The Friendliest Lawsuit Ever Filed Against the Justice Department

By Benjamin Wittes
Saturday, August 12, 2017, 7:29 AM

Yesterday, for the first time in my life, I filed a lawsuit. It may be the friendliest lawsuit ever filed against the Justice Department.

I filed it because I believe President Trump lied before Congress about data kept by his Justice Department, and I want to find out whether I'm right.

In February, speaking before a joint session of Congress, President Trump declared that: “according to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.”

There's a lot of reason to believe this statement is a compound lie—both to believe that the vast majority of individuals convicted of terrorism-related crimes did not come here from elsewhere and to believe that the career men and women of the Department of Justice did not provide any data suggesting otherwise. As I summarized a while back,

Last week, Lawfare ran a series of articles by Nora Ellingsen and Lisa Daniels raising serious questions about the veracity of this claim. I strongly recommend readers read these posts in their entirety, but for those who may have missed them, the authors pored through a large public list of terrorism cases released by the Justice Department's National Security Division to determine which defendants did and did not come "here from outside of our country." Their findings are rich across a bunch of different axes, but for present purpose, one conclusion is key: "The data Trump cited in his speech to the Joint Session of Congress simply don’t support his claims that a 'vast majority' of individuals on the list came from outside the United States—unless, that is, you include individuals who were forcibly brought to the United States in order to be prosecuted and exclude all domestic terrorism cases."

As Ellingsen and Daniels wrote:

what would the numbers look like if we excluded extradited subjects while including all of these domestic terrorists—the approach that seems to us the unbiased way to express the real rate at which foreign-born, as opposed to domestic-born, people are committing terrorist or terrorism-related crimes?

If we clean up the data to account for the issues described above, instead of accounting for between 63 and 71 percent of terrorism convictions, foreign-born persons would likely account for between only 18 and 21 percent of terrorism convictions.

I concluded in April:

I'm going to be very blunt here: I not only believe that the White House made up "alternative facts" about the substance of this matter in a presidential address to a Joint Session of Congress, I don't believe that the National Security Division of the Justice Department provided any data or analysis to the White House that could reasonably be read to support the president's claim. In other words, I believe the president was lying not merely about the underlying facts but also about his own Justice Department. Or, in the alternative, I believe it's possible that the Office of the Attorney General may have supported the White House's claim. But I think it extraordinarily unlikely that the folks at NSD actually provided data in support of this presidential statement.

Here's why I believe this: I know a lot of people at NSD, and they are not the sort of people who grossly mischaracterize facts in order to make political points. Indeed, I believe that the folks there have the integrity to raise internally the very issues that Ellingsen and Daniels raised in these pieces.

So I filed a Freedom of Information Act request this spring to find out both whether such data exist and what, if any, communications took place between the Justice Department and the White House in preparation for this presidential statement characterizing Justice Department data.

To date, I have not received any response indicating a search for such records has taken place. So on Friday, represented by the Protect Democracy Project, I filed suit. I'll keep readers posted on anything we find out.