Defending the family

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Eugene Delgaudio



by Eugene Delgaudio

September 30, 2019

Repeatedly, during his campaign for President in 2016, President Trump promised to protect religious freedom, gaining broad support from both the evangelical community and conservative Catholics in the process. And repeatedly, during his presidency, President Trump has taken actions showing that he takes that promise seriously. In the last few weeks, liberals were demanding that the President make climate change the focus of U.N. meetings in New York, but President Trump chose instead to make religious liberty his focus at the September 2019 meetings.

Seventeen months ago, we at Public Advocate decided to check into whether the perpetual bureaucracy - a/k/a the Swamp - was implementing - or ignoring - President Trump's religious liberty reforms. Here is what we found.

Shortly after taking office, President Trump issued Executive Order 13798 (May 4, 2017), which was titled "Promoting Free Speech and Religious Liberty." Its purpose was "to vigorously enforce Federal law's robust protections for religious freedom."

As with many such Presidential directives, implementation was delegated to subordinates. Here, the Attorney General was instructed to issue guidance implementing the President's order. After working on the issue for many months, then-Attorney General Sessions issued a memorandum on October 6, 2017, laying out 20 "Principles of Religious Liberty." The memorandum was accompanied by a thoughtful analysis of "key constitutional and federal protections for religious liberties."

The same day, Sessions sent a memorandum to all 94 United States Attorneys Offices, ordering each office to take a number of steps to implement the religious liberty principles outlined in his memo.

One of those steps was the issuance of an order that each of the 94 U.S. Attorneys offices designate a "religious liberty point of contact" to lead the office's efforts to protect religious liberty. As the DOJ explained, "religious liberty is an inalienable right protected by the Constitution, and defending it is one of the most important things we doat the Department of Justice." Thus, "a religious liberty point of contact will ensure that the Attorney General's Memorandum is effectively implemented."

Why is it critical that a specific person in each office be given responsibility for protecting religious liberty? Because if everyone in any given U.S. Attorney's office is responsible - then no one is responsible. And if no one is responsible, no one is accountable. And if no one is accountable, nothing changes, nothing gets done, and the President's new policy languishes - just another piece of paper in the file.

Unfortunately, it seems that protecting religious liberty has not been all that important to the U.S. Attorneys nationwide. In April of 2018, our organization, Public Advocate of the United States, filed a Freedom of Information Act ("FOIA") request with the DOJ, asking for "all records demonstrating compliance or noncompliance with" the order to appoint religious liberty points of contact.

When the government failed to answer this very simple request, Public Advocate filed suit in the U.S. District Court for the District of Columbia. In response to that suit, the government agreed to provide the requested documents, and this month completed a full production of responsive records. Here's what we found.

Of the 94 U.S. Attorneys offices, only 20 could provide a record showing they had complied with the order and appointed a religious liberty point of contact. Of those 20, three of them took action only after Public Advocate brought suit.

As for the 74 remaining offices, the government admitted to having simply created a spreadsheet, listing each office's "civil chief" as the designated point of contact - but provided no records to back up this assertion. In other words, it looks like the Justice Department just plugged the name of each "civil chief" into the form to make it seem like someone was responsible for implementing the Trump/Sessions policy. In reality, for most offices, there is no evidence that this is true.

The documents obtained demonstrate that, while religious liberty protection is important to the President, it is not that important at all to the U.S. Attorneys Offices around the country. No one is responsible and, in most cases, that likely means nothing has changed. On a day-to-day basis, it looks like The Swamp has swallowed up the President's new policy.

Public Advocate's FOIA litigation has shown that government officials cannot be expected to carry out the President's instructions. The White House needs to adopt something like Ronald Reagan's "trust but verify" approach, and can never fully trust bureaucrats to faithfully implement President Trump's agenda.

Eugene Delgaudio is President of Public Advocate of the United States. Follow him on Twitter.