Harvard AAUP Suit Mired in Dispute Over Government Documents as Trial Nears End

BOSTON — A Harvard faculty group’s lawsuit over the Trump administration’s immigration policies entered its final week of trial on Monday. But as the trial inches closer to its conclusion, it has become mired in a clash over what evidence the government is required to turn over.

The lawsuit — filed jointly by the American Association of University Professors, the organization’s Harvard, New York University, and Rutgers University chapters, and the Middle East Studies Association — challenges what the plaintiffs call the federal government’s “ideological deportation policy” on First Amendment grounds.

The policy, whose existence is disputed by federal officials, involves attempting to deport noncitizen faculty and students for their pro-Palestine speech.

In mid May, lawyers for the AAUP requested a slew of documents from the government, including internal communications, records, and memoranda related to a set of noncitizen students and faculty that the AAUP identified as targets of the ideological deportation policy.

In the months since, lawyers for the AAUP and the government have collectively filed more than 30 motions in an escalating debate over the confidentiality of the government documents. The dispute has delayed what was set to be an accelerated trial, taking up the entire court hearing on Monday and pushing the AAUP to forgo calling a witness to save time.

Government lawyers have invoked several legal privileges — including law enforcement privilege, deliberative process privilege, presidential communications privilege, and attorney-client privilege — to keep the documents under wraps. They argue that documents contain sensitive information and that revealing them publicly would compromise government processes.

Lawyers for the AAUP, however, said they “cannot effectively get at the truth” without the documents, which they argue are crucial evidence of the ideological deportation policy and necessary for cross-examining government officials testifying in the trial.

The requested documents include communications between top government officials and internal reports on campus protestors created by the Department of Homeland Security.

William G. Young ’62, the federal judge overseeing the case, ruled mid-trial last week that the government had effectively waived its privileges when it submitted documents to him “in camera,” meaning only he could view them. He then made a set of documents, including the internal DHS reports on student protestors, available to the AAUP’s lawyers.

Young continued to shut down repeated objections from the government’s lawyers throughout the trial last week as the AAUP’s lawyers questioned two senior federal officials. And in their questioning, redacted parts of the DHS reports became public for the first time.

The government’s lawyers were quick to intervene — promptly petitioning the First Circuit Court of Appeals to overturn Young’s ruling and allow the government to “claw back” the documents that had already been disclosed in a Thursday filing.

“The district court’s waiver ruling, issued from the bench on the first day of trial, represents a clear error of law and a gross abuse of discretion,” the government’s lawyers wrote in the petition.

The higher court preliminarily sided with the government the next day, temporarily staying the disclosure of future documents where “waiver” was the only rationale given to reject the government’s invocations of privileges. The court also invited Young to explain his earlier ruling.

The stay prevented the AAUP from continuing their cross-examination of John L. Armstrong, who leads the State Department’s Bureau of Consular Affairs. Lawyers for the AAUP had begun questioning him on Friday afternoon before Young paused the trial to read the appellate court’s order.

As the trial resumed on Monday morning, Young did just that, standing firm by his position that the government was wrong to keep the documents sealed.

Young said his use of the word “waiver” had been “infelicitous.” But he maintained that the government asserted its law enforcement privilege “extraordinarily overbroadly” and that attorney-client privilege was “simply inapplicable” to the case.

And Young added that he would rule on the remaining privileges invoked by the government, including the deliberative process privilege, which allows for the government to not disclose discussions that precede a decision from the executive branch, on a question by question basis.

In a request to extend the trial by two days, the AAUP’s lawyers wrote that opting to handle these case-by-case objections, Young allows the government “effectively to filibuster” their allotted trial time — which is quickly running short.

Young rejected their request, intending to conclude the trial on Thursday as he awaits a decision from the First Circuit.

—Staff writer William C. Mao can be reached at william.mao@thecrimson.com. Follow him on X @williamcmao.

—Staff writer Laurel M. Shugart can be reached at laurel.shugart@thecrimson.com. Follow them on X @laurelmshugart.