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Why Challengers To Trump's Transgender Military Ban Want To Depose A Nuclear Expert

The National Security Council's expert on military personnel and readiness issues had left her job weeks before Trump's 2017 tweets, according to emails from lawyers in ongoing litigation over the ban.

Posted on June 19, 2018, at 9:55 p.m. ET

US Secretary of Defense James Mattis watches President Donald Trump speak.
Pool / Getty Images

US Secretary of Defense James Mattis watches President Donald Trump speak.

When President Donald Trump issued his July 2017 tweets announcing an end to transgender military service, the National Security Council's expert on military personnel and readiness issues had left her job weeks earlier — leaving the NSC's expert on nuclear issues to fill in while awaiting a replacement.

The information about Rear Admiral David Kriete's role in the run-up to and aftermath of the president's tweets last summer was detailed in emails between the lawyers in a case challenging Trump's latest attempt at implementing his ban that a federal judge attached to a court order Tuesday.

"Rear Admiral Kriete was, therefore, the person responsible for this issue at the NSC when the President announced his ban via Twitter on July 26, 2017, as well as for several weeks before and perhaps a month or more after," Lauren Milgroom, one of the lawyers challenging Trump's latest attempt at a ban on transgender service, wrote in one of the emails.

Challengers to the ban want to depose Kriete, but he has since been named deputy director of US Strategic Command, and the government's lawyers argued in the emails that he should not be deposed at this point in the litigation because he is a high-ranking government official — and that, in any event, the information being sought from him would be privileged anyway.

The challengers countered that Kriete is "uniquely situated to provide them key information" and that his testimony, or at least part of it, would not be privileged. (They also noted that they were willing to travel to Omaha, Nebraska — where Strategic Command is headquartered and where the government said Kriete would be found — to hold Kriete's deposition there.)

For now, though, US District Judge Colleen Kollar-Kotelly put off ruling on the deposition question and the privilege claims by noting that both sides are seeking summary judgment in the case — rulings that they should win the case on the law based on the evidence already available.

"If summary judgment is granted for either party, there will be no need to resolve the questions of privilege that the parties have raised, which implicate serious separation-of-powers issues and would require additional briefing," Kollar-Kotelly wrote in a brief order.

The dispute over whether Kriete would be made available for a deposition had been ongoing for some time, reaching Kollar-Kotelly on June 13, when Drew Carmichael, the Justice Department lawyer representing the government, laid out the government's objections to holding the deposition June 27.

There was no public notification that this dispute had been happening, however, until Kollar-Kotelly issued her order Tuesday. As part of the order, she attached "the parties' emails" — which include emails from the judge's chambers as well, laying out the court's apparent views of the dispute — as an exhibit to the order.

The email chain includes Milgroom's June 14 response to Carmichael, detailing the reasons why the challengers believe Kriete's deposition is needed.

Jennifer Hay, whom the challengers previously deposed, had a portfolio at the NSC including military personnel and readiness — but she left the NSC on July 5. At that time, Hay's replacement "had not yet arrived." "To fill the gap," Milgroom continued, Kriete — "who was working at the NSC as an expert in nuclear weapons policy" — was "temporarily assigned the portion of Ms. Hay's portfolio relating to transgender military service."

Kriete's Navy biography, updated Tuesday, details his extensive nuclear-related experience — noting that he "was responsible for presidential policy on all nuclear weapons related issues" at the NSC and "has had an integral role in the two most recent Nuclear Posture Reviews."

It also states that Kriete only "assumed the duties and responsibilities as deputy commander" of US Strategic Command this month.

A later email from Carmichael disputed other claims made by Milgroom, but he does not question the timeline or facts relating to Hay's and Kriete's jobs at the NSC.

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