UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD,

Plaintiff, Civil Action No. 22-1921 (BAH) v. Judge Beryl A. Howell FEDERAL BUREAU OF INVESTIGATION, et al.,

Defendants.

MEMORANDUM OPINION

Despite filling nearly 400 pages, including exhibits and declarations, briefing in this case

fell behind developments in the real world that carry fatal consequences for the agency’s

proffered rationale for withholding records responsive to a request under the Freedom of

Information Act (“FOIA”),

et seq. Absent correct application of an exemption,

disclosure is required to allow the American people to learn about actions of government

officials that the officials themselves may not otherwise want to be made public. As the D.C.

Circuit has long made clear: “One basic general assumption of the FOIA is that, in many

important public matters, it is for the public to know and then to judge.” Stern v. FBI,

(D.C. Cir. 1984).

The FOIA request at issue in this lawsuit was filed by plaintiff Jason Leopold with the

Federal Bureau of Investigation (“FBI”), on February 22, 2022, following published reports that

President Donald Trump (“President Trump”) allegedly flushed some presidential records down

the toilet when he was still in the White House and brought presidential records, including

sensitive classified documents, to his personal residence in Florida. Pl.’s Statement of

Undisputed Material Fact (“Pl.’s SUMF”) ¶¶ 1-5, 10, ECF No. 34-2; Pl.’s Reply Supp. Cross- 1 Mot. Summ. J. (“Pl.’s Reply”) at 6, ECF No. 40 (noting “[t]he request was plainly targeting”

records “that President Trump had allegedly flushed records down the White House toilet”).

Presidential records are those “documentary materials, or any reasonably segregable portions

thereof, created or received by the President, the President’s immediate staff, or a unit or

individual of the Executive Office of the President whose function is to advise or assist the

President, in the course of conducting activities which relate to or have an effect upon the

carrying out of the constitutional, statutory, or other official or ceremonial duties of the

President.”

(2). These records belong to the “United States,” see

, not any individual office holder, and are to be handled in accordance with the provisions

found in

et seq.

Plaintiff requested five categories of information related to “Presidential Records

removed from the Trump White House that were stored at Mar-a-Lago” and an additional

category of information related to “Presidential Records from the Trump White House that were

destroyed and Presidential Records from the Trump White House that were allegedly flushed

down the toilet” (“sixth category” or “Item No. 6”). Defs.’ Statement of Undisputed Material

Facts (“Defs.’ SUMF”) ¶ 1, ECF No. 31-2.1 Shortly after receipt of the FOIA request, the FBI

issued, on March 11, 2022, a Glomar response refusing to confirm or deny the existence of

responsive records because no investigation into the mishandling of presidential records had

been officially acknowledged.

.2 Plaintiff timely instituted this action, after

1 Unless otherwise noted, the parties’ submitted facts are not disputed. 2 The phrase “Glomar” stems from a case in which a FOIA requester sought information concerning a ship named the “Hughes Glomar Explorer,” and the CIA refused to confirm or deny its relationship with the Glomar vessel because to do so would compromise the national security or divulge intelligence sources and methods. Phillippi v. CIA,

(D.C. Cir. 1981). The D.C. Circuit upheld that decision, see

, and now Glomar responses are proper “if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf v. CIA,

(D.C. Cir. 2007); see also Part.III.A.

2 administratively exhausting his claims, against the FBI and the United States Department of

Justice (“DOJ”) (collectively “defendants”) to challenge the FBI’s Glomar response. See

generally Compl., ECF No. 1.

Four months after the filing of this suit, the FBI, on November 22, 2022, reopened its

response to plaintiff’s FOIA request because the Attorney General of the United States officially

acknowledged an investigation into the possible mishandling of confidential documents. See

Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”) at 5-7, ECF No. 31-1; Pl.’s SUMF ¶ 15;

Defs.’ SUMF ¶ 6. Specifically, as to the first five categories of requested information, the FBI

lifted its Glomar response, searched for responsive records in its Centralized Records System

(“CRS”) and in email accounts, processed portions of the records that fell outside what the FBI

calls its “Mar-a-Lago investigative file,” see Defs.’ Mem., Decl. of Shannon R. Hammer, Asst.

Section Chief of the Record/Info. Dissemination Section, FBI (“Hammer Decl.”) ¶ 37, ECF No.

31-6, and released 499 pages of records in full and 120 pages in part to plaintiff, Hammer Decl. ¶

4, Defs.’ SUMF ¶¶ 6-7, 19-21. Relying on FOIA’s Exemption 7(A),

(b)(7)(A),

the FBI withheld categorically all records responsive to categories one through five that fell

within the Mar-a-Lago investigative file, Defs.’ SUMF ¶¶ 19-21, 46-47, and, in contrast to its

response to the first five categories of requested information, the FBI maintained the Glomar

response as to the sixth category of requested information and did not search for any responsive

records that may or may not exist, see Hammer Decl. ¶¶ 152-154, Defs.’ Mem. at 13.

The parties’ dispute, in the pending cross-motions for summary judgment, focuses on the

FBI’s categorical reliance on Exemption 7(A), to decline to release from the Mar-a-Lago

investigative file records responsive to the first five categories in the FOIA request, as well as the

propriety of offering a Glomar response to requested information in the sixth category together

3 with the refusal to conduct a search for records. See Defs.’ Mot. Summ. J. (“Defs.’ MSJ”) at 1,

ECF No. 31, Defs.’ Mem. at 1-3; Pl.’s Cross-Mot. Summ. J. (“Pl.’s XMSJ”) at 1, ECF No. 34;

Pl.’s Mem. Supp. XMSJ & Opp’n Defs.’ MSJ (“Pl.’s Opp’n”) at 1-3, ECF No. 34-1.3 Given the

current circumstances and legal landscape—including that President Trump now enjoys absolute

and presumptive immunity from criminal liability, the government has dismissed criminal

charges against President Trump and has dropped its challenge to the district court’s order

dismissing the criminal charges against his co-defendants for alleged mishandling of classified

presidential records, and no pending or even contemplated criminal enforcement action within

the applicable statute of limitations on the topics of responsive records is at all likely—the FBI’s

reliance on Exemption 7(A) and a Glomar response predicated on this exemption, is neither a

proper nor a sufficient response to the FOIA request at issue.

Consequently, for the reasons explained in more detail below, defendants’ motion for

summary judgment as to application of Exemption 7(A) to withhold responsive records

contained in the Mar-a-Lago investigative file and to rely on a Glomar response to the sixth

category of requested information, is denied, and plaintiff’s cross motion for summary judgment

on these two legal issues is granted.

I. BACKGROUND

The relevant factual background and procedural history is described below.

3 The memoranda filed in support of many of these motions are docketed twice and, to simplify citation, only one of the duplicate memoranda is cited. For example, the plaintiff’s memorandum in support of its cross-motion for summary judgment and opposition to defendant’s motion for summary judgment is docketed twice, at ECF Nos. 34 and 35; only the memorandum at ECF No. 34 is cited. Defendants’ memorandum in support of the motion for summary judgment and in opposition to plaintiff’s cross-motion are docketed at ECF Nos. 38 and 39, and only the memorandum at ECF No. 38 is cited.

4 A. Factual Background

On February 10, 2022, Axios, a news website, reported on a then-upcoming book written

by Maggie Haberman, a New York Times White House correspondent, which book contained a

claim that President Trump flushed presidential records down the toilet at the White House. Pl.’s

SUMF ¶ 1.4 Roughly a week later, on February 18, 2022, a letter from the Archivist of the

United States to Congress publicly described that President Trump had allegedly brought

presidential records, some of which were classified, to his personal residence at Mar-a-Lago after

he lost the 2020 presidential election and left the White House.

. The letter continued that

President Trump had eventually delivered some of those records to the National Archives but not

all of them, see

, resulting in the FBI searching Mar-a-Lago on August 8, 2022, pursuant to

a duly authorized search warrant, which was supported by a judicial finding that probable cause

existed that evidence of crimes would be found there. See Pl.’s SUMF ¶ 6; Notice of Filing

Redacted Documents at 3-4, In re Sealed Search Warrant, No. 22-mj-8832 (S.D. Fla. Aug. 11,

2022), United States’ Resp. Mot. Jud. Oversight & Add’l Relief (“U.S. Resp. Mot. Jud.

Oversight”) at 12, Trump v. United States, No. 22-cv-81294 (S.D. Fla. Aug. 30, 2022).5 Indeed,

during the execution of the search warrant, the FBI seized thirty-three boxes, containers, or items

of evidence, holding over a hundred classified records, including information classified at the

highest levels. U.S. Resp. Mot. Jud. Oversight at 12.

The Attorney General, on November 18, 2022, acknowledged the FBI’s investigation into

the alleged mishandling of classified documents and appointed Special Counsel Jack Smith

4 In August of 2022, Haberman released photos of notes at the bottom of two toilets, and, according to her sources, one photo was allegedly of a White House toilet while the other toilet was overseas. Pl.’s SUMF ¶ 2. 5 The parties cite to these court filings in separate proceedings and this Court “may take judicial notice of another court’s proceedings.” Jurdi v. United States,

, 89 n.2 (D.D.C. 2020) (quoting Donelson v. U.S. Bureau of Prisons,

(D.D.C. 2015)).

5 (“Special Counsel Smith”) to oversee the investigation. Defs.’ Mem. at 5 (citing Appointment of

a Special Counsel, U.S. DEP’T OF JUSTICE OFF. PUB. AFFS. (Nov. 18, 2022),

https://perma.cc/8CXM-HWQL); Pl.’s SUMF ¶ 7. That investigation resulted in a grand jury in

the Southern District of Florida returning an indictment charging President Trump with 37

federal felony charges and his personal aide Waltine Nauta (“Nauta”) with six federal felony

charges arising from the alleged mishandling of classified documents. Pl.’s SUMF ¶¶ 6-7;

Indictment, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023), ECF No. 3. A

grand jury in the same district subsequently returned, on July 27, 2023, a superseding indictment,

charging President Trump and Nauta with additional felony counts and adding a third defendant,

Carlos de Oliveira (“Oliveira”), who was the Mar-a-Lago property manager. Pl.’s SUMF ¶ 8;

Superseding Indictment, United States v. Trump, No. 23-cr-80101 (S.D. Fla. July 27, 2023), ECF

No. 85. One year later, on July 15, 2024, the Southern District of Florida judge presiding over

the criminal matter against President Trump and his co-defendants granted the defendants’

motion to dismiss the indictment, Pl.’s SUMF ¶ 9, United States v. Trump, No. 23-cr-80101,

, at *1 (S.D. Fla. July 15, 2024), and the Special Counsel noticed an appeal of

that decision to the United States Court of Appeals for the Eleventh Circuit, Pl.’s SUMF ¶ 9.

After briefing in this case ripened, however, all federal charges against President Trump

were dismissed. See Order of Dismissal, No. 24-12311 (11th Cir. Nov. 26, 2024), Doc. No. 81-

2. The government is also seeking dismissal with prejudice of the appeal of the district court’s

dismissal of the charges against President Trump’s co-defendants. See Unopposed Gov’t Mot. to

Dismiss, No. 24-12311 (11th Cir. Jan. 29, 2025), Doc. No. 111.6 Special Counsel Smith’s

6 The government’s unopposed motion to dismiss the appeal with prejudice as to Nauta and Oliveira is not yet resolved by the Eleventh Circuit, but nonetheless indicates a clear government intention to cease challenging the district court’s dismissal of the indictment against them. See Mapother v. Dep’t of Justice,

(D.C. Cir. 1991) (“[W]e have held that [Exemption 7(A)] is available where enforcement proceedings

6 investigation has now concluded. See Letter from Jack Smith, Special Couns., to Merrick B.

Garland, Att’y Gen. of the U.S. (“Special Counsel Smith’s Ltr.”) at 4 (Jan. 7, 2025),

https://perma.cc/URD5-GZFL (“With this Report, my service and the service of my staff is

complete.”).

B. Plaintiff’s FOIA Request and the Instant Litigation

After the February 2022 reporting of the alleged flushing of presidential records down the

toilet at the White House and the Archivist’s letter publicly describing President Trump’s alleged

mishandling of classified documents at Mar-a-Lago, plaintiff filed the FOIA request at issue

seeking:

1. All records, such as emails, memos, letters, text messages, reports, mentioning or referring to Presidential Records removed from the Trump White House that were stored at Mar-a-Lago. For this part of the request please search the offices of the Director, Deputy Director, National Security Branch, Intelligence Branch, Criminal, Cyber, Response, and Services Branch and Counterintelligence and Foreign Counterintelligence offices; 2. All records, such as emails, memos, text messages, letters, reports, personnel in the offices listed in part 1 exchanged with the National Archives, Department of Justice, CIA, Defense Intelligence Agency, NSA, DOD and the State Department mentioning or referring to boxes of Presidential Records removed from the Trump White House that were stored at Mar-a-Lago; classified information and boxes of Presidential Records from the Trump White House that were stored at Mar-a- Lago. Please search the same offices listed in part 1 for responsive records; 3. Any and all damage assessments, specifically reports documenting damage to national security or the potential damage to national security, that resulted from the removal of presidential records from the Trump White House and the storage of those Presidential Records at Mar-a-Lago; 4. All cross reference files from the CRS that mentions or refers to boxes of Presidential Records removed from the Trump White House that were stored at Mar-a-Lago; 5. All 302s, FD-204, FD-192, forms mentioning or referring to the National Archives and boxes of Presidential Records removed from the Trump White House that were stored at Mar-a-Lago and classified information;

are ‘pending or contemplated. The word ‘contemplated[]’. . . speaks to the enforcing agency’s intentions. For this, we have substituted ‘reasonably anticipated,’ a phrase that may be applied . . . to cases in which the agency has the initiative in bringing an enforcement action.” (emphasis added) (quoting Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980))). The government’s decision to move for dismissal of the appeal, and to do so with prejudice, confirms that the government has no “intentions” to pursue any “enforcement action” as to Nauta or Oliveira. See

7 6. All records, such as emails, letters, memos, text messages reports, mentioning or referring to Presidential Records from the Trump White House that were destroyed and Presidential Records from the Trump White House that were allegedly flushed down the toilet. Please search the same offices listed in part 1 for responsive records.

Defs.’ SUMF ¶ 1. At the time plaintiff filed his request, the government had not formally

acknowledged an investigation into President Trump, or anyone else, for mishandling of

classified documents. Id ¶ 2. As such, the FBI issued a Glomar response, citing Exemptions

7(A) and 7(E),

(b)(7)(A), 7(E), neither confirming nor denying the existence of

responsive records.

After that response and an administrative appeal affirming the response,

plaintiff filed the instant suit. See Compl.

The FBI, appropriately, modified its initial response to the FOIA request when the

Attorney General officially acknowledged the Mar-a-Lago search and appointed Special Counsel

Smith to oversee the investigation. Defs.’ SUMF ¶ 6. Following that official announcement, the

FBI reopened the FOIA request,

Joint Status Report at 1, ECF No. 14, and conducted a

search for records responsive to the first five categories of the FOIA request across the FBI’s

CRS, “an extensive system of records consisting of applicant, investigative, intelligence,

personnel, administrative, and general files compiled and maintained by the FBI,” Hammer Decl.

¶ 28, and email accounts of named custodians,

, which, together, “were reasonably

calculated to locate all records responsive to Plaintiff’s request,” id ¶ 47. The search identified

responsive documents within and outside the Mar-a-Lago investigative file.

.7 The

FBI processed only those responsive records that fell outside the Mar-a-Lago investigative file.

7 The CRS consists of “a numerical sequence of files, called FBI ‘classifications,’ which are organized according to designated subjects.” Hammer Decl. ¶ 31. “The broad array of CRS file classification categories include types of criminal conduct and investigations conducted by the FBI.”

“For identification and retrieval purposes . . . when a case file is opened, it is assigned a Universal Case File Number (UCFN) [and] [w]ithin each case file, pertinent documents of interest are ‘serialized,’ or assigned a number in the order which the document is added to the file, typically in chronological order.”

The Mar-a-Lago investigative file is such a case file.

.

8 Defs.’ SUMF ¶¶ 7-12, 20-21. The FBI then released 499 records in full, 120 in part, and

withheld 64 pages in full. Hammer Decl. ¶ 4. The FBI, however, maintained that any responsive

records in the Mar-a-Lago investigative file were appropriately withheld in their entirety,

pursuant to Exemption 7(A). Defs.’ SUMF ¶ 19. The FBI further asserted that a Glomar

response as to the sixth category of requested information remained appropriate because

“[a]lthough the existence of an FBI investigation about former President Trump’s handling of

classified records has been publicly acknowledged, the FBI has not disclosed or acknowledged

any aspect of the investigation pertaining to this particular matter.” Hammer Decl. ¶ 153.

On June 30, 2024, the defendants filed an unopposed motion to bifurcate review of the

documents as to which Exemption 7(A) would be asserted as the basis for withholding, allowing

the FBI to withhold those documents in full under that exemption and to reserve for later

consideration of any other exemptions that may apply. Defs.’ Mot. to Bifurcate at 1, ECF No.

22. The FBI noted in its motion that “[a]s for records within the investigative file”

“undertak[ing] a full, line-by-line review of documents withheld in full under Exemption 7(A)

and to assert other overlapping exemptions would substantially increase the processing time for

responsive records in this case.”

. The FBI anticipated that if the motion for bifurcation

were not granted, processing of the documents would take approximately seven months, but if

the motion were granted, the processing would take approximately two months.

. The

defendants’ unopposed bifurcation motion was granted. Min. Order (July 11, 2024). As already

noted, the FBI has now released records responsive to categories one through five in the FOIA

request, with some withholdings, in whole or in part. See Hammer Decl. ¶ 4.

Plaintiff raises no challenge to the search conducted to identify responsive records in

categories one through five, and exemptions applied to withhold, in whole or part, information in

9 those records processed by the FBI from outside the agency’s Mar-a-Lago investigative file.

Pl.’s Opp’n at 5 (“Leopold is not challenging the second set of documents” which “are . . .

responsive records outside the [Mar-a-Lago investigative] file”).8 Two disputes between the

parties remain: first, whether the FBI properly asserted a Glomar response as to the sixth

category of requested information and, second, whether the FBI properly invoked Exemption

7(A) categorically to withhold any responsive documents that fell within its Mar-a-Lago

investigative file. Pl.’s Opp’n at 1-2.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 entitles a party to “summary judgment only if there is

no genuine issue of material fact and judgment in the movant’s favor is proper as a matter of

law.” Soundboard Ass’n v. FTC,

(D.C. Cir. 2018) (citation omitted); see

also FED. R. CIV. P. 56(a). In the context of a FOIA dispute, “courts must grant summary

judgment for an agency if its affidavit: (1) describes the justifications for nondisclosure with

‘reasonably specific detail’; and (2) is not substantially called into question by contrary record

evidence or evidence of agency bad faith.” Schaerr v. U.S. Dep’t of Justice,

(D.C. Cir. 2023) (quoting Wolf v. CIA,

(D.C. Cir. 2007)); see also Aguiar v.

Drug Enf’t Admin.,

(D.C. Cir. 2017) (explaining that summary judgment

may be granted based on agency affidavits “if they contain reasonable specificity of detail rather

than merely conclusory statements, and if they are not called into question by contradictory

evidence in the record or by evidence of agency bad faith” (citation omitted)). Most FOIA cases

8 Although plaintiff originally challenged the adequacy of the FBI’s search, see Pl.’s Opp’n at 17- 18, in reply, this challenge was withdrawn, see Pl.’s Reply at 1.

10 “can be resolved on summary judgment.” Brayton v. Off. of the U.S. Trade Representative,

(D.C. Cir. 2011).

“Congress enacted [FOIA] ‘to pierce the veil of administrative secrecy and open agency

action to the light of public scrutiny[]’ . . . to ‘achieve greater transparency in support of open

government.’” Insider Inc. v. Gen. Servs. Admin.,

(D.C. Cir. 2024) (citation

omitted) (first quoting Nat’l Ass’n of Home Builders v. Norton,

(D.C. Cir.

2018); and then quoting Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2018)). To find the appropriate balance between the public’s interest in governmental

transparency and “legitimate governmental and private interests [that] could be harmed by

release of certain types of information,” Judicial Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2019) (quoting FBI v. Abramson,

(1982)), Congress

“provided that agencies may only withhold information that falls within one of the Act’s nine

enumerated exemptions from disclosure,” Reps. Comm. for Freedom of the Press v. FBI,

(D.C. Cir. 2021), set forth in

(b), which “are ‘explicitly made exclusive’

and must be ‘narrowly construed,’” Milner v. Dep’t of Navy,

, 565 (2011) (citation

omitted) (first quoting EPA v. Mink,

(1973); and then quoting Abramson,

).

FOIA’s enforcement mechanism authorizes federal courts to “enjoin the agency from

withholding agency records and to order the production of any agency records improperly

withheld from the complainant.”

(a)(4)(B). District courts must “determine de

novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland

Sec.,

(D.C. Cir. 2015). “FOIA places the burden ‘on the agency to sustain its

action,’ and the agency therefore bears the burden of proving that it has not ‘improperly’

11 withheld the requested records.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice,

(D.C. Cir. 2019) (citation omitted) (first quoting

(a)(4)(B); and

then quoting U.S. Dep’t of Justice v. Tax Analysts,

, 142 n.3 (1989)).

“‘An agency withholding responsive documents from a FOIA release bears the burden of

proving the applicability of claimed exemptions,’ typically through affidavit or declaration.”

DiBacco v. U.S. Dep’t of the Army,

(D.C. Cir. 2019) (quoting DiBacco v. U.S.

Army (“DiBacco I”),

(D.C. Cir. 2015)). “Summary judgment is warranted

based on the agency’s affidavit if it ‘describes the justifications for withholding the information

with specific detail, demonstrates that the information withheld logically falls within the claimed

exemption, and is not contradicted by contrary evidence in the record or by evidence of the

agency's bad faith.’”

(quoting DiBacco I,

). “Ultimately, an agency’s

justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

Judicial Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2013) (per curiam)

(quoting ACLU v. U.S. Dep’t of Def.,

(D.C. Cir. 2011)).

III. DISCUSSION

The FBI’s issuance of a Glomar response, and related decision not to search for

responsive records, as to the sixth category of requested information, and withholding of any

responsive documents in its Mar-a-Lago investigative file as to the first five categories of

requested information, is based solely on FOIA Exemption 7(A). Defs.’ Mem. at 1-3. This

exemption permits agencies to withhold documents otherwise responsive to a FOIA request if

the “records or information” were “compiled for law enforcement purposes” and “could

reasonably be expected to interfere with enforcement proceedings.”

(b)(7)(A).9

9 This exemption states, in relevant part: “(b)This section does not apply to matters that are—… (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law

12 Plaintiff argues that the FBI’s Glomar response is invalid because “the FBI has failed to account

for . . . President Trump’s possible immunity from prosecution for destroying presidential

records and flushing them down the toilet,” Pl.’s Opp’n at 7, “prevent[ing] any responsive

records from both satisfying the Exemption 7 threshold requirement that any records were

‘compiled for law enforcement purposes,’ and the separate requirement under Exemption 7(A)

that there be a ‘reasonably anticipated’ enforcement proceeding,’” Pl.’s Reply at 2.

Furthermore, plaintiff argues that the FBI’s claims of harm, if required to lift its Glomar

response, “are too speculative.” Pl.’s Opp’n at 12. With respect to the investigative file, plaintiff

posits that the FBI has failed to carry its burden in demonstrating how “disclosing any responsive

and segregable part of the file will harm the ongoing investigation or prosecution.”

.

As detailed below, the FBI’s Glomar response is improper and the categorical

withholding of the responsive records contained within the Mar-a-Lago investigative file is

insupportable where, as here, no pending law enforcement proceeding exists, or can be

reasonably anticipated, and the “Mar-a-Lago investigation,” Defs.’ Mem. at 11, has been iced,

obviating satisfaction of Exemption 7(A)’s requirement that the requested records “could

reasonably be expected to interfere with enforcement proceedings,”

(b)(7)(A).

Accord Leopold v. Dep’t of Justice,

(D.D.C. 2018) (“In adopting

[Exemption 7(A)], Congress recognized that ‘law enforcement agencies have legitimate needs to

keep certain records confidential, lest the agencies be hindered in their investigations or placed at

enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings . . .”

(b)(7)(A).

13 a disadvantage when it comes time to present their case.’” (emphasis added) (brackets omitted)

(quoting NLRB v. Robbins Tire & Rubber Co.,

(1978))).10

A. The FBI’s Glomar Response Is Improper Under Current Circumstances.

“In certain cases, merely acknowledging the existence of responsive records would itself

‘cause harm cognizable under a FOIA exception.’” PETA v. Nat’l Insts. of Health (“PETA”),

(D.C. Cir. 2014) (brackets omitted) (quoting Wolf,

). When

that situation arises, “an agency can issue a Glomar response, refusing to confirm or deny its

possession of responsive documents.”

If an agency asserts a Glomar response, it is relieved

of its obligation to search for responsive records. See Schaerr v. U.S. Dep’t of Justice,

(D.C. Cir. 2023) (“An agency need not search for records when simply recognizing the

existence or nonexistence of responsive records is protected by a FOIA exemption”). “A

Glomar response is valid ‘if the fact of the existence or nonexistence of agency records falls

within a FOIA exemption.’” PETA,

(quoting Wolf,

). “To

determine whether acknowledging the existence or non-existence of responsive records ‘fits a

FOIA exemption, courts apply the general exemption review standards established in non-

Glomar cases.’” Leopold,

(quoting Wolf,

).

10 Resolution of the pending cross motions for summary judgment on this ground of insufficient showing for application of Exemption 7(A) renders unnecessary further consideration of whether defendants made the appropriate foreseeable harm showing. Pl.’s Opp’n at 12-14, 16-17; Pl.’s Reply at 8-11; see generally Pl.’s Not. Supp. Auth. (“Pl.’s Not.”), ECF No. 41. At the same time, given defendants’ misguided position as to what is required under the FOIA Improvement Act, see Defs.’ Comb. Opp’n Pl.’s XMSJ & Reply Supp. Defs.’ MSJ (“Defs.’ Reply”) at 7-9, ECF No. 38; Defs.’ Reply Pl.’s Not, ECF No. 42, they would be well advised to follow the D.C. Circuit’s recent direction that “whether a record falls within an exemption and whether nondisclosure of that record is permissible under the Improvement Act’s foreseeable harm standard are ‘distinct, consecutive inquiries.’” Hum. Rts. Def. Ctr. v. U.S. Park Police, --F.4th--,

, at *4 (D.C. Cir. Jan. 24, 2025). As the D.C. Circuit opined, “[i]t should have been ‘apparent from the statutory text alone’ that the Improvement Act requires a ‘particularized inquiry into what sort of foreseeable harm would result from the material’s release.’”

(quoting Reps. Comm. for Freedom of the Press v. FBI,

, 369 n.2 (D.C. Cir. 2021)). The foreseeable harm requirement “is a countermeasure against excessive withholding” because “[i]t compels an agency to release requested materials unless it can ‘articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.’”

(quoting Reps. Comm.

).

14 Here, the FBI relies for its Glomar response to the sixth category of requested

information on Exemption 7(A), which requires an agency to demonstrate that “the requested

records were compiled for law enforcement purposes” and that “disclosure [of the records] (1)

could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending

or reasonably anticipated.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice

(“CREW”),

(D.C. Cir. 2014) (quoting Mapother v. Dep’t of Justice,

(D.C. Cir. 1993)). Assuming arguendo that any records responsive to the sixth

category of requested information were compiled for law enforcement purposes, the FBI has

failed to support its Glomar response because no pending or reasonably anticipated

“investigation [that] continues to gather evidence for a possible future criminal case,” CREW,

(quoting Juarez v. Dep’t of Justice,

(D.C. Cir. 2008)), has been

identified as existing and no enforcement proceeding remains “pending or contemplated,” id. at

1097. Absent any enforcement proceedings “with which disclosure may interfere,” id.,

Exemption 7(A) does not apply.

Defendants defend invocation of Exemption 7(A) by arguing that a Glomar response is

required to prevent interference into pending criminal cases arising from execution of the search

warrant on Mar-a-Lago and the ensuing investigation. See Defs.’ Mem. at 3-6, 13-15; Hammer

Decl. ¶¶ 154, 161. “Exemption 7(A),” however, “is temporal in nature,” and “[t]he proceeding

must remain pending at the time of [the court’s] decision, not at the time of the initial FOIA

request.” CREW,

; see also North v. Walsh,

(D.C. Cir.

1989) (“Disclosure of the information [the requester] seeks cannot interfere with parts of the

enforcement proceeding already concluded.”). As outlined above, supra Part I.B., during the

pendency of this case, the DOJ dismissed all federal charges against President Trump and has

15 moved to dismiss the appeal, with prejudice, challenging the district court’s dismissal of the

indictment as to his co-defendants. As such, the DOJ’s intervening actions have mooted the only

pending or contemplated enforcement proceedings the FBI has identified, Defs.’ Mem. at 6, that

could potentially be harmed by confirming or denying the existence of records described in

category six. Contrary to the FBI’s fear that acknowledging the existence, or lack thereof, of

records responsive to category six would “reasonably be expected to hamper prosecutorial efforts

by exposing potential witness or sources to harassment, intimidation, coercion, physical threats

or actual harm,” Hammer Decl. ¶ 154, no “prosecutorial efforts” that may be “hamper[ed]” by

lifting the Glomar response remain pending or contemplated.

Moreover, defendants fail to demonstrate that future enforcement proceedings are

“reasonably anticipated.” Mapother,

(emphasis in original). As plaintiff

pointedly highlights, as to President Trump, “there is a reasonable argument that [he] is immune

from prosecution for flushing his own records down the toilet while in office.” Pl.’s Reply at 2;

see Pl.’s Opp’n at 7 (citing Trump v. United States,

(2024)). Defendants try to

duck consideration of the repercussions of this radical shift in the legal landscape made by the

Supreme Court’s grant to the president of absolute and presumptive immunity from criminal

liability for conduct while in office, saying that President Trump’s potential immunity from

prosecution need not be considered due to the “heavy burden on agencies” to “consider the

merits of various defenses, like immunity, that the target of an investigation might assert in an

eventual criminal trial.” Defs.’ Reply at 5. Defendants lament that a burden to evaluate

President Trump’s immunity defense “is not justified by existing authority,” id. at 5, but without

citing to any “existing authority.” Plaintiff counters that defendants “bear[] the burden to show a

reasonably anticipated enforcement proceeding,” Pl.’s Reply at 4, and that defendants “cite[] no

16 case that an agency need not meet its ordinary burden because it would take some effort,” id. at

3.

Both parties acknowledge, see Defs.’ Mem. at 8-9, Pl.’s Opp’n at 5, that defendants

“bear[] the burden of justifying any withholding,” Citizens for Resp. & Ethics in Wash. v. U.S

Dep’t of Justice, No. 20-cv-0212 (EGJ),

, at *3 (D.D.C. Sept. 30, 2022).

Neither party, however, cites any precedent for their respective positions regarding the extent to

which the burden on the agency invoking Exemption 7(A) encompasses the evaluation of

potential immunity defenses, see Defs.’ Reply at 5, Pl.’s Reply at 3-5, presumably because of the

novelty of this issue in the wake of the Supreme Court’s new grant of immunity to the President.

To be sure, other FOIA exemptions, like Exemption 5,

(b)(5), may relieve federal

agencies of any obligation to weigh the merits of “case-specific exceptions,” Stonehill v. IRS,

(D.C. Cir. 2009), regarding the legal or factual underpinnings giving rise to

the agency’s invocation of the exemption. See, e.g., Wright v. Admin. for Children & Families,

No. 15-cv-218 (BAH),

, at *11 (D.D.C. Oct. 11, 2016) (“Exemption 5’s

protection of privileged materials is not subject to the same exceptions to which the common law

privilege is susceptible.”); Williams & Connolly v. SEC,

(D.C. Cir. 2011)

(noting that under FOIA, a party’s “notes not turned over in [a] criminal trial still remain . . .

work product material not ordinarily discoverable in civil proceedings” and FOIA, thus,

protected documents, even though “[i]n criminal trials, evidentiary privileges may give way for

any number of reasons”). In contrast to the litigation privileges, which operate to restrict the use

of certain evidence in legal proceedings and may be invoked by federal agencies for withholding

from disclosure under Exemption 5, absolute or qualified immunity is an entitlement to

“immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth,

,

17 526 (1985) (emphasis in original). Put another way, the grant of immunity operates to bar the

possibility of a legal proceeding and, concomitantly, eliminates the possibility of satisfying the

requirements for invocation of Exemption 7(A).

Exemption 7(A) is forward looking and explicitly requires an agency to consider

whether records compiled for law enforcement purposes “could reasonably be expected to

interfere with enforcement proceedings,”

(b)(7)(A), because such proceedings, if

not pending, are “reasonably anticipated.” Mapother,

(emphasis omitted). Here,

whether a law enforcement action against President Trump may be reasonably anticipated is a

necessary showing for defendants to invoke Exemption 7(A), see id.11 As such, defendants have

not shouldered their burden by submitting supporting declarations that ignore whether reviving a

criminal enforcement proceeding against President Trump is even possible.

The possibility of any federal law enforcement proceeding against President Trump

measurably shrank even before briefing in this case began, when the Supreme Court, in Trump v.

United States,

(2024), held that a president is “at least presumptive[ly] immune[]

from criminal prosecution for . . . acts within the outer perimeter of his official responsibility,”

(emphasis omitted), “without regard to motive or intent, . . . and [is] quite possibly

‘absolute[ly]’” immune,

(Sotomayor, J., dissenting). As such, “Presidents therefore

11 Defendants seemingly argue that Exemption 7(A) extends to criminal investigations independent of whether they are tied to enforcement proceedings that are reasonably anticipated. Defs.’ Reply at 3 n.1 (“[T]he universe of ‘enforcement proceedings’ that Exemption 7(A) protects includes not only prosecutions, but criminal investigations in advance of those prosecutions.”). To the extent that defendants argue that, standing alone, “[a] pending criminal investigation constitutes an ‘enforcement proceeding,’”

(quoting Barrett v. U.S. Dep’t of Justice, No. 09-2959,

, at *3 (E.D. Cal. Oct. 21, 2010)), that is an incorrect statement of law. The D.C. Circuit has made clear that Exemption 7(A) may cloak investigative files, but only those that are prepared during an investigation that “is likely to lead to” an “enforcement proceeding.” Ctr. for Nat. Sec. Studs. v. U.S. Dep’t of Justice,

(D.C. Cir. 2003). As such, Exemption 7(A) does not extend to an investigation that will not result in a reasonably anticipated enforcement proceeding. See CREW,

(“To be sure, an ongoing criminal investigation typically triggers Exemption 7(A): ‘[S]o long as the investigation continues to gather evidence for a possible future criminal case, and that case would be jeopardized by the premature release of that evidence, Exemption 7(A) applies.’” (emphasis added) (quoting Juarez v. Dep’t of Justice,

(D.C. Cir. 2008))).

18 cannot be indicted based on conduct for which they are immune from prosecution.” Id. at 630

(majority opinion). In coming to this conclusion, which three dissenting Justices described as

“mak[ing] a mockery of the principle, foundational to our Constitution and system of

Government, that no man is above the law,” id. at 657 (Sotomayor, J., dissenting), the Court also

created an evidentiary privilege, requiring that “acts for which the President is immune must be

redacted from the narrative of even wholly private crimes committed while in office,” id. at 681.

See also id. at 655 (Barrett, J., concurring in part and dissenting in part) (dissenting from the

majority’s finding of an evidentiary privilege because “[t]he Constitution does not require

blinding juries to the circumstances surrounding conduct for which Presidents can be held

liable”). Regardless of the soundness of the majority’s decision, see id. at 683 (Sotomayor, J.,

dissenting) (“Today’s decision to grant former Presidents immunity for their official acts is

deeply wrong.”), plaintiff has offered a variety of reasons why President Trump is presumptively

or absolutely immune from criminal prosecution for actions he took related to the alleged

mishandling of classified documents while he was President, see Pl.’s Opp’n at 7-9, Pl.’s Reply

at 1-5. Defendants, though, have failed to address how President Trump’s presumptive

immunity from criminal prosecution and likely immunity from suit can be squared with

Exemption 7(A)’s requirement that “an agency [can] withhold law enforcement records and

information only if the release of such information ‘relates to a concrete prospective law

enforcement proceeding,” Leopold v. U.S. Dep’t of Justice, No. 17-cv-2819 (APM),

, at *9 (D.D.C. Sept. 30, 2022) (emphasis omitted) (quoting Carson v. U.S. Dep’t of

Justice,

(D.C. Cir. 1980)). With the far dampened possibility of any

criminal investigation to gather evidence about a president’s conduct and of any public

enforcement proceeding against a president, the majority’s decision in Trump,

, has

19 left a FOIA request as a critical tool for the American public to keep apprised of a president’s

conduct, accomplishing FOIA’s goal to allow the citizenry to “know what its government is up

to,” Hum. Rts. Def. Ctr. v. U.S. Park Police, --F.4th--,

, at *1 (D.C. Cir. Jan. 24,

2025) (quoting Nat’l Archives & Recs. Admin. v. Favish,

(2004)). Somewhat

ironically, the constitutional and procedural safeguards attached to the criminal process include

significant confidentiality mechanisms, see, e.g. FED. R. CRIM. P. 6(e) (regarding grand jury

secrecy), with a parallel safeguard in Exemption 7(A) to help preserve the necessary

confidentiality of ongoing criminal investigations leading to anticipated enforcement actions, but

for an immune president, Exemption 7(A) may simply be unavailable, as it is here.

To take an example used in both the D.C. Circuit and the Supreme Court, if the president

“[o]rders the Navy’s Seal Team 6 to assassinate a political rival,” the president may now be

“immune” from criminal prosecution for ordering the hit. Trump v. United States,

(Sotomayor, J., dissenting); see also Oral Argument at 8:21, Trump v. United States,

(2024) (No. 23-3228), https://media.cadc.uscourts.gov/recordings/docs/2024/01/23-

3228.mp3. While this conclusion may permit “an energetic . . . Executive,”

(majority

opinion), “from answering for criminal and treasonous acts,”

(Sotomayor, J.,

dissenting), a FOIA request may “pierce the veil of administrative secrecy,” U.S. Dep’t of State

v. Ray,

(1991), to give the American people access to facts reflected in

disclosed records regarding the president’s conduct, even if the president may now be legally

immune from criminal prosecution. See Robbins Tire,

(“The basic purpose of

FOIA is 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.”).12

12 Of course, while the Supreme Court has provided a protective and presumptive immunity cloak for a president’s conduct, that cloak is not so large to extend to those who aid, abet and execute criminal acts on

20 Additionally, the FBI has failed to support its Glomar response with respect to any

alleged criminal conduct that occurred after President Trump lost the 2020 presidential election.

The FOIA request seeks “Presidential Records from the Trump White House that were destroyed

and Presidential Records from the Trump White House that were allegedly flushed down the

toilet,” Hammer Decl. ¶ 6, without limitation with respect to when such conduct occurred, i.e.,

whether President Trump or anyone else allegedly flushed presidential records down the toilet or

otherwise destroyed presidential records while President Trump was in office during his first

term or after he lost the 2020 presidential election. While the FBI’s proffered reasons for its

Glomar response for any alleged criminal conduct that occurred during President Trump’s first

term are unpersuasive given the agency’s failure to consider whether or not such a law

enforcement proceeding is reasonably anticipated, or even possible, due to presidential criminal

liability immunity, as discussed above, the agency also cannot point to a reasonably anticipated

enforcement proceeding for any conduct that occurred after President Trump lost the 2020

presidential election and left the White House. As a result of the election held on November 5,

2024, President Trump was inaugurated as President of the United States on January 20, 2025,

see Gov’t’s Mot. to Dismiss (“Gov’t’s MTD”), United States v. Trump, No. 23-cr-257 (D.D.C.

behalf of a criminally immune president. The excuse offered after World War II by enablers of the fascist Nazi regime of “just following orders” has long been rejected in this country’s jurisprudence. See, e.g., United States v. North,

(D.C. Cir. 1990) (rejecting suggested instruction in criminal case that “goes so far as to conjure up the notion of a ‘Nuremberg’ defense, a notion from which our criminal justice system, one based on individual accountability and responsibility, has historically recoiled. …[W]e refuse to hold that following orders, without more, can transform an illegal act into a legal one.”), withdrawn and superseded in part on other grounds by United States v. North,

(D.C. Cir. 1990); North,

(Wald, C.J., concurring in part and dissenting in part) (“[O]ur criminal law does not recognize a ‘following orders’ or ‘Nuremberg’ defense.”); see also O’Rourke v. Hayes,

, 1210 n.5 (11th Cir. 2004) (“[S]ince World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of that order.’” (quoting Brent v. Ashley,

, 1306 (11th Cir. 2001))); United States v. Funmaker,

(7th Cir. 1993) (“It must be clear that defendants cannot circumvent federal prosecution by claiming that they were merely following orders . . . . [T]he government is entitled to prosecute individuals who follow orders to violate federal law, [and] the fact that [defendant] was following the orders of tribal authorities does not immunize him from federal prosecution.”).

21 Nov. 25, 2024), ECF No. 281, and “[i]t has long been the position of the Department of Justice

that the United States Constitution forbids the federal indictment and subsequent criminal

prosecution of a sitting President,” id. at 1. See generally Memo. from Randolph D. Moss, Asst.

Att’y Gen., Off. of Legal Counsel, A sitting President’s Amenability to Indictment and Criminal

Prosecution,

(Oct. 16, 2000) (“2000 OLC Op.”). Consequently, President

Trump enjoys “temporary” immunity from criminal prosecution until the end of his presidential

term in January of 2029, see Gov’t’s MTD at 5, 6, 2000 OLC Op. at 257, and the statute of

limitations of the charges against him or those plausibly applicable to his alleged conduct that

were the subject of Special Counsel Smith’s investigation will have expired, see Pl.’s Opp’n at

12 (citing

which provides for a five-year limitations period for non-capital

offenses). See, e.g., Leopold v. U.S. Dep’t of Justice, No. 17-cv-2819 (APM),

, at *9 (D.D.C. Sept. 30, 2022) (holding that “there can be no ‘prospective’ law

enforcement proceeding” for purposes of Exemption 7(A) if “any prosecution . . . would be time

barred”). Like its failure to grapple with whether President Trump’s absolute or presumed

immunity from criminal liability forecloses a reasonably anticipated enforcement proceeding, the

FBI has similarly neglected weighing the extent to which President Trump’s current role

precludes a reasonably anticipated enforcement proceeding. As such, the FBI’s Glomar response

fails regardless of whether the alleged conduct at issue occurred during or in the months after

President Trump’s first term.

Finally, recent events have thoroughly removed any residual basis for the argument that

confirming or denying the existence of records responsive to category six could interfere with

law enforcement proceedings against persons other than the president or in an ongoing

investigation. As already noted, the government has dismissed all federal felony charges against

22 President Trump and has moved to dismiss the appeal, with prejudice, challenging the district

court’s dismissal of the indictment as to his co-defendants that stemmed from the investigation at

Mar-a-Lago. Special Counsel Smith’s investigation, the only investigation relied upon in

defendants’ affidavits, see Hammer Decl. ¶¶ 27, 37, 83-85, 89, 98-100, 104, 107, 130-131, 135,

137, 153-154, 160, has concluded, see Special Counsel Smith’s Ltr. at 4. The federal

prosecutors assisting Special Counsel Smith in his investigation and in bringing the now-

dismissed criminal actions have been fired. See Bruce Green & Rebecca Roiphe, Firing of Jack

Smith’s Team is a Threat to Rule of Law, LAW360 (Jan. 31, 2025, 2:38 PM),

https://perma.cc/KC84-SUKB (reporting on the firing and quoting from the emailed memo that

was sent to those who had been fired).13 Thus, defendants’ averments for invoking Exemption

7(A) that law enforcement proceedings are pending or reasonably likely, Hammer Decl. ¶ 154,

Defs.’ Reply at 3, are no longer “logical or plausible.” Judicial Watch,

(citation

and internal quotation marks omitted). See also Mapother,

(“[Exemption 7(A)] is

available where enforcement proceedings are ‘pending or contemplated. The word

‘contemplated[]’. . . speaks to the enforcing agency’s intentions.” (emphasis added)).

The same is true regarding defendants’ argument that “[i]f the FBI disclosed the

existence or nonexistence of records responsive to Item No. 6 of Plaintiff’s request at this stage

of the FBI’s investigation, such a disclosure could reasonably be expected to hamper and

interfere with the pending investigation.” Hammer Decl. ¶ 161. This is not a situation where the

13 Judicial notice may be taken of “fact[s] in the absence of formal proof,” see Weinstein v. Republic of Iran,

(D.D.C. 2001) (quoting United States v. Neill,

(D.D.C. 1997)). To do so, the facts need only be “outside the area of reasonable controversy.” FED. R. EVID. 201, advisory comm. note. The widely reported firings of Special Counsel Smith’s prosecution team by acting Attorney General James McHenry are such facts. See, e.g., ACLU v. CIA,

(D.C. Cir. 2013) (taking judicial notice of statements made by the president and government officials that occurred after the district court issued its opinion but prior disposition of the case on appeal); Gosen v. U.S. Citizenship & Immig. Servs.,

(D.D.C. 2014) (taking judicial notice of facts in disposing of motions for summary judgment in a FOIA case).

23 FBI has refused to confirm or deny whether an investigation exists at all. See Leopold v. Dep’t

of Justice,

(D.D.C. 2018) (upholding Glomar response regarding a

FOIA request for records of an investigation, the existence of which was neither confirmed nor

denied). Instead, the FBI has confirmed the existence of an investigation but refuses to confirm

or deny a “facet of the investigation,” Defs.’ Mem. at 1, because “in consultation with Special

Counsel’s Smith’s office, [the FBI] determined that merely acknowledging the existence or non-

existence of records responsive to Item No. 6 of plaintiff’s request reasonably could be expected

to interfere with [the Special Counsel’s] ongoing investigation.” Hammer Decl. ¶ 154. Simply

put, that investigation, which is the sole investigation defendants rely on to support their use of a

Glomar response, is no longer pending but in fact closed and the investigating officials fired

under the new Trump Administration. In these circumstances, defendants’ Glomar arguments

crumble with no more weight than dust and just as little persuasiveness.

***

“The Glomar doctrine is in large measure a judicial construct, an interpretation of FOIA

exemptions that flows from their purpose rather than their express language.” ACLU v. CIA,

(D.C. Cir. 2013). “In this case, [defendants] asked the court to stretch that

doctrine too far—to give [the court’s] imprimatur to a fiction of deniability that no reasonable

person would regard as plausible.”

“‘There comes a point where . . . Court[s] should not be

ignorant as judges of what [they] know as men’ and women.”

(quoting Watts v. Indiana,

(1949)). Given recent events, this point has been reached as to whether the FBI

needs to confirm or deny whether or not documents exist that “mention[] or refer[] to

Presidential Records from the Trump White House that were destroyed and Presidential Records

from the Trump White House that were allegedly flushed down the toilet.” Defs.’ SUMF ¶ 1.

24 No law enforcement investigation is pending nor is any such criminal enforcement proceeding

reasonably likely anymore. Therefore, plaintiff’s cross-motion for summary judgment

demanding that the FBI lift its Glomar response to the sixth category of records requested in the

FOIA request and search for responsive records to the extent they exist is granted, and

defendants’ motion for summary judgment on this legal issue is denied.

B. FBI’s Categorical Withholding of Responsive Records in the Mar-a-Lago Investigative File Under Exemption 7(A) Fails.

The FBI has invoked Exemption 7(A) to withhold in toto documents that are contained

within the agency’s Mar-a-Lago investigative file. Defs.’ Mem. at 1-2; Hammer Decl. ¶ 164.

Defendants’ arguments in support of putting this investigative file off-limits from the FOIA

request largely mirror those that asserted to maintain the FBI’s Glomar response. See Defs.’

Mem. at 15-21. For example, defendants argue that, although the investigation has been

acknowledged, this fact does “not undermine the extremely sensitive nature of the ongoing Mar-

a-Lago investigation, and the critical need to protect any further details regarding its targets, its

scope, the work that has been done to date, and the work that remains to be done.” Defs.’ Mem.

at 15. Yet, as noted, that investigation is no longer active nor even pending since the

investigation is closed—critical circumstances substantially undermining reliance on Exemption

7(A). See Special Counsel Smith’s Ltr. at 4. Indeed, the dedicated public servants who worked

on and have the deepest knowledge of the facts underlying this investigation, including career

federal prosecutors in Special Counsel Smith’s Office, have been summarily fired by the new

Trump Administration.

“[R]eliance on Exemption 7(A) may become outdated when the proceeding at issue

comes to a close.” CREW,

. This has happened here. The same intervening

events that make obsolete the FBI’s Glomar response, see supra Part III.A., also prevent the FBI

25 from categorically withholding, under Exemption 7(A), responsive documents contained within

an investigative file.

Defendants’ motion for summary judgment seeking judgment in their favor as to the

legality of relying on Exemption 7(A) to withhold entirely the FBI’s investigative files from the

processing of the FOIA request at issue and to assert a Glomar response to the sixth category of

requested information, must be denied, and plaintiff’s cross motion for summary judgment as to

these legal issues is granted. The parties are directed to submit jointly, by February 20, 2025, a

status report proposing a schedule to govern future proceedings to conclude this case

expeditiously.14

IV. CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment is denied, and

plaintiff’s cross-motion for summary judgment is granted.

An order consistent with the holdings in this Memorandum Opinion will be entered

contemporaneously.

Date: February 10, 2025

__________________________ BERYL A. HOWELL United States District Judge

14 After the Supreme Court decided Trump v. United States,

(2024), plaintiff offered to narrow his request to seek documents only as to President Trump, Pl.’s Opp’n, Leopold Decl. (“Leopold Decl.”) ¶ 9, ECF No. 34-4, but, without any noted reasons in the record, the FBI refused this offer, see Defs.’ Mem., Defs.’ Reply; Leopold Decl. ¶ 10. Given the “over 1.28 million pages of unclassified discovery and all of the CCTV footage obtained” in the Special Counsel’s investigation, Pl.’s Opp’n at 16 (quoting Gov’t’s Response Opp’n Defs.’ Mot. Compel Discovery at 1, United States v. Trump, No. 23-cr-80101 (S.D. Fla. Apr. 22, 2024), ECF No. 470), defendants would be well advised to confer with plaintiff to narrow his request moving forward.

26