A judge in DC federal court has asked the Department of Homeland Security (DHS) to decide within a week how it will handle a Freedom of Information request from the conservative Heritage Foundation for the immigration records of the Duke of Sussex.
DHS has so far not responded to the request, prompting legal action from the foundation, in which they pointed to Prince Harry’s previous admissions of drug use, such as in his memoir Spare.
The department argued that an injunction to force DHS to expedite the request shouldn’t go ahead as the foundation hasn’t shown how they will suffer irreparable harm if the information isn’t shared.
Representing the government, Assistant US Attorney John Bardo argued on Tuesday that it wouldn’t make a difference when the request was handled, even if the response came a year from now.
The Heritage Foundation said the interest in Prince Harry’s immigration status would wait.
Large parts of the hearing centred on the amount of media attention on Prince Harry and his supposed drug use which some legal experts say would have barred him from entering the US.
The Heritage Foundation has suggested that the federal government may have been engaging in favouritism and may have turned a blind eye to actions which may have caused the authorities to reject the visa application. The foundation also argued that the public should be allowed to see Prince Harry’s immigration records to see if he may have provided untruthful answers.
Mr Bardo argued that sufficient coverage from mainstream US media was required for a request to be expedited. He mentioned outlets such as The New York Times, The Washington Post, The Wall Street Journal and the TV networks.
Heritage lawyer Samuel Dewey meanwhile argued in front of Judge Carl Nichols that DHS regulations simply say “media” without specifying where the outlets are based.
Mr Dewey told The Independent that “you can't define mainstream. That's almost absurd in this context. So as a policy matter, that is a very alarming statement for the press and for transparency for the administration”.
Nile Gardiner, the director of the Margaret Thatcher Center for Freedom at the foundation, added: “I do find it astonishing that the British press is referenced as obscure.”
“These are big publications with a wide global reach including millions of Americans who read these newspapers and I find it absolutely astonishing this description today [that there’s] some media that actually count and matter and others that do not. That is an extraordinary statement to make and absolutely unacceptable,” he added.
Mr Dewey argued in court that today’s media is global, noting that The Daily Mail had 100 million page views in the US in the month of April.
At the Tuesday hearing, Judge Nichols gave DHS a deadline of Tuesday next week – 13 June – to outline via email if it will expedite the request or provide a response.
Three agencies within DHS, including USCIS and US Customs and Border Protection, have rejected the FOIA request, but DHS HQ has so far not responded, with Mr Bardo saying during the hearing that no search for the files has been conducted at DHS HQ.
DHS said in legal filings that the US Customs and Border Protection denied the requests because Prince Harry hasn’t consented to the release of the files, with Mr Bardo saying in court that an individual’s visa is “confidential”.
Speaking to reporters outside the DC federal courthouse, Mr Dewey said that Prince Harry had foregone his right to privacy after his series of highly publicised interviews and Netflix documentary series.
Mr Dewey argued in court that the case is part of a larger probe into the conduct of the federal government, specifically into DHS supposedly not following the law in other areas of its responsibilities, such as not protecting the US border with Mexico.
“What are we asking for here?” Mr Dewey told reporters outside the courthouse. “We are only asking for the records that are related to this question that has been raised about the drug use and admission ... he's talked about it, he's written about it extensively, he has waived any privacy interest he has in his drug use, he has bragged about it in Spare and sold that.”
“We are calling for accountability, transparency and openness from the Biden presidency,” Dr Gardner said. “We believe there is a tremendous public interest in the release of these records in order to establish that US immigration law is fair, [that] it applies equally to everyone.”
“It is our view, definitely, that the public needs to see these ... documents and [what] exactly what Prince Harry put down on his application, especially in relation to his widespread drug use admitted to in Spare,” he added.
Dr Gardner said the foundation wants “to establish whether or not any favours were granted to Prince Harry, whether there was a preferential treatment given to Prince Harry in any way”.
The director of the Oversight Project at The Heritage Foundation, Mike Howell, told reporters after the hearing that “the everyday American is absolutely sick and tired of globalist elites lecturing us, looking down at us, dominating our cultural institutions, and no one proves that point more than Prince Harry”.
“They're also sick and tired of a broken immigration system, one that we see a dual standard at play every single day,” he added.
Prince Harry wrote in Spare that cocaine “didn’t do anything for me”.
“Marijuana is different, that actually really did help me,” he added.
Also on Tuesday, Prince Harry was giving evidence in his phone hacking trial in London against the publisher of a UK tabloid.