James Madison Project v. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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JAMES MADISON PROJECT, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 17-1392 (ABJ)
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DEPARTMENT OF JUSTICE, )
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Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiffs Josh Gerstein, a journalist, and The James Madison Project, an organization
established “to promote government accountability,” Compl. [Dkt. # 1] ¶ 3, brought this suit
against the Department of Justice (“DOJ”), and the Federal Bureau of Investigation (“FBI”), under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. They have requested records
related to the question of “whether President Donald J. Trump is or ever was a target of, subject
of, or material witness to any investigation.” Id. ¶ 6. The government issued what is known as a
“Glomar response,” 1 refusing to confirm or deny the existence of responsive records.
DOJ has moved for summary judgment, and plaintiffs opposed the motion and filed their
own motion for partial summary judgment. They argue that the President waived the government’s
right to insist on confidentiality with a Glomar response by making a series of public statements,
1 The term “Glomar response” originates from the Central Intelligence Agency’s (“CIA”)
refusal to confirm or deny the existence of records in response to a FOIA request relating to “the
Hughes Glomar Explorer, a ship used in a classified [CIA] project ‘to raise a sunken Soviet
submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications
equipment onboard for analysis by United States military and intelligence experts.’” Roth v. DOJ,
642 F.3d 1161, 1171 (D.C. Cir. 2011), quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir.
1981).
including tweets, in which plaintiffs contend he officially acknowledged the existence of
responsive records. Upon review of the full record, including the agency’s affidavits, the parties’
supplemental filings, and each of the alleged “official statements,” the Court will grant defendant’s
motion for summary judgment, and it will deny plaintiffs’ motion. The government has met its
burden of establishing that the information withheld is protected under FOIA Exemption 7(A), and
none of the President’s statements satisfy the “stringent test required to establish . . . a waiver.”
Pub. Citizen v. Dep’t of State, 11 F.3d 198, 199 (D.C. Cir. 1993).
BACKGROUND
On May 12, 2017, plaintiffs submitted a FOIA request to DOJ. Ex. A to Castellano Decl.
[Dkt. # 11-2] (“FOIA Request”). They sought the following records “created, received and/or
maintained by the Office of Attorney General (“AG”), the Office of the Deputy Attorney General
(“DAG”), and/or the Office of the Associate Attorney General (“AAG”)”:
(1) Any records memorializing discussions between Department of Justice
(“DOJ”) staff and FBI staff regarding whether President Trump is or ever
was a target of, subject of or material witness to any investigation; and
(2) Any records memorializing disclosures to President Trump or any White
House staff regarding whether President Trump is or ever was a target of,
subject of or material witness to any investigation;
(3) Any records memorializing discussion among DOJ staff regarding the
appropriateness of informing President Trump if he is or ever was a target
of, subject of or material witness to any investigation; and
(4) Any records memorizing [sic] discussion between DOJ staff and FBI
staff regarding the appropriateness of informing President Trump if he is or
ever was a target of, subject of or material witness to any investigation.
Id.
Plaintiffs asked for records from the period of January 1, 2016, to the date of DOJ’s search.
Id. They submitted an identical FOIA request to the FBI, a component of DOJ, on May 12, 2017.
2
Ex. A to Hardy Decl. [Dkt. # 11-1] (“FOIA Request”). As part of their request, plaintiffs advised
the agencies that the letter in which President Trump terminated then-FBI Director James Comey
“stated that Director Comey had informed him on three separate occasions that he (President
Trump) was not under investigation.” FOIA Request at 1. The requestors also noted that in a
subsequent interview with NBC News, the President stated that he asked Comey, “[A]m I under
investigation?” and that Comey responded, “You are not under investigation.” Id. at 1–2.
On June 20, 2017, the FBI issued its Glomar response asserting that the agency could
“neither confirm nor deny the existence of any records” responsive to plaintiffs’ request pursuant
to FOIA Exemptions 7(A) and 7(E). Ex. C to Hardy Decl. [Dkt. # 11-1]. Plaintiffs
administratively appealed this decision, but the agency’s final response was affirmed. Ex. D to
Hardy Decl. [Dkt. # 11-1]; Ex. C to Hardy Decl. [Dkt. # 11-1]. The DOJ did not issue a separate
response to the same FOIA request. Compl. ¶ 22.
On July 14, 2017, plaintiffs filed a two-count complaint against DOJ. See Compl. In count
one, plaintiffs challenged DOJ’s failure to respond to their request, and in count two they
challenged the FBI’s response. Id. ¶¶ 23, 32. After the suit was filed, DOJ responded by also
issuing a Glomar response, based solely on FOIA Exemption 7(A). Ex. C to Castellano Decl.
[Dkt. # 11-2].
Defendant moved for summary judgment, arguing that its Glomar response was justified
under FOIA Exemption 7(A) and that the existence of responsive records had not been officially
acknowledged. Def.’s Mot. for Summ. J. [Dkt. 11] (“Def.’s Mot.”). Plaintiffs then cross-moved
for partial summary judgment and identified additional statements from President Trump which
they argued waived the DOJ’s Glomar response. Pls.’ Cross. Mot. for Partial Summ. J.
[Dkt. # 13]; Pls.’ Mem. in Supp. of Pls.’ Mot. [Dkt. # 13-1], (collectively, “Pls.’ Cross-Mot.”).
3
After the motions were fully briefed, plaintiffs moved to supplement the factual record with more
statements, including tweets, from President Trump which they contend constitute additional
official disclosures. See Mot. For Leave to Suppl. the Factual Record [Dkt. # 21] (“First Factual
Suppl.”); Mot. For Leave to Suppl. the Record [Dkt. # 22] (“Second Factual Suppl.”); Mot. for
Leave to Suppl. the Record [Dkt. # 24] (“Third Factual Suppl.”); Mot. for Leave to Suppl. the
Record [Dkt. # 25] (“Fourth Factual Suppl.”).2 Most recently, plaintiffs filed motions to again
supplement the record with additional statements from the President and they also requested oral
argument. Mot. for Leave to Suppl. the Record and for Oral Argument [Dkt. # 28] (“Fifth Factual
Suppl.”); Mot. for Leave to File Suppl. the Record [Dkt. # 29] (“Sixth Factual Suppl.”). The Court
granted the motions to supplement, but it has determined that there is no need for oral argument.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
2 The Court permitted plaintiffs to supplement the record multiple times, but it cautioned
that the “ruling[s] should not be interpreted as a determination by the Court that these general
statements, or any other statements by the President that have been brought to the Court’s attention
in this case, are in fact material or that they constitute an official disclosure of the existence or
non-existence of records responsive to the particular FOIA request in this case.” Min. Order (Jan.
30, 2018); see also Min. Order (Mar. 1, 2018); Min. Order (May 7, 2018); Min. Order (June 8,
2018).
4
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with
cross-motions for summary judgment, it analyzes the underlying facts and inferences in each
party’s motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Id.,
at 247–48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving
party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248;
Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions for summary judgment.
Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases, the
agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989).
The Court may award summary judgment based solely on information provided in an agency’s
affidavits or declarations that identify “the justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits or
declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of other documents.’” SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA,
692 F.2d 770, 771 (D.C. Cir. 1981).
5
ANALYSIS
FOIA requires government agencies to release records upon request in order to “ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request
for records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person,”
5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions.
See 5 U.S.C. § 552(b); FBI v. Abramson, 456 U.S. 615, 630 (1982). This framework “represents
a balance struck by Congress between the public’s right to know and the government’s legitimate
interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d
918, 925 (D.C. Cir. 2003). When an agency withholds documents or parts of documents, it must
explain what it is withholding and the statutory exemptions that apply. See Vaughn v. Rosen, 484
F.2d 820, 825–28 (D.C. Cir. 1973).
In some instances, however, the government may refuse to even confirm or deny the
existence of responsive records. Wolf v. CIA., 473 F.3d 370, 374 (D.C. Cir. 2007). This is called
a “Glomar response.” Such a response is appropriate when revealing the very fact that an agency
possesses responsive records would itself “cause harm cognizable under [a] FOIA exception.” Id.,
quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (internal quotation marks omitted).
To justify a Glomar response, the agency must supply the court with a detailed affidavit
that explains why it cannot provide a substantive response pursuant to a FOIA exemption. Elec.
Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012). To determine whether a Glomar
6
response “fits a FOIA exemption, courts apply the general exemption review standards established
in non-Glomar cases.” Wolf, 473 F.3d at 374.
I. FOIA Exemption 7(A)
FOIA Exemption 7(A) permits agencies to withhold “records or information compiled for
law enforcement purposes, but only to the extent that the production of such law enforcement
records or information . . . could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A).
Plaintiffs do not dispute that the information sought is covered by this exemption. Instead,
they argue that the executive branch has waived its right to assert the exemption as the basis for
its Glomar response because the existence of responsive records has already been disclosed
through official statements. See Pls.’ Cross-Mot. at 5–13. Nonetheless, an agency bears the
ultimate burden of proving that a FOIA exemption applies, Tax Analysts, 492 U.S. at 142 n.3, so
the Court will begin its analysis there before moving on to the question of whether the exemption
has been waived.
To justify the withholding of records under Exemption 7(A), DOJ must “demonstrate that
‘disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are
(3) pending or reasonably anticipated.’” Citizens for Responsibility & Ethics in Wash. v. DOJ,
746 F.3d 1082, 1096 (D.C. Cir. 2014) (“CREW”), quoting Mapother v. DOJ, 3 F.3d 1533, 1540
(D.C. Cir. 1993). In creating the exemption, Congress recognized that “law enforcement agencies
ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their
investigations or placed at a disadvantage when it [comes] time to present their case.” CREW, 746
F.3d at 1096, quoting Robbins Tire & Rubber Co., 437 U.S. at 224.
7
The FBI’s declarant confirmed that on March 20, 2017, the then-FBI Director, James
Comey, testified before the House Permanent Select Committee on Intelligence (“HPSCI”) that
the agency was
investigating the Russian government’s efforts to interfere in the 2016
presidential election, and that includes investigating the nature of any link
between individuals associated with the Trump campaign and the Russian
government and whether there was any coordination between the campaign
and Russia’s efforts.
Hardy Decl. [Dkt. # 11-1] ¶ 19.3 But at that time, the FBI Director cautioned that “[b]ecause it is
an open, ongoing investigation and is classified, I cannot say more about what we are doing and
whose conduct we are examining.” Id.
The FBI’s declarant avers that the “Russia investigation” is still ongoing, so to the extent
plaintiffs’ request can be interpreted as a request for records pertaining to that effort, merely
confirming the existence of responsive records could significantly hamper the investigation. Id.
¶¶ 20–21.
[O]fficial confirmation of who is or who is not considered a subject or
witness in an investigation would also alert others – including other
potential subjects and witnesses – about the focus and scope of the
investigation, which could influence their behavior and testimony in ways
that adversely affects the investigation. Specifically, it would arm them
with valuable information necessary to alter or offensively structure their
testimony, and also to take defensive actions to conceal their activities,
elude detection, and destroy, adulterate, or fabricate evidence. It would also
expose any potential witnesses or sources to harassment, intimidation, or
coercion. This is true regardless of whether or not responsive records exist.
That is, regardless of whether a particular individual is or is not subject or
witness in the pending investigation, such information provides those intent
on interfering with the investigation additional pieces of information
necessary to target their behaviors in such a way as to maximize the effect
of any efforts to undermine the investigation.
3 Citing, James B. Comey, Statement Before the HPSCI, Russian Active Measures
Investigation, https://www.fbi.gov/news/testimony/hpsci-hearing-titled-russian-active-measures-
investigation (“Comey Congressional Testimony”).
8
Id. ¶ 26.
The FBI declarant adds that if plaintiffs’ request is interpreted to extend beyond the Russia
investigation, it would relate to a pending investigation that the agency has not publicly
acknowledged. Id. ¶ 27. The agency asserts that prematurely revealing an investigation carries
the same risks identified above and could ultimately interfere with the agency’s ability to
determine whether a crime was committed. Id. In further support of the motion for summary
judgment, DOJ submitted a similar declaration. See Castellano Decl. [Dkt. # 11-2] ¶¶ 12–13.
Based on the Court’s review of defendant’s declarations, it concludes that the agency has
supplied sufficient information to support its claim that merely revealing whether or not responsive
records exist would give rise to a risk of interference with law enforcement proceedings that are
pending or reasonably anticipated; therefore, a Glomar response is justified under Exemption 7(A).
See CREW, 746 F.3d at 1096; 5 U.S.C. § 552(b)(7)(A).
II. The Official Acknowledgment and Public Domain Doctrine
Once the defendant has met its burden of establishing that the FOIA exemption applies,
the burden shifts to plaintiffs to prove that the government waived its right to invoke the exemption
through a prior official statement. See Pub. Citizen, 11 F.3d at 201.
It is well established that a FOIA plaintiff may compel disclosure of information “even
over an agency’s otherwise valid exemption claim” if the government previously “officially
acknowledged” the information. ACLU v. DOD, 628 F.3d 612, 620 (D.C. Cir. 2011). The
rationale behind the doctrine is that once information has become public, any damage the agency
fears from disclosure has already been sustained. See Niagara Mohawk Power Corp. v. U.S. Dep’t
of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999). This is commonly referred to as an “official
9
acknowledgement” challenge or the “public domain exception.” See ACLU v. CIA, 710 F.3d at
422, 426–27 (D.C. Cir. 2013) (using the terms interchangeably) (“ACLU”).
A plaintiff mounting this type of challenge “bears the initial burden of pointing to specific
information in the public domain that duplicates that being withheld.” Pub. Citizen, 11 at 201; see
also Mobley v. CIA., 806 F.3d 568, 583 (D.C. Cir. 2015) (same).
The D.C. Circuit has imposed a “strict test” to be applied to claims of official disclosure.
Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). Information is officially acknowledged by
an agency where: (1) “the information requested [is] as specific as the information previously
released,” (2) the requested information “match[es] the information previously disclosed,” and (3)
the requested information was already “made public through an official and documented
disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).
In Glomar cases, however, a plaintiff need not show that that the actual contents of the
particular records sought have been disclosed; rather they must establish that the agency has
previously acknowledged the fact of the existence of responsive records. Marino v. DEA, 685 F.3d
1076, 1081 (D.C. Cir. 2012).
The D.C. Circuit has articulated the official acknowledgment test in Glomar cases as
follows:
[I]f the prior disclosure establishes the existence (or not) of records
responsive to the FOIA request, the prior disclosure necessarily matches
both the information at issue – the existence of records – and the specific
request for that information.
Wolf, 473 F.3d at 379. This standard has been reaffirmed by the D.C. Circuit in subsequent Glomar
cases. See Moore, 666 F.3d at 1333 (holding that a plaintiff must “pinpoint an agency record that
both matches the plaintiff’s request and has been publicly and officially acknowledged by the
10
agency.”); see also Mobley v. CIA., 806 F.3d 568, 583 (D.C. Cir. 2015) (re-stating the three-part
Fitzgibbon official acknowledgement test).
The D.C. Circuit has repeatedly emphasized the importance of the applying this test with
rigor, because “the fact that information exists in some form in the public domain does not
necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption.”
Wolf, 473 F.3d at 378, citing Fitzgibbon, 911 F.2d at 766. Therefore, “[p]rior disclosure of similar
information does not suffice; instead, the specific information sought by the plaintiff must already
be in the public domain by official disclosure.” Morley v. CIA., 508 F.3d 1108, 1124 (D.C. Cir.
2007) (emphasis in original).
If a court determines that a Glomar response has been waived because the information was
previously officially acknowledged, then the government must either: “(1) disclose the record to
the requester or (2) establish that its contents are exempt from disclosure and that such exemption
has not been waived.” Moore, 666 F.3d at 1333. In other words, a failed Glomar response “does
not mark the end” of a case. ACLU, 710 F.3d at 432. Instead, the case is remanded to the agency
to process the FOIA request and assert any exemptions to disclosure on a document by document
based on their content. Wolf, 473 F.3d at 379–80.
III. The Statements
Plaintiffs do not point to any statements issued by the FBI or DOJ that explicitly
acknowledge that the agency has records on whether President Trump was or is a target, subject,
or material witness of an investigation. Indeed, the only official statement in the record made by
the FBI is the March 2017 Congressional testimony of then-Director Comey, in which he expressly
declined to provide details on the Russia investigation, much less whether any particular
individuals had been designated to be targets, subjects, or witnesses: “Because it is an open,
11
ongoing investigation and is classified, I cannot say more about what we are doing and whose
conduct we are examining.” Comey Congressional Testimony.
Plaintiffs base their case solely on statements made by President Trump, including some
of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist
based on the President’s summaries of conversations he had with the former FBI director as well
as a number of vague, and sometimes hostile, comments made on social media concerning the
investigation.
The D.C. Circuit has recognized that a President may be capable of waiving an agency’s
Glomar response in some circumstances. Although typically a “[d]isclosure by one federal agency
does not waive another agency’s right to assert a FOIA exemption,” Mobley, 806 F.3d at 583, a
prior disclosure “made by an authorized representative of the agency’s parent,” including the
President, can trigger a waiver. ACLU, 710 F.3d at 426 n.7.4 However, this does not mean that
any statement from the President automatically waives an agency’s Glomar response. The Court
4 Three recent district court cases from this Circuit have interpreted this footnote to mean
that the President can waive an agency’s Glomar response because he is the head of the executive
branch. Judicial Watch, Inc. v. DOJ, 293 F. Supp. 3d 124, 128 n.4 (D.D.C. 2018) (noting that
although the official disclosure must come from the specific agency the FOIA request was made
to, “the D.C. Circuit has stated that an acknowledgment of records’ existence by a parent agency
– such as the President as head of the Executive Branch – is imputed to its component agencies”),
citing ACLU, 710 F.3d at 429 n.7; James Madison Project v. DOJ, 302 F. Supp. 3d 12, 24 (D.D.C.
2018), recons. denied in part, 17-CV-00144, 2018 WL 3956426 (D.D.C. Aug. 16, 2018) (“The
D.C. Circuit has recognized that ‘[a] disclosure made by the President, or by [an] advisor acting
as instructed by the President,’ is attributable to executive branch agencies for purposes of the
official acknowledgement doctrine.”) (internal quotation marks omitted), quoting ACLU, 710 F.3d
at 429 n.7; Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45, 57 (D.D.C. 2015) (noting that NSA
rightfully concedes, based on case law, that the President’s statement to the press and
administration’s white paper were attributable to the NSA), citing ACLU, 710 F.3d at 429 n.7.
In each of these cases, however, the court found that the President’s statement had not
waived the agency’s Glomar response because the statement failed to meet the three criteria of the
official disclosure test.
12
must consider whether the President’s statement meets the other requirements of the official
acknowledgment test, including the rule that the information publicly disclosed must “match” the
information sought in the request. Fitzgibbon, 911 F.2d at 765.
Plaintiffs bear the burden of overcoming the government’s Glomar response by pointing
to the “specific information in the public domain that duplicates that being withheld,” Pub. Citizen,
11 F.3d at 201, and here, they have directed the Court’s attention to twelve statements by the
President which they describe as relating to the “Russian collusion” investigation or the alleged
“obstruction of justice” investigation. Pls.’ Cross-Mot. at 4. Based on the individual analysis to
be set forth below, the Court finds that none of the statements identified by the plaintiffs satisfy
the stringent legal test for an official acknowledgment. No statement explicitly acknowledges the
existence of responsive records within the FBI or DOJ, and none of them “match” the information
sought in the FOIA request. Moreover, the Court cannot infer that the President based any of his
assertions on FBI and DOJ records because he makes no reference to any such material in his
statements, Moore, 666 F.3d at 1333, and none of the statements provided are “tantamount to an
acknowledgment” that the FBI or DOJ has responsive records. ACLU, 710 F.3d at 431.5
1. May 9, 2017 Statement in Comey Termination Letter
Plaintiffs point to President Trump’s May 9, 2017 letter to former FBI Director James
Comey. In terminating the Director from his position, the President declared:
While I greatly appreciate you informing me, on three separate occasions,
that I am not under investigation, I nevertheless concur with the judgment
of the Department of Justice that you are not able to effectively lead the
Bureau.
5 The Court does not need to reach the question of whether a Presidential statement on
Twitter, standing alone, can or should be deemed to be an official statement by the executive
branch for these purposes, since the tweets identified fall far short of being official
acknowledgments for other reasons.
13
Pls.’ Cross-Mot. at 5.6
This sentence implicitly asserts that there were certain exchanges between the then FBI
director and the President concerning the investigation, but the highly summary introductory
clause does not provide any details on how information was transmitted or what was
communicated. There is no mention of any “agency record” or written memorandum that was
shared with the President or was referenced in the conversation. See Moore, 666 F.3d at 1333.
Moreover, the general phrase “not under investigation” does not mirror the specificity of the
request, which seeks records on whether the President “is or ever was a target of, subject of
6 Citing, Trump’s letter firing FBI Director James Comey, CNN (May 10, 2017),
https://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/index.html.
14
or material witness.” 7 FOIA Request. These terms have specific meaning that is not captured by
the President’s language. Plaintiffs contend that this is an “overly-literal” interpretation, Pls.’
Cross-Mot. at 10, but the “insistence on exactitude” is what the official acknowledgment doctrine
demands. Wolf, 473 F.3d at 378.
Plaintiffs acknowledge that the specificity requirements articulated in Wolf govern this
case, but they argue that the D.C. Circuit’s ruling in ACLU established some “latitude” on how
strictly to apply the test. Pls.’ Reply in Supp. of Pls.’ Cross-Mot. [Dkt. # 17] (“Pls.’ Cross-Reply”)
at 3. They contend that the ACLU ruling permits courts to “infer” the existence or non-existence
of responsive records, even when the official disclosure does not specifically mention any records,
7 The President’s statements do not speak in terms of “target, subject, or material witness”
at all. The terms “target” and “subject” are terms of art that are used in federal law enforcement
investigations, and they have specific definitions that are set out in the U.S. Attorneys’ Manual
§ 9-11.151:
A “target” is a person as to whom the prosecutor or the grand jury has
substantial evidence linking him or her to the commission of a crime and
who, in the judgment of the prosecutor, is a putative defendant. An officer
or employee of an organization which is a target is not automatically
considered a target even if such officer’s or employee’s conduct contributed
to the commission of the crime by the target organization . . .
A “subject” of an investigation is a person whose conduct is within the
scope of the grand jury’s investigation.
Plaintiffs use the words loosely, and they appear to be unaware that the third category
should probably be “witness,” not “material witness.” The term “material witness” is not defined
in this portion of the USAM, and it is a designation that serves an entirely different purpose and
appears to have no applicability to the investigation at issue in this case, though it appears in the
Bail Reform Act. See 18 U.S.C. § 3144 (“If it appears from an affidavit filed by a party that the
testimony of a person is material in a criminal proceeding, and if it is shown that it may become
impracticable to secure the presence of the person by subpoena, a judicial officer may order the
arrest of the person and treat the person in accordance with the provisions of section 3142 of this
title.”); see also Fed. R. Crim. P. 15(a)(2).
A “witness,” in the context of law enforcement investigations, on the other hand, can
include an individual who is summoned to testify before a grand jury.
15
if to conclude otherwise would be “neither logical nor plausible.” Id.
While the D.C. Circuit’s opinion in the ACLU case does indicate that a court may infer the
existence or non-existence of records from an official statement in certain situations, this is not
one of those situations. In ACLU, the plaintiffs sought the release of records from the CIA
regarding the operation of drones by the CIA and Armed Forces, and the agency invoked a Glomar
response. 710 F.3d at 425, 427. The agency argued that it had never officially disclosed the
existence of any records that would show whether the CIA in particular had any involvement or
interest in the drone strikes in question, and it explained that it invoked Glomar to avoid either
confirming or denying that interest. Id. at 430–431. The D.C. Circuit Court found that public
statements made by the President of the United States (in a live internet forum), the President’s
counter-terrorism advisor (in a public speech), and the Director of the CIA (in a public speech)
officially disclosed the existence of the CIA’s interest in drones, making the CIA’s Glomar
response illogical. Id. at 429–31. Because the statements made by the President, the counter-
terrorism advisor, and, especially, the CIA Director were so specific, 8 the Court found that they
were “tantamount to an acknowledgment that the CIA has documents” matching the plaintiffs’
request, making it “neither logical nor plausible to maintain that the Agency does not have any
documents relating to drones.” Id. at 431 (internal quotation marks omitted).
Here, both the substance of the President’s official statement and the context is
distinguishable. First, the statements that formed the basis for the finding in ACLU were lengthy
and highly specific. Second, in this case, the government’s justification for withholding
8 When asked about remote drone strikes, the then-Director of the CIA stated, “because these
are covert and secret operations I can’t go into particulars. I think it does suffice to say that these
operations have been very effective because they have been very precise in terms of the
targeting . . . I can assure you that in terms of a particular area, it is very precise.” ACLU, 710 F.3d
at 430.
16
information is not merely based on a desire to keep its “interest” in the subject matter confidential;
the agency has identified the particular harms that could flow from revealing the specific
information sought – the “identities of subjects or witnesses, or the scope” of the ongoing Russia
investigation. Hardy Decl. ¶¶ 23–25; see also Castellano Decl. ¶¶ 13–14. Third, the Court in
ACLU relied on a combination of statements, including those made by the President, but it placed
a particular emphasis on the public statements made by the CIA itself.9 See ACLU, 710 F.3d at
431. Here, plaintiffs rely solely on statements made by the President, and none from the DOJ or
the FBI. This difference bears upon the resolution of the official acknowledgment question in this
case because in several of the statements, the President appears to be speaking in opposition to,
rather than on behalf of, the investigation itself and the agencies involved.
So while a President may be included among the executive branch officials who can waive
the confidentiality needed to sustain an agency’s Glomar response, it is still necessary that any
statement proffered meet the matching and specificity requirements. When a plaintiff asks a court
to take the extraordinary step of looking past the fact that an official statement does not on its face
reveal whether responsive records exist, then it is imperative that both the context and substance
of the official disclosures “leave no doubt” as to that fact, see ACLU, 710 F.3d at 429,
9 After quoting the CIA director’s remarks, the Court in ACLU reasoned:
[T]he Director spoke directly about the precision of targeted drone strikes,
the level of collateral damage they cause, and their usefulness in comparison
to other weapons and tactics. Given those statements, it is implausible that
the CIA does not possess a single document on the subject of drone strikes.
Unless we are to believe that the Director was able to “assure” his audience
that drone strikes are “very precise and . . . very limited in terms of collateral
damage” without having examined a single document in his agency's
possession, those statements are tantamount to an acknowledgment that the
CIA has documents on the subject.
ACLU, 710 F.3d at 431.
17
and that the public statements are “tantamount to an acknowledgment that the [agency] had
documents on the subject.” Id. at 431. The President’s summary reference to what he may have
been told by Director Comey does not meet that high bar.
2. May 11, 2017 NBC News Interview
Plaintiffs have also pointed to excerpts from the President’s May 11, 2017 interview with
NBC reporter Lester Holt. During the conversation, the President was asked about the termination
of the FBI Director two days before:
LESTER HOLT: Let me ask you about your termination letter to Mr. Comey. You
write: “I greatly appreciate you informing me on three separate occasions that I
am not under investigation.” Why did you put that in there?
DONALD TRUMP: Because he told me that. I mean he told me it.
LESTER HOLT: He told you weren’t under investigation [OVER TALK]
regardless –
DONALD TRUMP: Yeah and I’ve – I’ve heard that from others I think –
LESTER HOLT: Was it in a phone call, did you meet face to face?
DONALD TRUMP: Uh, I had a dinner with him. He wanted to have dinner because
he wanted to stay on. We had a very nice dinner at the White House [OVER TALK]
LESTER HOLT: He asked for the dinner?
DONALD TRUMP: A dinner was arranged, I think he asked for the dinner. And
he wanted to stay on as the FBI head. And I said I’ll, you know, consider and we’ll
see what happens – But we had a very nice dinner. And at that time, he told me you
are not under investigation. [OVER TALK]
LESTER HOLT: That was –
DONALD TRUMP: Which I knew anyway.
LESTER HOLT: That was one meeting. What was it, what were the other two?
[OVER TALK]
18
DONALD TRUMP: First of all, when you’re under investigation, you’re given all
sorts of documents and everything. I knew I wasn’t under and I heard it was stated
at the committee, at some committee level, that I wasn’t. Number one.
LESTER HOLT: So that didn’t come directly from him?
DONALD TRUMP: [OVER TALK] Then during a phone call he said it. And then
during another phone call he said it. So he said it once at dinner and then he said it
twice during phone calls.
LESTER HOLT: Did you call him?
DONALD TRUMP: Uh, in one case I called him and one case he called me.
LESTER HOLT: And did you ask, “Am I under investigation?”
DONALD TRUMP: I actually asked him, yes. I said, “If it’s possible, would you
let me know am I under investigation?” He said you are not under investigation.
LESTER HOLT: But he’s, he’s given sworn testimony that there is an ongoing
investigation into the Trump campaign and possible collusion with the Russian
government? You were the centerpiece of the Trump campaign so [OVER TALK]
was he being truthful when he says you weren’t under investigation?
DONALD TRUMP: [OVER TALK] Well, all I can tell you is, well I know what, I
know that I’m not under investigation. Me. Personally. I’m not talking about
campaigns. I’m not talking about anything else. I’m not under investigation.
Pls.’ Cross-Mot. at 7 (emphasis in original).10
The President’s statements provide more details on the “three occasions” referenced in the
termination letter. He asserts that Comey told him he was not “under investigation” once at a
dinner and during two phone calls. But again, none of these statements summarizing conversations
with the FBI official explicitly refer to the existence of any record within the agency, or necessarily
10 Citing, Partial transcript: NBC New Interview with Donald Trump, CNN (May 11, 2017),
https://www.cnn.com/2017/05/11/politics/transcript-donald-trump-nbc-news/index.html (“NBC
Interview Transcript”).
19
imply the existence of such records.11 And the President’s vague references to what he had heard
from “others” and what was said at “some committee level” as part of the basis for his belief that
he is not under investigation muddy the waters and do not point to the existence of responsive
records within the FBI or DOJ. NBC Interview Transcript.
Because plaintiffs did not “pinpoint an agency record that both matches the plaintiff’s
request and has been publicly and officially acknowledged by the agency” the Court finds that the
President did not waive defendant’s Glomar response during the televised interview. Moore, 666
F.3d at 1333. The Court also finds that ACLU is inapplicable here for the reasons stated above
and declines to draw inferences from this insubstantial record on whether responsive records exist.
Based on these statements it does not inexorably follow that the FBI and DOJ possess records on
whether the President is or ever was the subject of, target of or material witness to a DOJ
investigation.12
11 Indeed, the President seems to suggest that he knows he is not under investigation because
he was not provided with records: “First of all, when you’re under investigation, you’re given all
sorts of documents and everything.” NBC Interview Transcript.
12 The same reasoning applies to the statement plaintiffs recently identified concerning the
President’s August 30, 2018 tweet: “The only thing James Comey ever got right was when he said
that President Trump was not under investigation!” Pls.’ Fifth Factual Suppl. Because the
statement does not expressly identify a record, does not mirror the information sought in the
request, see Wolf, 473 F.3d at 378–79, and is not “tantamount to an acknowledgment” that the
agency has documents, the Court finds that it does not constitute an official acknowledgment.
ACLU, 710 F.3d at 431.
20
3. July 19, 2017 New York Times Interview
Plaintiffs assert that the President “reiterated” that he was not being “personally
investigated” in a July 19, 2017 interview with the New York Times in which he said with respect
to “the Russian investigation,” “it’s not on me.” Pls.’ Cross-Mot. at 7.13
This vague statement, plainly does not match the information sought in the FOIA request,
Fitzgibbon, 911 F.2d at 765, nor does it acknowledge or clearly implicate the existence of
responsive records housed within the FBI or DOJ.
4. October 20, 2017 Statement to Reporters
The next statement fails for similar reasons. Plaintiffs assert that on October 20, 2017,
President Trump told reporters that “he had not been asked by Special Counsel Robert Mueller to
be interviewed as part of any investigation.” Pls.’ Cross-Mot. at 8.14 This statement does not begin
to align with the FOIA request, and it does not reveal the existence of the particular records sought.
And in fact, the statement quoted in the article is even more vague than that. The article
reports that when a reporter asked the President if he would do an interview with the Special
Counsel, he responded, “I don’t know. I mean – nobody’s asked me to do that.” The Hill Article.
This vague statement asserting a lack of personal knowledge, which concerns a request to be
interviewed and not a formal designation as a target, subject, or witness, and makes no reference
to a specific record that might match the FOIA request, does not begin to meet the “stringent test
required” to establish a waiver. Pub. Citizen, 11 F.3d at 199.
13 Citing, Excerpts from The Time’s Interview with Trump, N.Y. Times (July 19, 2017),
https://www.nytimes.com/2017/07/19/us/politics/trump-interview-transcript.html.
14 Citing, Jesse Byrnes, Trump: ‘I don’t know’ if I’ll interview with Mueller for Russia probe,
The Hill (Oct. 20, 2017), http://thehill.com/homenews/administration/356481-trump-i-dont-
know-if-ill-interview-with-mueller (“The Hill Article”).
21
5. June 9, 2017 Press Statement
Plaintiffs have also supplied statements they allege are related to an “obstruction of justice”
investigation against the President which the FBI has neither confirmed nor denied. Pls.’ Cross-
Mot. at 8. They cite a June 9, 2017, press statement from President Trump asserting that “he would
be willing to testify under oath about the conversations he had with Director Comey prior to firing
him on May 9, 2017.” Pls.’ Cross-Mot. at 8.15
Plaintiffs’ rush to inform the Court of every Presidential utterance such as this was not
well-advised. There is obviously no “match” between this statement and the information sought;
at best, the statement recognizes that the conversations with Comey may be a subject of an inquiry.
The statement to the press expressing a willingness to “testify” is just that, and it does not constitute
an official statement revealing the existence of records relating to whether he “is or ever was a
target of, subject of or material witness to any investigation.” FOIA Request.
6. June 16, 2017 Tweet
Plaintiffs point to a June 16, 2017 tweet in which the President exclaims:
I am being investigated for firing the FBI director by the man who told me
to fire the FBI Director! Witch hunt
Pls.’ Cross-Mot. at 8.16
Plaintiffs claim that this tweet officially acknowledged the existence of the “obstruction of
justice investigation” against the President. Pls.’ Cross-Reply at 13. But they have conceded that
the President “exclusively” relied on a Washington Post article published two days earlier when
15 Citing, Dan Merica, Trump: I’m willing to testify under oath about Comey Claims, CNN
(June 9, 2017), https://www.cnn.com/2017/06/09/politics/trump-news-conference/index.html.
16 Citing, Donald Trump (@realDonaldTrump), Twitter (Jun. 16, 2017, 6:07 AM),
https://twitter.com/realdonaldtrump/status/875701471999864833.
22
he made this declaration. Pls.’ Resp. to Def.’s Notice of Suppl. Auth. [Dkt. # 19] at 4.17 And that
article in turn relied on unnamed sources to report that the Special Counsel was allegedly
investigating the President for obstruction. Since the President’s statement does not explicitly
mention any records, and plaintiffs ruled out the possibility that it was even premised on
government information, let alone DOJ or FBI records, the statement cannot be read as disclosing
the existence of responsive records.
The law is clear that “an agency’s official acknowledgement of information by prior
disclosure . . . cannot be based on mere public speculation, no matter how widespread.” Wolf, 473
F.3d at 378, citing Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). This is true
even when that speculation is repeated (or re-tweeted) by the President. By acknowledging that
the President was responding to the Washington Post article when he expressed his shock and
disbelief, and that he was not broadcasting government information, plaintiffs have conceded that
the President’s statement cannot be deemed to be an official waiver. As the D.C. Circuit has
advised, “it is one thing for a reporter or author to speculate or guess that a thing may be so or
even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position
17 Citing, Delvin Barrett, Special Counsel is investigating Trump for possible obstruction of
justice, officials say, Wash. Post (Jun. 14, 2017), https://www.washingtonpost.com/world/
national-security/special-counsel-is-investigating-trump-for-possible-obstruction-of-justice/2
017/06/14/9ce02506-5131-11e7-b064-828ba60fbb98_story.html?utm_term=.385adbb1ea0b.
23
to know of it officially to say that it is so.” Fitzgibbon, 911 F.2d at 765.18 Because the President’s
tweet amounts to speculation, it does not overcome defendant’s Glomar response.
After filing their cross-motion, plaintiffs supplemented the factual record with six
additional statements which they argue waived the government’s Glomar response as it relates to
what they label as the “Russian collusion” and the “obstruction of justice” investigations. First
Factual Suppl. at 3.
7. January 24, 2018 Press Statements
On January 24, 2018, President Trump engaged in the following discussion with reporters
regarding the Special Counsel’s investigation:
REPORTER: Are you going to talk to Mueller?
TRUMP: I’m looking forward to it, actually.
REPORTER: Do you have a date set? Do you have a date set, Mr. President?
TRUMP: There’s been no collusion whatsoever. There’s no obstruction
whatsoever. And I’m looking forward to it . . .
REPORTER: Do you have a date set, Mr. President?
TRUMP: I don’t know, no. I guess you’re talking about two or three weeks, but I
would love to do it.
REPORTER: In person?
TRUMP: You know, again, it’s — I have to say — subject to my lawyers and all
of that — but I would love to do it . . .
18 Plaintiffs contend that the Court has “the discretionary authority to incorporate by reference
unofficial disclosures that have been officially acknowledged,” so it should incorporate by
reference the June 14, 2017 Washington Post article into the President’s tweet. Cross-Reply at 7–
11. Plaintiffs do not cite to any legal authority in support of their novel argument, and the Court
is disinclined to presume to flesh out the President’s expressions of his own thoughts. In any event,
the Court has already explained that media accounts cannot overcome the government’s Glomar
response.
24
TRUMP: Because here’s what we’ll say, and everybody says: No collusion. There’s
no collusion. Now they’re saying, “Oh, well, ‘Did he fight back? Did he fight
back?’ You fight back, ‘Oh, it’s obstruction.’ So, here’s the thing: I hope so.
REPORTER: How do you define collusion? Maggie asked this earlier during the
briefing to Sarah –
TRUMP: You’re going to define it for me, OK? But I can tell you, there’s no
collusion. I couldn’t have cared less about Russians having to do with my
campaign.
First Fact Suppl. at 2–3.19
Plaintiffs argue that these disclosures, “confirm the existence of records responsive to the
Plaintiffs’ FOIA requests, specifically in so much as they verify the existence of records
memorializing discussions within DOJ and disclosures to President Trump (or his legal team)
regarding the extent to which he is a subject or target of either of the two aforementioned
investigations.” Id. at 3.
This is a highly unpersuasive characterization of the President’s pronouncements, which
say nothing of the sort. In this interview, the President reiterates his personal desire to speak with
the Special Counsel and his position concerning what took place during the campaign. The
statements do not “match” the plaintiffs’ specific record request; they do not bear on the question
of whether the President is a target, subject, or material witness in an investigation. Furthermore,
President Trump’s unremarkable statement that the setting of a date for any meeting with the
Special Counsel would be “subject to [his] lawyers” does not expressly acknowledge the existence
of records memorializing disclosures from the DOJ to the President’s legal team about his status.
19 Citing, Trump audio transcript: ‘I’m Looking forward to’ speaking with Mueller, Wash.
Post. (Jan. 24, 2018), https://www.washingtonpost.com/news/post-politics/wp/2018/01/24/trump-
audio-transcript-im-looking-forward-to-speaking-with-mueller/?utm_term=.3c9d96fc8edd.
25
Furthermore, the statements are too vague and ambiguous to warrant an ACLU type of
analysis. See generally ACLU, 710 F.3d 422. When the President refers to what “they” are saying,
it is not at all clear whether he is referring to law enforcement personnel or media commentators.
This statement bears no resemblance to the CIA Director’s statements about military technology
which were so detailed, they were deemed by the Court of Appeals to be “tantamount to an
acknowledgment that the CIA has documents on the subject.” Id.
8. February 24, 2018 Release of HPSCI Memorandum
Next, plaintiffs argue that a memorandum drafted by the minority staff of the House
Permanent Select Committee on Intelligence (“HPSCI”) constitutes an official acknowledgement
of the information at issue. Second Factual Suppl. at 3. The memorandum, titled “Correcting the
Record-The Russia Investigation,” but referred to by plaintiffs as the “Schiff Memo,” was written
in response to a memorandum drafted by the majority members of the committee, referred to as
the “Nunes Memo.” Id. at 2. The Schiff Memo was declassified by the President on February 24,
2018. Id. Plaintiffs point to a single line of the Schiff memo: “FISA was not used to spy on
[President] Trump or his campaign,” which they argue constitutes an official acknowledgment of
the “existence or non-existence of records” sought in their FOIA request. Id. at 3. (emphasis in
original).
A memorandum issued by members of a House Committee cannot constitute an official
disclosure on behalf of the FBI and DOJ. The D.C. Circuit has explicitly stated that “[d]isclosure
by one federal agency does not waive another agency’s right to assert a FOIA exemption,” and by
extension a Glomar response. Mobley, 806 F.3d at 583; see also Frugone v. CIA, 169 F.3d 772,
774 (D.C. Cir. 1999) (“[W]e do not deem ‘official’ a disclosure made by someone other than the
agency from which the information is being sought.”). And Members of Congress cannot
26
officially disclose the existence of records on behalf of DOJ because members of a separate branch
of government, particularly members of the opposing party, do not speak for an executive agency.
Cf. Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982) (“[B]are discussions by this
court and the Congress of NSA’s methods generally cannot be equated with disclosure by the
agency itself of its methods of information gathering.”).
Even if the President’s decision to de-classify and release the memorandum somehow
transformed the statement into one of his own for purposes of this analysis, the single sentence
stating that FISA was not “used to spy on [President] Trump or his campaign” does not specifically
mirror the plaintiffs’ FOIA request. It does not pertain to whether DOJ has records memorializing
internal discussions or disclosures to the President about the President’s status as a subject, target
or material witness to any investigation. The fact that the DOJ withdrew its Glomar response as
to the existence of the Carter Page FISA applications in other FOIA litigation, see Second Factual
Suppl. at 2, is entirely irrelevant to this case.
9. May 1, 2018 Tweets
Plaintiffs rely on more tweets from the President as evidence of an official
acknowledgment of responsive records. On May 1, 2018, between 3:47 AM and 4:45 AM,
President Trump made several comments on Twitter after the New York Times reported on a leaked
document that allegedly contained a list of interview questions that the Special Counsel sent to
President Trump’s lawyers:
So disgraceful that the questions concerning the Russian Witch Hunt were
leaked to the media. No questions on collusion. Oh, I see . . . you have a
made up, phony crime, Collusion, that never existed, and an investigation
begun with illegally leaked classified information. Nice!
27
Third Factual Suppl. at 2–3.20
It would seem very hard to obstruct justice for a crime that never happened!
Witch hunt!
Id. at 3.21
There was no Collusion (it is a Hoax) and there is no Obstruction of Justice
(that is a setup & trap). What there is is [sic] Negotiations going on with
North Korea over Nuclear War, Negotiations going on with China over
Trade Deficits, Negotiations on NAFTA, and much more. Witch Hunt!
Id.22
Plaintiffs argue that “[a]t a minimum, this represents an official acknowledgment that
President Trump is a subject of and/or material witness to the two investigations and that the DOJ
has both discussed that fact within the agency and disclosed that fact to President Trump’s personal
legal team.” Id. at 3.
As stated before, an official acknowledgment cannot be based on “public speculation, no
matter how widespread.” Wolf, 473 F.3d at 378. Here again, plaintiffs admit that President
Trump’s exclamations were sparked by information disseminated by the press, rather than
government documents, so those tweets cannot constitute an official acknowledgment.
Plaintiffs argue that the problem is cured in this situation because the President’s tweets
officially acknowledged the “authenticity” of the leaked questions. Pls.’ Third Suppl. at 2. That
is quite a stretch. The President complains that it was “disgraceful that the questions concerning
20 Citing, Donald Trump (@realDonaldTrump), Twitter (May 1, 2018, 3:47 AM),
https://twitter.com/realDonaldTrump/status/991267863674675200.
21 Citing, Donald Trump (@realDonaldTrump), Twitter (May 1, 2018, 4:34 AM),
https://twitter.com/realDonaldTrump/status/991279620044591105.
22 Citing, Donald Trump (@realDonaldTrump), Twitter (May 2, 2018, 4:45 AM),
https://twitter.com/realdonaldtrump/status/991644756995444736?s=21.
28
the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the
questions” (emphasis added), the tweet does not confirm or even imply that the published list is
accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single
article in a rambling set of comments issued at 4:00 in the morning.
Moreover, the D.C. Circuit has repeatedly distinguished between official
acknowledgments and leaks to the media. See e.g., Afshar, 702 F.2d at 1130–31 (distinguishing
between “official acknowledgment” and “[u]nofficial leaks and public surmise”); Fitzgibbon, 911
F.2d at 765; see also All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, 134 F.
Supp. 3d 201, 208 (D.D.C. 2015) (“Leaked information and documents . . . do not constitute
official acknowledgment.”); Judicial Watch, Inc. v. DOJ, 898 F. Supp. 2d 93, 108 (D.D.C. 2012)
(“[A]n anonymous leak is presumptively an unofficial and unsanctioned act.”). Because the
President’s tweets are premised on a news account quoting leaked, therefore unofficial,
information, they do not amount to an official acknowledgement of the existence of responsive
records maintained by the DOJ and FBI.
The second and third tweets in the series are even further from official acknowledgments
than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup &
trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is
vociferously attacking the investigators makes the proposition that he was speaking on their behalf
in this instance somewhat dubious.
10. June 2, 2018 Tweet
Plaintiffs also point to a June 2, 2018 tweet from President Trump:
There was No Collusion with Russia (except by the Democrats). When will
this very expensive Witch Hunt Hoax ever end? So bad for our Country. Is
the Special Counsel/Justice Department leaking my lawyers letters to the
Fake News Media? Should be looking at Dems corruption instead?
29
Fourth Factual Suppl., at 1 (emphasis in original).23
Plaintiffs characterize this tweet as being in response to yet another New York Times article
on a leaked document, this time an alleged memorandum from President Trump’s lawyer to
Special Counsel Mueller. Id. at 2. They assert that the President’s tweet confirmed the
“authenticity” of the leaked legal memorandum. Id.
As stated before, a Presidential statement premised on unofficial information, such as a
news story, is not an official acknowledgment. See Fitzgibbon, 911 F.2d at 765; Wolf, 473 F.3d
at 378, citing Afshar, 702 F.2d at 1130. Furthermore, even if President Trump’s tweet was based
on official information, the specific record he mentions, a memorandum from his legal team to the
Special Counsel, does not fall within the scope of documents sought in the FOIA request since it
is not a record memorializing discussions between or among DOJ staff and the FBI, nor is it a
disclosure made to the President or White House staff. These distinctions are not trivial; to
overcome a Glomar response, plaintiffs must “pinpoint” disclosed records that specifically
“match” the requested records, Moore, 666 F.3d at 1333, and here they have not done so.
11. September 4, 2018 The Daily Caller Interview
Plaintiffs have recently supplied the Court with evidence of statements the President made
during a September 4, 2018 interview with The Daily Caller:
I view it as an illegal investigation. It should not have never been allowed
to start. You know, I’m not a target of this investigation, just in case you
don’t realize.
23 Citing, Donald Trump (@realDonaldTrump), Twitter (Jun. 2, 2018, 10:43 AM),
https://twitter.com/realDonaldTrump/status/1002968869043097600.
30
Pls.’ Sixth Factual Suppl. at 2 (emphasis in original).24 While the President uses the word “target,”
which is included in the FOIA request, this statement also falls short of the requirements for an
official acknowledgment because among other reasons, it does not reveal the basis for the
President’s conclusory declaration. He does not expressly mention a particular record maintained
or disclosed by the FBI. And to the extent, plaintiffs would argued based on the D.C. Circuit’s
ruling in ACLU, that the statement provides grounds to infer the existence of records, the statement
is easily distinguished from the highly specific statements made in that case by officials of the
particular agency involved. Here the statement is quiet general, and once again the President
appears to be speaking in opposition to, rather than on behalf of, the investigative agencies.25
24 Citing, Exclusive: Trump Says ‘Conflicted’ Mueller is Leading ‘An Illegal Investigation,’
The Daily Caller (Sept. 4, 2018), https://dailycaller.com/2018/09/04/trump-mueller-conflicted/.
25 Plaintiffs filed a notice of supplemental authority that directed the Court’s attention to,
James Madison Project v. DOJ, 17-CV-00144, 2018 WL 3956426, at *4 (D.D.C. Aug. 16, 2018),
a recent Glomar ruling issued by another court in this district. That opinion, which is not binding
on this Court, is also distinguishable because there the court found that reconsideration was
warranted because a subsequent disclosure “expressly refers to the document [p]laintiffs seek” –
the two-page synopsis of the Steele dossier. Id.
31
CONCLUSION
Because defendant has justified its Glomar response through sufficiently detailed
affidavits, and plaintiffs have not put forth any official statements that meet the stringent
requirements to constitute a waiver, the Court will grant defendant’s motion for summary
judgment, and it will deny plaintiffs’ cross-motion.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: September 7, 2018
32