Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the FBI properly issued a Glomar response neither confirming nor denying the existence of records in response to a request from the James Madison Project and Politico reporter Josh Gerstein for records concerning whether President Donald Trump is or was ever a target of, subject of, or material witness to any investigation. In response to the request, the FBI issued a Glomar response based on Exemption 7(A) (interference with ongoing investigation or proceeding) and Exemption 7(E) (investigative methods or techniques). JMP and Gerstein argued that a series of public statements made by Trump constituted official acknowledgment of the records and waived the government's ability to claim the Glomar defense. They initially pointed to Trump's letter firing then FBI Director James Comey in which Trump wrote that "I greatly appreciate you informing me, on three separate occasions, that I am not under investigation. . ." Jackson found Trump's statement contained "no mention of any 'agency record' or written memorandum, that was shared with the President or was referenced in the conversation. 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, or material witness.' These terms have specific meaning that is not captured by the President's language. Plaintiffs contend that this is an 'overly-literal' interpretation, but the 'insistence on exactitude' is what the official acknowledgment doctrine demands." JMP and Gerstein argued that the D.C. Circuit's ruling in ACLU v. Dept of Defense, 628 F.3d 612 (D.C. Cir. 2011) had modified the burden of proof under the official acknowledgment doctrine to the extent that an overwhelming inference that records existed was sufficient. Jackson indicated that the unique circumstances present in ACLU v. Dept of Defense were not present here. She pointed out that "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." JMP and Gerstein also pointed to Trump's interview with Lester Holt of NBC in which he discussed his reasons for firing Comey as evidence that Trump had acknowledged the existence of records. Jackson disagreed, noting that "again, none of these statements summarizing conversations with the FBI official explicitly refer to the existence of any record within the agency, or necessarily imply the existence of such records." Jackson rejected claims by JMP and Gerstein that a number of other statements made by Trump confirmed the existence of records concerning investigations. She also rejected two opposing memos by the House Intelligence Committee as providing public acknowledgment. Here, she pointed out "a memorandum issued by members of a House Committee cannot constitute an official disclosure on behalf of the FBI and DOJ." She observed that "even if the President's decision to de-classify and release the memorandum somehow transforms the statement into on of his own for purposes of this analysis. . .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."
Issues: Determination - Glomar response

Date Filed	Doc #	Docket Text
2017-07-14	1	COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5031930) filed by JAMES MADISON PROJECT, JOSH GERSTEIN. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Rule 7.1 certification, # 3 Summons DOJ, # 4 Summons USADC, # 5 Summons USAG)(Moss, Bradley) Modified on 7/14/2017 (zsth). (Entered: 07/14/2017)
2017-07-14		Case Assigned to Judge Amy Berman Jackson. (sth) (Entered: 07/14/2017)
2017-07-14	2	SUMMONS (3) Issued Electronically as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 07/14/2017)
2017-07-14	3	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JAMES MADISON PROJECT. (sth) (Entered: 07/14/2017)
2017-07-24	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 7/21/2017 (Attachments: # 1 Exhibit (certified mail receipt))(Moss, Bradley) (Entered: 07/24/2017)
2017-07-24	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/21/2017. Answer due for ALL FEDERAL DEFENDANTS by 8/20/2017. (Attachments: # 1 Exhibit (certified mail receipt))(Moss, Bradley) (Entered: 07/24/2017)
2017-08-18	6	ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Motgi, Anjali) (Entered: 08/18/2017)
2017-08-21		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff on or before September 18, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/21/2017. (lcabj3) (Entered: 08/21/2017)
2017-08-21	7	NOTICE of Appearance by Mark Steven Zaid on behalf of All Plaintiffs (Zaid, Mark) (Entered: 08/21/2017)
2017-08-22	8	MOTION for Hearing Scheduling of Immediate Status Conference by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) Modified event title on 8/23/2017 (znmw). (Entered: 08/22/2017)
2017-08-23		MINUTE ORDER denying plaintiffs' 8 motion for an immediate status conference. The Court is not persuaded that an acceleration of the schedule is required under all of the circumstances. Defendant must file either a production schedule or a dispositive motion by September 18. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/23/2017.(lcabj3) (Entered: 08/23/2017)
2017-09-07	9	MOTION for Extension of Time to File Dispositive Motion or Production Schedule by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Motgi, Anjali) (Entered: 09/07/2017)
2017-09-07	10	Memorandum in opposition to re 9 MOTION for Extension of Time to File Dispositive Motion or Production Schedule filed by JAMES MADISON PROJECT, JOSH GERSTEIN. (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 09/07/2017)
2017-09-07		MINUTE ORDER granting in part and denying in part defendant's 9 motion for an extension of time. Defendant shall file a dispositive motion or a schedule for the production of documents to plaintiffs by October 11, 2017. Further, the Court reminds counsel that a legal pleading is not a press release, and that the use of an unnecessarily vituperative or sarcastic tone tends to detract from, rather than enhance, the quality of the advocacy in support of one's position. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/7/2017. (lcabj3) (Entered: 09/07/2017)
2017-10-11	11	MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration of David M. Hardy (FBI), # 2 Declaration of Daniel R. Castellano (DOJ), # 3 Text of Proposed Order)(Motgi, Anjali) (Attachment 1 replaced on 10/12/2017) (znmw). (Entered: 10/11/2017)
2017-10-25	12	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by JAMES MADISON PROJECT, JOSH GERSTEIN. (Attachments: # 1 Statement of Facts Response, # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 10/25/2017)
2017-10-25	13	Cross MOTION for Summary Judgment (Partial) by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Moss, Bradley) (Entered: 10/25/2017)
2017-10-26	14	Unopposed MOTION for Extension of Time to File Combined Reply and Opposition by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Motgi, Anjali) (Entered: 10/26/2017)
2017-10-27		MINUTE ORDER granting defendant's 14 motion for an extension of time. Defendant shall file a combined reply in support of its summary judgment motion and opposition to plaintiffs' cross-motion for summary judgment by November 22, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/27/2017. (lcabj3) (Entered: 10/27/2017)
2017-10-30		Set/Reset Deadlines: Response to Cross Motion due by 11/22/2017. Reply to Motion for Summary Judgment due by 11/22/2017. (tb) (Entered: 10/30/2017)
2017-11-22	15	REPLY to opposition to motion re 11 MOTION for Summary Judgment and Opposition to Plaintiffs' Partial Cross-Motion for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Motgi, Anjali) (Entered: 11/22/2017)
2017-11-22	16	Memorandum in opposition to re 13 Cross MOTION for Summary Judgment (Partial) filed by DEPARTMENT OF JUSTICE. (See Docket Entry 15 to view document). (znmw) (Entered: 11/27/2017)
2017-11-29	17	REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment (Partial) filed by JAMES MADISON PROJECT, JOSH GERSTEIN. (Attachments: # 1 Exhibit 1 - DOJ Memo)(Moss, Bradley) (Entered: 11/29/2017)
2018-01-09	18	NOTICE OF SUPPLEMENTAL AUTHORITY by DEPARTMENT OF JUSTICE (Motgi, Anjali) (Entered: 01/09/2018)
2018-01-16	19	RESPONSE re 18 Notice of Supplemental Authority filed by JAMES MADISON PROJECT, JOSH GERSTEIN. (Attachments: # 1 Exhibit 1 - (Hardy Declaration in Comey Memo litigation))(Moss, Bradley) Modified event title and added link on 1/17/2018 (znmw). (Entered: 01/16/2018)
2018-01-23	20	MOTION to Strike 19 Reply to Document by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Motgi, Anjali) (Entered: 01/23/2018)
2018-01-25		MINUTE ORDER. On January 9, 2018, the defendant filed a notice of supplemental authority 18 in support of its motion for summary judgment. This was an appropriate means to bring a recent decision to the Court's attention even in the absence of a federal or local rule that expressly covers such a filing. Thereafter, plaintiff filed a response 19 to the notice, which, for the most part, argued why the decision was distinguishable and should not govern this Court's decision on the pending summary judgment motions. This was also appropriate under the circumstances even in the absence of a federal or local rule that expressly covers such a filing. While the Court agrees with defendant's observation that the response went somewhat beyond the scope of the notice of authority, and that it included additional argument in favor of plaintiff's position, it will deny the motion to strike. The attachment to which defendant objects, a copy of a submission docketed in a different case in this district, was supplied in support of an entirely argumentative and conclusory point, and it requires little response. However, if the defendant has something to say in response to the plaintiff's response that it has not said before, it may file a brief reply. But the Court notes that it is well-aware of the issues that have been presented in the motion for summary judgment and what matters may and may not be considered in connection with that motion. It is also capable of comparing the facts and legal principles at issue in the January 4, 2018 decision with the facts and legal principles before the Court in this case. And both parties should be advised that increasingly sharp and repetitive submissions are not likely to be helpful to the Court.Signed by Judge Amy Berman Jackson on 01/25/2018. (lcabj3) (Entered: 01/25/2018)
2018-01-29	21	MOTION for Leave to File Supplement to the Factual Record by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 01/29/2018)
2018-01-30		MINUTE ORDER granting 21 Motion for Leave to File. This ruling 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, which called for records memorializing discussions or disclosures "regarding whether President Trump is or ever was a target of, subject of, or material witness to any investigation." Signed by Judge Amy Berman Jackson on 01/30/2018. (lcabj3) (Entered: 01/30/2018)
2018-03-01	22	MOTION for Leave to File to Supplement the Factual Record by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Exhibit 1 - Schiff Memo, # 2 Exhibit 2 - DOJ Response, # 3 Text of Proposed Order)(Moss, Bradley) (Entered: 03/01/2018)
2018-03-01		MINUTE ORDER granting 22 Motion for Leave to File. The Clerk of Court is directed to file Dkt. 22-1 and Dkt. 22-2. This does not constitute a finding by the Court that the exhibits shed light on the issues to be resolved in this case, and no further briefing concerning the exhibits is necessary. Signed by Judge Amy Berman Jackson on 03/01/2018. (lcabj3) (Entered: 03/01/2018)
2018-03-01	23	SUPPLEMENT the Factual Record re 13 Cross MOTION for Summary Judgment (Partial) filed by JAMES MADISON PROJECT, JOSH GERSTEIN. (jf) (Entered: 03/05/2018)
2018-05-02	24	MOTION for Leave to File Supplement the Record by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) Modified event title on 5/9/2018 (znmw). (Entered: 05/02/2018)
2018-05-07		MINUTE ORDER. Plaintiff's motion 24 for leave to supplement the record is granted insofar as plaintiff may file a supplemental pleading setting out the date and content of any new statements (i.e. statements it has not presented to the Court before) that it contends should be considered as official disclosures 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." See Complaint [Dkt. # 1]. The pleading must simply list the statements and may not include any additional argument; plaintiff's position on the question of what constitutes an official disclosure and the legal effect of the President's tweets has been set forth on multiple occasions in this case. Signed by Judge Amy Berman Jackson on 05/07/2018. (lcabj3) (Entered: 05/07/2018)
2018-06-04	25	MOTION for Leave to Supplement the Record by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 06/04/2018)
2018-06-08		MINUTE ORDER granting 25 Motion to Supplement the Record. This ruling should not be interpreted as a determination by the Court that this general statement, 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, which called for records memorializing discussions or disclosures "regarding whether President Trump is or ever was a target of, subject of, or material witness to any investigation." Signed by Judge Amy Berman Jackson on 06/08/2018. (lcabj3) (Entered: 06/08/2018)
2018-06-28	26	NOTICE OF SUPPLEMENTAL AUTHORITY by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Exhibit 1 - ACLU ruling)(Moss, Bradley) (Entered: 06/28/2018)
2018-08-30	27	NOTICE OF SUPPLEMENTAL AUTHORITY by JAMES MADISON PROJECT, JOSH GERSTEIN (Moss, Bradley) (Entered: 08/30/2018)
2018-08-31	28	MOTION for Leave to File to Supplement the Record and for Oral Arguments by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 08/31/2018)
2018-09-05	29	MOTION for Leave to File Supplement to the Record by JAMES MADISON PROJECT, JOSH GERSTEIN (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 09/05/2018)
2018-09-07		MINUTE ORDER. The Court grants plaintiffs' motion 28 for leave to supplement the record but it finds that there is no need for oral argument, so it will deny that request. Signed by Judge Amy Berman Jackson on 09/07/2018. (lcabj3) Modified on 9/10/2018 to include the document number of the motion being granted. (jth). (Entered: 09/07/2018)
2018-09-07		MINUTE ORDER. The Court grants plaintiffs' motion 29 to supplement the record. Signed by Judge Amy Berman Jackson on 09/07/2018. (lcabj3) (Entered: 09/07/2018)
2018-09-07	30	ORDER. Pursuant to Federal Rules of Civil Procedure 56 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's Motion for Summary Judgment 11 is GRANTED and plaintiffs' Cross-Motion for Partial Summary Judgment 13 is DENIED. This is a final appealable order. SO ORDERED. Signed by Judge Amy Berman Jackson on 09/07/2018. (lcabj3) (Entered: 09/07/2018)
2018-09-07	31	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 09/07/2018. (lcabj3) (Entered: 09/07/2018)
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