James Madison Project v. Dep't of Justice
James Madison Project v. Dep't of Justice
Opinion of the Court
Once more, this court is called upon to opine on the legal consequences of President Donald J. Trump's declassification of information concerning the "Dossier"-the 35-page compilation of memoranda prepared by former British intelligence officer Christopher Steele concerning Russian efforts to influence the 2016 presidential election and alleged ties between Russia and then candidate Trump. Cf. BuzzFeed, Inc. v. U.S. Dep't of Justice , Case No. 17-mc-02429-APM,
The court initially granted summary judgment in favor of Defendants. See generally James Madison Project v. Dep't of Justice ("James Madison I") ,
For the reasons that follow, the court finds that the disclosures contained in the Nunes and Schiff Memos do constitute a public acknowledgement of the existence of the records sought by Plaintiffs from Defendant Federal Bureau of Investigation ("FBI") and that the FBI therefore may no longer maintain its Glomar responses. Accordingly, the court indicates that, upon remand, the court would grant Plaintiffs' pending Motion for Reconsideration as to the FBI. Plaintiffs' Motion as to the remaining agency Defendants, however, is denied.
I.
The court already has written extensively about this matter, and so only will summarize the relevant facts and procedural history here.
A.
In January 2017, Plaintiffs submitted a Freedom of Information Act ("FOIA") request to four federal agencies-the Office of the Director of National Intelligence, the Central Intelligence Agency, the National Security Agency (collectively, "Intelligence Community Defendants"), and the FBI-for the following information:
(1) The two-page "synopsis" provided by the U.S. Government to President-Elect Trump with respect to allegations that Russian Government operatives had compromising personal and financial information about President-Elect Trump ("Item One");
(2) Final determinations regarding the accuracy (or lack thereof) of any of the individual factual claims listed in the two page synopsis ("Item Two"); and
(3) Investigative files relied upon in reaching the final determinations referenced in [Item Two] ("Item Three").
James Madison I ,
Thereafter, within the context of this litigation, Defendants responded to Plaintiffs' FOIA demands. All Defendants asserted Glomar responses as to Items Two and Three-that is, they refused to admit or deny whether any responsive records even exist. See
B.
But then the ground shifted. On February 2, 2018, President Trump authorized release of a memorandum prepared by the majority staff of the House Permanent Select Committee on Intelligence, commonly referred to as the Nunes Memo. See *147Pls.' Mot. for Recons., ECF No. 40 [hereinafter Pls.' Mot.], Ex. 1, ECF No. 40-1 [hereinafter Nunes Memo]. Among other things, the Nunes Memo revealed that former British intelligence operative Christopher Steele drafted the Dossier; that, in October 2016, the FBI relied in part on portions of the Dossier's contents to secure a Foreign Intelligence Surveillance Act ("FISA") warrant as to Carter Page, a former campaign advisor to then-candidate Trump; that, in parallel with pursuing the Page FISA warrant, the FBI was undertaking efforts to corroborate the allegations contained within the Dossier; and, critically for this case, that "in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier." See id. at 4-6.
A few weeks later, the President authorized the declassification and release of even more information about the Dossier's origin and use. On February 24, 2018, a rebuttal to the Nunes Memo, written by the minority staff of the House Permanent Select Committee on Intelligence, became public. See Pls.' Notice of Suppl. Info., ECF No. 41, Ex. 1, ECF No. 41-1 [hereinafter Schiff Memo]. The rebuttal, better known as the "Schiff Memo," revealed, among other things, that Steele shared his "reporting ... with an FBI agent ... through the end of October 2016"; and, importantly for this case, that "[t]he FBI has undertaken a rigorous process to vet allegations from Steele's reporting." Id. at 5, 8. As a result of the release of the Nunes and Schiff Memos, there is now in the public domain meaningful information about how the FBI acquired the Dossier and how the agency used it to investigate Russian meddling in the 2016 presidential election.
Not surprisingly, after the release of the Nunes Memo, Plaintiffs asked this court to reconsider the validity of Defendants' Glomar responses. See generally Pls.' Mot. Moving under Rule 60(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs argued that the information contained in the Memos "undoubtedly would have conclusively and substantively changed the outcome of the present case if it had been available prior to this Court's" summary judgment ruling. Id. at 6. Defendants opposed Plaintiffs' motion, arguing that "nothing to which [Plaintiffs] refer in the Nunes Memo or in the Schiff Memo addresses the two-page synopsis that is the subject of plaintiffs' request." Defs.' Opp'n to Pls.' Mot., ECF No. 43 [hereinafter Defs.' Opp'n], at 2. As Defendants put it: "The Schiff Memo, like the Nunes Memo, is devoid, in fact, of any reference to the two-page synopsis" and thus "[n]o waiver of the Glomar responses ... results[.]" Id. at 3.
In view of the parties' positions, the issue before the court is: Does the President's approved release of the information contained in the Nunes and Schiff Memos constitute an official acknowledgement of the existence of records requested by Plaintiffs, such that Defendants' Glomar responses are now invalid? The court turns now to answer that question.
II.
A.
Rule 60(b)(2) allows for relief from a final judgment, order, or proceeding based on "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial." Fed. R. Civ. P. 60(b)(2). In order for *148evidence to meet the requirements of Rule 60(b)(2), the following criteria must be met:
(1) the newly discovered evidence is of facts that existed at the time of trial or other dispositive proceeding; (2) the party seeking relief was justifiably ignorant of the evidence despite due diligence; (3) the evidence is admissible and is of such importance that it probably would have changed the outcome; and (4) the evidence is not merely cumulative or impeaching.
West v. Holder ,
There is no dispute here that both the Nunes and Schiff Memos satisfy the first, second, and fourth prongs for purposes of Rule 60(b)(2). See Bain v. MJJ Prods., Inc. ,
B.
It is helpful to start with a recap of the principles that govern how to evaluate a Glomar response. To overcome a Glomar response, the plaintiff can either challenge the agency's position that disclosing the existence of a record will cause harm under the FOIA exemption asserted by the agency, or the plaintiff can show that the agency has "officially acknowledged" the existence of records that are the subject of the request. See James Madison I ,
Generally speaking, there are two ways in which a plaintiff can establish that a public statement officially acknowledges the existence of a document. The plaintiff can either (1) identify a statement that "on [its] face" constitutes an official acknowledgement of a document's existence, or (2) point to a statement that, when combined with the "context in which it is made," leads to an "inescapable inference that the requested record[ ] in fact exist[s]." See James Madison I ,
III.
Plaintiffs argue that the Nunes and Schiff Memos, both directly and by way of inference, "pinpoint" the existence of agency records that "match" their FOIA requests. They contend that both Memos disclose the FBI's efforts to verify or refute the accuracy of the Dossier's allegations, and note that the Nunes Memo expressly mentions "a source validation report conducted by an independent unit within [the] FBI [that] assessed Steele's reporting as only minimally corroborated." Nunes Memo at 6 (emphasis added); see Pls.' Mot. at 2-3. The referenced "source validation report," they assert, "matches" their requests for "final determinations regarding the accuracy (or lack thereof) of the allegations summarized in the two-page synopsis, as well as investigative files (if any) relied upon in rendering those final determinations." Pls.' Mot. at 2-3 (internal quotation marks omitted); see also James Madison I ,
Defendants' response is straightforward. Distinguishing the Dossier from the two-page synopsis, they concede that both Memos disclose the FBI's efforts to corroborate the Dossier's allegations, but assert that nothing in the Memos "addresses the two-page synopsis that is the subject of plaintiffs' requests." Defs.' Opp'n at 2. In other words, they argue, neither the Nunes Memo nor the Schiff Memo contains reference to any document that matches the "final determinations" or "investigative files" about the synopsis that Plaintiffs seek, so their Glomar responses remain on firm ground.
Plaintiffs have the better of the argument.
A.
Item One: The Two-Page Synopsis . Recall, only the FBI asserted a Glomar response to Plaintiffs' demand for a copy of the two-page synopsis presented to President-elect Trump. James Madison I ,
To begin with, the phrase "a summary of the Steele dossier" clearly refers to a written summary. Interpreting that phrase to refer to an oral summary would be grammatically unnatural. The Nunes Memo uses the past tense of the verb "brief," the preposition "on," and the article "a" before "summary" to describe what Director Comey did with respect to "a summary of the Steele Dossier." Reading those terms together conveys that Director Comey dispensed information as to *150some tangible object-a briefing "on" "a summary." To say that the Director "briefed" the President-elect "on" "an" oral summary would make little sense. If the briefing concerned only an oral summation, then the phrase "a summary of" to modify "the Steele Dossier" would be entirely unnecessary ("Director Comey briefed President Trump on ... the Steele Dossier"). Thus, understanding "summary" to refer to a "written summary" is the natural reading.
Context supplies other evidence of a match between Plaintiffs' Item One request and the Nunes Memo's reference to "a summary of the Dossier." The terms "synopsis"-used by Plaintiffs-and "summary"-used by the Nunes Memo-are, of course, synonyms. The interchangeability of those words points to the same document. Additionally, Plaintiffs' demand for a document pertaining to "allegations that Russian Government operatives had compromising and personal financial information about President-Elect Trump" is an unmistakable reference to what the Nunes and Schiff Memos identify as the Dossier. See Nunes Memo at 5 (stating that the " 'dossier' [was] compiled by Christopher Steele" who was tasked with "obtain[ing] derogatory information on Donald Trump's ties to Russia"); cf . Schiff Memo at 3-4 ("DOJ's applications did not otherwise rely on Steele's reporting, including any 'salacious' allegations about Trump, and the FBI never paid Steele for this reporting."). And the Nunes Memo's description of what Director Comey did with the "summary" is consistent with a January 10, 2017, CNN article that Plaintiffs incorporated in their FOIA request to the agencies "for context." See Answer, ECF No. 8, Ex. A, ECF No. 8-1 [hereinafter FOIA Request], at 2; Defs.' Mot. for Summ. J., ECF No. 14, Ex. G, ECF No. 14-14 [hereinafter CNN Article]. The CNN article reported that allegations regarding Russian possession of "compromising personal and financial information" about the President-elect were "presented" in a two-page synopsis to President-elect Trump during the first week of January 2017 by "four of the senior-most US intelligence chiefs," including FBI Director Comey. CNN Article at 1-2; see also FOIA Request at 3 (stating the "two page synopsis included allegations derived from a 35 page 'dossier' allegedly compiled by a former British intelligence operative" and published by BuzzFeed). The Nunes Memo confirms this description of events. It places Director Comey in a briefing of President-elect Trump regarding a summary of the Dossier in January 2017. These parallels lead the court to conclude that the "synopsis" sought by Plaintiffs is in fact the "summary" acknowledged by the Nunes Memo.
It is true that the Nunes Memo does not use the word "synopsis." But that is not fatal. The context in which the official acknowledgement was made leads to the obvious inference that the FBI possesses the two-page synopsis Plaintiffs seek. Is it reasonable to conclude that the synopsis does not exist or that the FBI does not possess it, even though the FBI has, in the words of the Nunes Memo, undertaken a "rigorous process to vet allegations from Steele's reporting"? Of course not. No reasonable person would accept as plausible that the nation's top law enforcement agency does not have the two-page synopsis in light of these officially acknowledged facts of its actions. As the D.C. Circuit observed in ACLU , "[t]he Glomar doctrine is in large measure a judicial construct, an interpretation of FOIA exemptions that flows from their purpose rather than their express language."
*151By authorizing the release of the Nunes Memo to make known the existence of the "summary" of the Dossier on which he was briefed, the President has publicly acknowledged the existence of the two-page synopsis in Director Comey's possession. The FBI therefore can no longer assert a Glomar response to Plaintiffs' demand for that record.
B.
Items Two and Three: Final Determinations and Investigative Files . For much the same reasons already discussed, it remains no longer logical nor plausible for the FBI to maintain that it cannot confirm nor deny the existence of documents responsive to Plaintiffs' second and third requests: (1) "[f]inal determinations regarding the accuracy (or lack thereof) of any of the individual factual claims listed in the two page synopsis" and (2) the "[i]nvestigative files relied upon in reaching [such] final determinations."
The Memos reveal that the FBI has undertaken substantial efforts to confirm the accuracy of the Dossier's reporting. The Nunes Memo expressly acknowledges the existence of "a source validation report," conducted by an "independent unit within [the] FBI," which "assessed Steele's reporting as only minimally corroborated." Nunes Memo at 6. The Schiff Memo takes a more favorable view of a portion of Steele's reporting, and provides even more information about the FBI's efforts. It explains that "Steele's information about [Carter] Page was consistent with the FBI's assessment of Russian intelligence efforts to recruit him and his connections to Russian persons of interest," Schiff Memo at 6, and that the FBI had reached a sufficient level of confidence in Steele's reporting about Carter Page's alleged coordination with Russian officials to include that information in a FISA warrant application, id. at 8. Additionally, the Schiff Memo states: "The FBI has undertaken a rigorous process to vet allegations from Steele's reporting, including with regard to Page." Id. at 8. Unless the court is to believe that the FBI undertook these efforts without creating any memoranda or other papers containing assessments about Steele's reporting and did not gather files for that purpose-a wholly implausible proposition-the Nunes and Schiff Memos are "tantamount to an acknowledgment that the [FBI] has documents on [those] subject[s]." ACLU ,
Defendants counter that the absence of any express reference in the Memos to efforts to validate the synopsis, as opposed to the Dossier, allows them to stand on Glomar responses as to Items Two and Three. But that position defies logic. As a "summary" of the Dossier, Nunes Memo at 6, the synopsis undeniably contains some subset of the Dossier's allegations. It is simply not plausible to believe that, to whatever extent the FBI has made efforts to verify Steele's reporting, some portion of that work has not been devoted to allegations that made their way into the synopsis. After all, if the reporting was important enough to brief the President-elect, then surely the FBI thought enough of those key charges to attempt to verify their accuracy. It will be up to the FBI to determine which of the records in its possession relating to the reliability of the Dossier concerns Steele's reporting as discussed in the synopsis. Accordingly, the FBI has waived its Glomar responses as to Items Two and Three of Plaintiffs' FOIA request.
The same cannot be said, however, about the Intelligence Community Defendants. Neither the Nunes Memo nor the Schiff Memo makes any reference to any effort by the Intelligence Community Defendants to determine the accuracy (or *152lack thereof) of any of the individual factual claims contained in the synopsis. Although an official presidential statement can vitiate a Glomar response for an executive branch agency, see ACLU ,
IV.
For the foregoing reasons, consistent with Rule 62.1, the court states that, on remand, the court would grant Plaintiffs' Motion for Reconsideration as to all of the FBI's Glomar responses. The court, however, denies the Motion for Reconsideration as to the Intelligence Community Defendants' Glomar responses to Plaintiffs' second and third FOIA requests. See Fed. R. Civ. P. 62.1(a)(2).
Citations to both the Nunes and Schiff Memos are to the page numbers electronically generated by CM/ECF.
Although drafted by Legislative Branch staff, Defendants here do not dispute that the Nunes and Schiff Memos constitute official public statements of the President that could give rise to a Glomar waiver. Cf. James Madison I ,
Reference
- Full Case Name
- JAMES MADISON PROJECT v. DEPARTMENT OF JUSTICE
- Cited By
- 5 cases
- Status
- Published