sought to take credit for the payments.”
The unprecedented decision to add Trump’s name to the checks as he was running for re-election generated significant criticism. Some critics considered it a branding tactic no different than what Trump had done with his hotels and golf courses. But as ABC News reported, there were also significant concerns that the process of adding Trump’s name would delay the distribution of checks to millions of Americans, many of whom had recently become unemployed as a result of the pandemic.
Now that Reporters Committee attorneys have reached a settlement with the Treasury Department in this case, we thought it was worth taking a closer look at ABC News’s investigation and the legal support that helped make it possible.
The stimulus checks Americans received in the spring of 2020 included the following language printed on the memo line:
Economic Impact Payment
President Donald J. Trump
But as ABC News reported, documents obtained through litigation revealed that government officials considered many other variations before settling on that language. In one version, for example, Trump’s name appeared to the left of Treasury Secretary Steven Mnuchin’s.
Here are some other findings from the ABC News investigation:
- Emails showed officials confirming that Mnuchin was the one who instructed the IRS to include Trump’s name on the checks.
- IRS Commissioner Charles Rettig wasn’t made aware of the effort to add Trump’s name to the relief checks until late in the process.
- Treasury Department officials quickly circulated an April 2020 Washington Post story reporting that adding Trump’s name to the checks could delay disbursements. Records show that Mnuchin emailed the news to Mark Meadows, then the White House chief of staff. And the IRS quickly denied that delays would occur.
How RCFP attorneys helped
ABC News connected with Reporters Committee attorneys after government officials dragged their feet in responding to Gittleson’s FOIA request for communications records related to the relief check memo line. In April 2020, Gittleson had specifically requested “access to and copies of all e-mail communication, meeting notes, and other relevant records concerning the decision to print President Donald Trump’s name on Economic Impact Payment checks disseminated to Americans as part of stimulus, or relief, related from the impact of the COVID-19 pandemic.”
Gittleson had also asked officials to speed up processing of his request. As the reporter wrote, “A delay in receiving the information that is the subject of this request will compromise the American public’s ability to stay informed about and understand the dissemination of these important payments.”
Treasury Department officials rejected Gittleson’s request for expedited processing. And the agency eventually failed to meet the deadline established under FOIA for issuing a determination in response to the request. On behalf of ABC News and Gittleson, Reporters Committee attorneys sued the Treasury Department in June 2020, claiming, among other things, that the agency violated FOIA by improperly withholding agency records.
After filing the lawsuit, Reporters Committee attorneys began talking with Treasury officials and the agency started releasing some records to ABC News. But the Treasury Department was still withholding records — in part and in full — and so both sides ended up filing legal briefs in court.
In their briefs, attorneys for the Treasury Department argued that many of the requested records were exempt from disclosure under FOIA Exemption 5, specifically the “deliberative process” privilege. The exemption protects from disclosure certain communications within or between government agencies, but it is notoriously overused and abused — so much so that it has been dubbed the “withhold it because you want to” privilege.
Reporters Committee attorneys disputed that the records could be withheld under the deliberative process privilege. And even if the Treasury Department did adequately establish that the records could be kept secret under Exemption 5 and the deliberative process privilege — they did not, RCFP attorneys argued — the agency did not satisfy a higher burden under what’s known as the “foreseeable harm standard.”
That standard, which Congress added to FOIA in 2016, states that an agency can withhold information under the deliberative process privilege, as well as the other discretionary exemptions, only if the agency can “reasonably foresee that disclosure would harm an interest protected by the exemption.”
“When we’re talking about the deliberative process privilege in the context of the adoption of a new regulation, that’s arguably closer to the core of what the privilege is designed to protect. But here we had deliberations about whose name is going to go on the memo line,” said Reporters Committee Senior Staff Attorney Adam A. Marshall, one of the attorneys who litigated the case on behalf of ABC News and Gittleson. “This is not the type of thing where releasing internal communications is going to cause harm to the Treasury Department going forward.”
Even as attorneys continued litigating the case, ABC News published its investigation using the records obtained from the Treasury Department as of last May. The agency later produced additional records, before the parties reached a settlement of the case.
Marshall says he wishes government agencies wouldn’t waste taxpayer money by fighting to keep records like these secret.
“Through litigating many FOIA cases like this one, it becomes clear that the government is withholding vast amounts of information for no substantive reason and certainly no lawful reason,” he said. “And that’s incredibly frustrating because we know that only a tiny percentage of FOIA cases are litigated, so it’s very fair to assume that in many, if not most, agency denials that aren’t litigated there is information being improperly withheld.”
Marshall credits ABC News and Gittleson for taking the Treasury Department to court for these records. He notes that it’s important for the public to get a behind-the-scenes look at what government officials were discussing as the nation struggled to deal with a crippling pandemic.
“Through these records, you see so much government time, energy and resources being spent debating what to a lot of people is pretty inconsequential, which is what’s on the memo line of the check. What mattered to people was getting the checks and getting them quickly,” he said. “And I can imagine that for people in dire financial situations, seeing this back and forth — about whose name is going to be on the top line, are middle initials going to be included, is the secretary’s name going to be included or just the president’s name — might be pretty upset that this was going on when they needed help from their government.”
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.