A federal appeals court has blocked a bid by one of President Donald Trump’s appointees to take over a government-funded nonprofit organization that fosters technology aimed at undermining internet censorship around the globe.
The U.S. Court of Appeals for the D.C. Circuit issued an order Tuesday morning preventing U.S. Agency for Global Media CEO Michael Pack from installing a hand-picked board to replace the previously existing leadership of the Open Technology Fund.
Weeks after his Senate confirmation last month, Pack purged leadership at a series of taxpayer-funded media outlets, including the storied Radio Free Europe and Radio Free Asia networks, as well as the lesser-known OTF.
Trump has taken the global broadcasters to task for being too critical of the administration and its policies, including its response to the coronavirus. Pack’s drive to oust the leaders of the media outlets was seen as an effort to draw friendlier coverage. Veterans of the organizations have said the massive leadership change undermined their traditional independence.
The Trump administration’s attempts to exert greater control over the taxpayer-funded entities has drawn in Congress, which has raised questions about Pack’s moves, while setting off an unusual legal battle.
Earlier this month, U.S. District Judge Beryl Howell turned down a request by the existing members of the OTF board to block Pack’s move against them.
However, in the new appeals court order, the judges from the D.C. Circuit said Pack appeared to lack the same authority over the internet-focused nonprofit that he enjoys over the other federally funded international media organizations.
“OTF is not a broadcaster … and is not sufficiently similar to the broadcast entities expressly listed in [the law at issue] to fit within the statutory text,” the court’s unsigned order said. Pack’s “statutory authority … does not seem to include control of OTF’s board or operations.”
Howell found no irreparable harm would befall OTF if the old board was locked out, but the three-judge appeals panel disagreed.
“The government’s actions have jeopardized OTF’s relationships with its partner organizations, leading its partner organizations to fear for their safety,” the D.C. Circuit order said. “Further, absent an injunction during the appellate process, OTF faces an increasing risk that its decision-making will be taken over by the government, that it will suffer reputational harm, and that it will lose the ability to effectively operate in light of the two dueling boards that presently exist.”
The appeals court order is temporary and does not amount to a final ruling on Pack’s authority, but appears to be the first serious legal blow to his attempt to clean house at U.S.-funded media entities. The injunction issued Tuesday returns control of OTF to its previous board until the appeal is fully heard and decided.
The D.C. Circuit order came one day after District of Columbia Attorney General Karl Racine filed his own lawsuit in D.C. Superior Court, claiming that the attempted takeover of OTF violated D.C. law on governance of nonprofit organizations.
The turmoil over and within the government’s broadcasting agency has begun to affect the fund’s operations. Last Friday, POLITICO reported that OTF might need to cancel a contract for encryption software that helps people living in repressive regimes such as Iran and China access impartial news without their government’s knowledge.
At a court hearing on June 26, a Justice Department lawyer indicated that a freeze on OTF’s funding had been or was about to be lifted. An official with the Agency for Global Media said Tuesday that, nearly a month later, the funding stream has yet to resume.
The appeals judges who issued the injunction Tuesday were Clinton appointee David Tatel, George W. Bush appointee Thomas Griffith and Obama appointee Patricia Millett. The appeal will likely be assigned to another panel for future proceedings.
Howell, the district judge, is also an Obama appointee.
Deepak Gupta, A lawyer for OTF board members challenging their ouster, welcomed the decision.
“Over the past few weeks, Pack and his agents have tried to install an ‘Acting CEO’ for OTF, have tried to gain entry into OTF’s office space, and even tried to force OTF’s landlord to turn over control of its lease,” Gupta said. “This doesn’t just harm OTF and the people who work there. OTF works to advance internet freedom in repressive regimes around the world and Pack’s actions have put the safety of activists and journalists, in places like Tehran and Hong Kong, at risk.”
“We hope that Pack and the administration will comply with the court of appeals’ order,” Gupta added.
Justice Department and USAGM spokespeople didn’t immediately respond to requests for comment on the new ruling.