How Nigeria Elected a Criminal as Its President: Part II

Bola Tinubu and The Fastest Court In The World

If you were a 90s kid like me, you may remember Kool-Aid Man. Kool-Aid Man—an anthropomorphized giant pitcher of Kool-Aid (basically, an unapologetically sugary drink for hot summer days if you’re not familiar) was featured in dozens of TV commercials bursting through walls to the slogan of “Ohhh yeahhh!” Fortunately, YouTube has preserved this once-dominant cultural icon for us, as shown below.

Such is the grace with which purported Nigerian President Bola Ahmed Tinubu motioned to intervene in my federal Freedom of Information Act (FOIA) lawsuit to obtain files about his most interesting history in the United States.

It was a hoot. As described in Part I of this series, Tinubu’s lawyer didn’t even know he represented him, and erroneously informed the court that he represented me instead. It was a bit like the Kool-Aid man crashing through the wall, backwards, into a courtroom he wasn’t sure he was supposed to be in, but also, like Kool-Aid Man had laundered money for a heroin ring in Chicago in the early 1990s—which is about when I saw commercials for Kool-Aid on television as a nine-year-old.¹

Tinubu’s first lawyer, located in Washington, D.C., ultimately made use of the pro hac vice process to rope in three more lawyers. This kind of thing is common. Lawyers are required to be a member of a court’s bar in order to practice there. Since the lawsuit was based in the United States District Court for the District of Columbia, Tinubu needed a lawyer in D.C. When a lawyer is not in the right place, he or she can phone a friend (not the actual translation of pro hac vice, but close enough) for that one case. But Tinubu’s go-to attorneys, who had just finished losing a court battle in the Northern District of Illinois involving his questionable-but-ultimately-irrelevant records from Chicago State University, were not based in Washington, D.C. With its only two offices in Boston and Chicago and no FOIA expertise to speak of, the law firm of Henderson Parks was a curious choice for representation in federal court in Washington, D.C. for this type of case.

No matter. They quickly filed a motion to intervene on Tinubu’s behalf, which was assigned Electronic Case File (ECF) No. 18 on the docket. In the motion, filed October 23rd, Tinubu’s lawyers argued that their client “has privacy interests in IRS and federal law enforcement records sought because those are records about Intervenor and contain private information.” What they didn’t know is that I had already had a telephone call with a lawyer for the IRS on October 6th, and the day before that call, in preparation, she had sent me an unsigned declaration by another IRS lawyer (the IRS has a lot of lawyers) explaining that to the best of the agency’s knowledge, the IRS had destroyed all of its files related to the case. Tinubu’s concerns about the IRS were moot.

This wasn’t too hard to believe. The Washington Post recently wrote a long profile about the myriad problems at the IRS, which—thanks to persistent Republican Party worship of tax evasion, intransigence, and abject stupidity—has been strangled for decades, forcing it to rely on mainframe computer technology from the 1960s, ceaseless tons of paper, and millions of staples. It is reasonable to think that in such an environment, throwing out investigative papers from 1992 that never really went anywhere after ten years according to a document destruction policy wouldn’t be the worst idea.

Still, it was weird that the declaration was not signed, and that neither the IRS lawyer nor the United States Department of Justice Assistant United States Attorney (AUSA) assigned to the case were willing to file it on the docket, where the court and later, Tinubu’s lawyers, could see it.

I filed a response to Tinubu’s motion to intervene the same day as ECF No. 19, including a copy of the unsigned IRS declaration and the e-mail it arrived in as an attachment, and generally opposing the need for Tinubu to be involved in the case. Judge Howell ultimately granted Tinubu’s motion on November 27, 2023, but it was a sort of pyrrhic victory for him. By that point, FOIA document production had long since begun, and his being involved in the case as an intervenor had no real impact (though it could later on, in theory).

Rather than depending on his relatively weak legal status as an intervenor, it seems Tinubu sought to influence the court proceedings in the United States in a less direct way that nobody saw coming.² And in this regard, he was quite successful. To understand what happened, though, first you need to know a little bit about FOIA litigation in the United States.

A FOIA lawsuit is a bit different than a typical civil lawsuit. While a civil lawsuit can ask for all kinds of relief, the point of a FOIA lawsuit is simply to obtain documents. That makes the typical discovery process, where each side provides documents to the other, redundant and generally unnecessary. Judges expect the government defendants (because FOIA requests always involve federal government defendants) to provide any documents they’re willing to in parallel with the litigation, outside of court, and to provide regular status updates in court on how that process is going. This makes the Joint Status Report, or JSR, the heartbeat of FOIA litigation. It’s “Joint” because all of the parties are supposed to work together to inform the court as to what’s happening. Sometimes, when parties can’t agree, the report gets broken into separate sections for the plaintiff(s) and defendant(s). And sometimes, judges get annoyed when there appears to be too much disagreement—so there is an incentive to work together. A JSR gets filed every few months so long as there’s a status to update.

In the lawsuit about Tinubu’s records, the first JSR was filed on September 11, 2023 as ECF No. 12 on the docket, and much to my surprise, several of the government agencies stated that they were willing to provide documents by the “end of October.” Since this was already a major improvement relative to their prior stance, which was that they’d produce no documents at all, I thought it was unwise to push for an exact date. The end of October sounded great. I did ask, however, that the government not sit on documents for no reason, which is something that often happens.

Then, on October 20th, three days before Tinubu’s lawyers filed their motion to intervene, but after they had already begun making an appearance in the lawsuit pro hac vice, the Supreme Court of Nigeria decided to accelerate the hearing date for a set of Nigerian cases challenging the legitimacy of Tinubu’s election, brought by some of the other candidates. Instead of the Supreme Court of Nigeria holding the hearing in early November, it was suddenly scheduled to be held the next business day: Monday, October 23rd, 2023. In the United States, where due process is built into the Constitution, this kind of abrupt schedule change would be unthinkable in anything but a capital punishment case.

It seemed highly unlikely that the court in D.C. would be able to do anything about it, but I decided to make the judge aware of the situation, and via an emergency motion (ECF No. 17) requested a hearing on the 23rd to at least possibly discuss the issues surrounding sudden changes by the Supreme Court of Nigeria. In theory, documents the U.S. government was sitting on could have made a difference in that case, and that could have been a very big deal for Nigeria. The government had, after all, already promised to begin producing documents at the “end of October.” Even if nothing could be done before the Nigerian case hearing, it was still possible that the American court might issue a ruling holding the U.S. government to its word before the Nigerian judgment issued affirming Tinubu’s election. It was worth a shot.

Sadly, on October 23rd, after the hearing had already taken place in Nigeria, Judge Howell issued a ruling denying my emergency motion. She interpreted it not as a request for a hearing, but as a request for a hearing on the issuance of an injunction, which meant that the request had to meet stringent requirements I hadn’t bothered addressing given the short timeframe—and because I wasn’t asking for a formal injunction. I just wanted the government to produce the records it had already compiled at this stage of the “end of October,” something some judges might have addressed through a simple, relatively informal, one- or two-sentence court order. Here, again, an e-mail from the United States Department of Justice AUSA that the court was not privy to had informed my thinking. On September 12, 2023, the day after that first JSR was filed, AUSA Jared Littman wrote to me via e-mail in response to my request, stating, “I will advise the agencies that, should their productions be ready before the agreed-upon anticipated dates set forth in the joint status report, they should not wait and they should produce as early as possible.” Now, that promise actually mattered.

The judge didn’t seem to think so. But her ruling had more than a few minor errors in it, and her interpretation of my basic request for a hearing as a request for an injunction, and specifically, a temporary restraining order, seemed overly formalistic to me.

When judges receive requests or motions, they have to place them in the bucket of whichever Federal Rule of Civil Procedure corresponds to that type of request. I had thought of my emergency motion more like a motion to compel under Rule 37, which typically relates to discovery. But since this was a FOIA case, it’s possible that Judge Howell believed that Rule 37 didn’t apply, and instead considered the motion under Rule 65, relating to injunctions and temporary restraining orders—neither of which is really appropriate for an emergency discovery-ish situation.³ Though temporary restraining orders are often used by courts in exigent circumstances, I wasn’t asking to restrain anyone from doing anything. On the other hand, the FOIA statute is written in such a way that the government can be ordered to restrain from withholding documents, so it’s not completely crazy that Judge Howell thought of my request in this way. Just the same, the procedural nitpicking was silly, in my view, as it was clear what I was asking for and why. And by defaulting to Rule 65 and its complex requirements for relief, the judge had a ready excuse to do away with the request.

I filed a motion for reconsideration (ECF No. 22) just the same, pointing out the errors she (or more likely, Judge Howell’s clerks, who actually do the writing without attribution) had introduced into the record. The government responded admitting that the errors were there, but arguing disingenuously that I was asking for accelerated document production, which was not true. This directly contradicted AUSA Littman’s September 12, 2023 e-mail to me, as well as the common sense that we were already at the “end of October.” Judge Howell responded with a nine-page order, denying the relief and accusing me of trying to skip in line—a ridiculous spin on what I saw as a foreign leader pulling the strings of his nation’s Supreme Court to front-run a United States judicial process—but grudgingly admitting the errors in her prior order in a footnote.

By this point it was clear that Judge Howell was annoyed, but Tinubu wasn’t done. On October 25th, the Supreme Court of Nigeria then announced that it was also moving up the date of judgment on the election case—to the 26th, the very next day! There was simply no way that any American court could keep up with this absurd Nigerian judicial treadmill. I filed a Request for Judicial Notice (ECF No. 23) informing the U.S. court of the latest change, just to have it in the record, and also including articles about Tinubu’s relationship with the Nigerian Supreme Court’s Chief Justice, whose son appeared to earn himself a judgeship of his own in Nigeria upon Tinubu’s election. (So impressive!)

On the 26th, surprising no one, Tinubu’s Supreme Court confirmed the supposed legitimacy of his election. That led to this self-parodying video of Tinubu, hard at work at his desk, celebrating in Abuja with his groveling lieutenants, joking with one, “Your job is secure!”

In a way, not having to play catch-up with the Fastest Court In The World was a relief. Now the lawsuit could go on like any other normal FOIA lawsuit.

Plus, Thanksgiving was coming up, and as luck would have it, I was planning to fly to Chicago to visit my family—and the Chicago offices of the National Archives.

To be continued in Part III…

1. Perhaps Family Guy can take this up in a future episode.

2. There is no conclusive evidence that Tinubu himself was behind the Nigerian Supreme Court’s machinations. However, the timing is highly suspicious, and Tinubu was clearly aware of my lawsuit given that he motioned to intervene. It’s hard to imagine any other reason for its massively accelerated calendar in the election case.

3. But what do I know? I am not a lawyer.