Last August, when President Trump issued a memorandum on his plans to end transgender military service by March 23 of this year, his memo set a deadline for the secretary of defense to submit recommendations on how, exactly, to proceed.
The date for Defense Secretary James Mattis to make recommendations to Trump was Feb. 21, 2018 — Wednesday.
But as that deadline approached — and passed — federal agencies and the White House have been pointing fingers at each other, revealing there was no clear message about what was happening or who would make an announcement.
On Wednesday, the Pentagon told BuzzFeed News that it wouldn’t make an announcement, but the White House could say something. The White House referred questions to the National Security Council, which had no information.
By Thursday morning, asked if President Trump had received recommendations, the White House House continued only to refer questions to the National Security Council, which subsequently told BuzzFeed News to contact the Pentagon.
Back where we’d started, Maj. Dave Eastburn, a Pentagon spokesperson, told BuzzFeed News in an email Thursday afternoon, “No notification has been made yet. Secretary Mattis will make his recommendations to the White House soon and the President will decide how we will move forward.”
“No notification has been made yet."
So what happened to the Feb. 21 deadline?
The White House and Pentagon haven’t answered — although the Pentagon gave some insight into Mattis’s thinking at a news conference Thursday afternoon.
The Pentagon said that Mattis would make his recommendation to Trump “this week” and that the president would be the one to announce the decision. Pentagon officials wouldn’t comment on the delay, saying that Mattis was carefully weighing the options through the lens of lethality and effectiveness in the armed forces.
“This is a complex issue, and the secretary is taking his time to consider the information he has been given,” Dana White, the chief spokesperson for Mattis, told reporters. “It was a self-imposed deadline, but I’m confident that the president will give him the time necessary to provide him with a thoughtful recommendation.”
Although the Pentagon appears to be taking its time, the questions about why the recommendations aren’t completed yet are compounded by a promise the Justice Department recently made to the US District Court in Maryland, according to Judge Marvin Garbis, who wrote in an order this month that Justice Department lawyers said a new transgender military policy would “be disclosed on February 21, 2018."
It would seem the Justice Department in that case, Stone v. Trump, was referring to the date for recommendations. And yet Thursday, the Justice Department did not reply to emails from BuzzFeed News asking the whereabouts of the policy the court had said would be disclosed Wednesday, or if it would inform the court that the administration had failed to meet that deadline.
Given that none of the relevant federal officials have clarified what’s going on here, it’s worth exploring potential explanations.
One possibility is that a federal court effectively suspended the part of Trump’s August memo that had set the Feb. 21 date in the first place — making compliance no longer required.
Trump's Aug. 25 memorandum states: "By February 21, 2018, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall submit to me a plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum."
Four federal courts have issued preliminary injunctions suspending Trump’s ban, each in slightly different ways, but one appears to be the most broad — potentially affecting the Feb. 21 requirement.
"By February 21, 2018, the Secretary of Defense ... shall submit to me a plan"
A US District Court judge in Washington state on Dec. 11 issued an order temporarily blocking the government “from taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement,” which is when Trump rolled out his intentions on Twitter.
It’s not clear how the Justice Department reads that injunction, but it could be read to suspended the entire August memorandum, and by extension, nix the Feb. 21 date. As such, any Feb. 21 timeline would be self-imposed, but not required.
More narrowly, the injunction could be read to allow any recommendations not “inconsistent with the status quo that existed” before Trump’s tweets. In other words, a recommendation allowing continued open transgender service would be allowed — but one disallowing it would be barred by the injunction.
On the other side, it could be argued that the Feb. 21 deadline set by the memo remains because the recommendation isn’t “action,” so it is not barred by the injunction — which would leave open the question of why the Pentagon is not complying with the presidential memo.
All of this is speculation, though, because the government hasn’t explained what it is doing or why.
Whatever the Trump administration’s thinking may be, several days after the Dec. 11 injunction, the Justice Department still told the US Court of Appeals for the 4th Circuit — in a request for a stay of the injunction in the Stone case — that the Feb. 21 timeline was on track.
“Consistent with that directive,” said a Justice Department brief that referred to Trump’s August memo, “the military is studying the issue and will make its recommendation by February 21, 2018.”
The department later abandoned its appeal in the Stone case — but continued to maintain to the district court that the recommendations would be disclosed by Feb. 21.
Two lawyers representing transgender troops in the case sent a letter to Judge Marbis on Thursday afternoon noting that the timeline had lapsed.
“February 21 has now passed,” the lawyers wrote. They said the Justice Department lawyer defending the ban had “failed to provide Plaintiffs with the implementation plan or any related policy documents on that date, and he has not responded to our request to forward these items. Nor are we aware of any public disclosure of the implementation plan and related policies.”
White, the Pentagon spokesperson, said as much Thursday, noting that the defense secretary had considered the proposals made by his consulted panel of experts, but emphasizing that Mattis “could decide to do whatever he likes” when it comes to what he will tell the president.
“The panel’s recommendations were just that,” she said. “The secretary considered those recommendations and his own thoughts, and he had his own conversations and now he’s prepared to provide his recommendation that’s been informed by those conversations.”