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Cable News Network, Inc. v. Federal Bureau of Investigation

United States District Court, District of Columbia

February 2, 2018

CABLE NEWS NETWORK, INC., Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE.

         On May 9, 2017, President Donald Trump fired James Comey as Director of the Federal Bureau of Investigation. In the fallout from that event, news rapidly circulated about numerous private conversations between the two men over the preceding months. The exchanges left the former Director feeling unnerved and, apparently, wanting a paper trail. On June 8, Comey testified publicly that while still in office, he had created several contemporaneous memoranda documenting up to nine conversations with the President. The content of those memos has since been the subject of intense public speculation and is the focus of these consolidated cases.

         Plaintiffs, which include various news organizations and non-profits, all sought copies of the so-called Comey Memos via a tried-and-true method: The Freedom of Information Act, 5 U.S.C. § 552 et seq. The Government denied each request, claiming that the release of these documents would interfere with the Office of Special Counsel's ongoing investigation into links between Russia and Trump's 2016 campaign team. Plaintiffs then brought these suits, and both sides now seek summary judgment. After reviewing the Memos in camera, as well as receiving a sealed ex parte proffer from the Special Counsel's Office, the Court agrees with the Government's assessment. As it prevails here, the Comey Memos, at least for now, will remain in the hands of the Special Counsel and not the public.

         I. Background

         Drawing from public reports, the Court begins by recounting the now-familiar story of Comey's termination, as well as his much-discussed Memos. (The appointment of and investigation by the Special Counsel will be covered in Part III, infra.) It then outlines the procedural history of this case.

         A. Factual Background

         On March 20, 2017, then-Director Comey confirmed in public testimony “that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and Russia's efforts.” Statement Before the House Permanent Select Committee on Intelligence, available at https://www.fbi.gov/ news/testimony/hpsci-hearing-titled-russian-active-measures-investigation. He added, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” Id. Two months later, the President fired Comey, citing, among other reasons, frustration with the ongoing probe into Russian interference, which he saw as “an excuse by the Democrats for having lost [the] election.” CNN Statement of Undisputed Material Facts, ¶ 29.

         On May 16, 2017 - one week after Comey left office - news of his Memos first broke. The New York Times published a report about an Oval Office meeting between President Trump and the then-Director, said to have taken place on February 14 of that year. During this one-on- one conversation, the President allegedly referenced a potential investigation into his former National Security Advisor Michael Flynn's contacts with Russia, telling Comey, “I hope you can see your way clear to letting this go, to letting Flynn go.” Michael S. Schmidt, Comey Memo Says Trump Asked Him to End Flynn Investigation, N.Y. Times (May 16, 2017), available at https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html. The Times report was based on “a memo Mr. Comey wrote shortly after the meeting.” Id. According to the newspaper, “Mr. Comey shared the existence of the memo with senior F.B.I. officials and close associates, ” one of whom “read parts of [the Memo] to a Times reporter.” Id.

         Spurred by this report, the Senate Select Committee on Intelligence held a hearing, during which Comey corroborated the Times account. On June 8, he testified under oath for nearly three hours, fielding myriad questions about his Memos. See Hearing with Former FBI Director James Comey, 115th Cong. (June 8, 2017) (Statement of James B. Comey), available at https://www.intelligence.senate.gov/sites/default/files/documents/os-jcomey-060817.pdf. He there explained that after his first conversation with then-President-Elect Trump, he “felt compelled to document” their encounter in a memo, which he “began to type . . . on a laptop in an FBI vehicle outside Trump Tower the moment [he] walked out of the meeting.” Id. at 2.

         According to Comey, “Creating written records immediately after one-on-one conversations with Mr. Trump was [his] practice from that point forward.” Id. He thought he had done so “after each of [his] nine conversations” with the President, or at least “for nearly all of them, especially the ones that were substantive.” Transcript of Comey Hearing, available at https://www.intelligence.senate.gov/hearings/open-hearing-former-fbi-director-james-comey#. Comey said he had memorialized these conversations out of concern that President Trump “might lie about the nature of our meeting.” Id. In such a scenario, he wanted a contemporaneous account “to defend the FBI and our integrity as an institution and the independence of our investigative function.” Id.

         B. Procedural Background

         The same day that news spread of Comey's memoranda, Plaintiff Cable News Network submitted a FOIA request for copies of “all records of notes taken by or communications sent from FBI Director James Comey regarding or documenting interactions (including interviews and other conversations) with President Donald Trump.” Def. MSJ (First Declaration of David M. Hardy), ¶ 6; see also id., Exh. CNN-B (CNN FOIA Request). CNN was not the only one interested in the Comey Memos. Plaintiffs Daily Caller News Foundation, non-profit organizations Judicial Watch and Freedom Watch, and USA Today (the business name of Gannett Satellite Information Network), along with its reporter Brad Heath, the James Madison Project, and journalists Garrett Graff and Lachlan Markay, all submitted FOIA requests to the same end. See First Hardy Decl., ¶¶ 14, 21, 30, 37, 44. Some Plaintiffs (including the USA Today group and Freedom Watch) sought additional related records, which are outside the scope of the instant summary-judgment motions. See, e.g., id., ¶ 44.

         The Department of Justice responded to each request by letter dated June 16, 2017, invoking Exemption 7(A) to withhold all documents. To wit, it stated: “The records responsive to your request are law enforcement records. There is a pending or prospective law enforcement proceeding relevant to these responsive records, and the release of the information could reasonably be expected to interfere with enforcement proceedings.” Id., Exhs. CNN-F, USA Today-D, JMP/Graff-D, JMP/Markay-C, JW-D, FW-D. Undeterred, all Plaintiffs timely brought actions in this Court, suing, variously, the FBI and DOJ. The Court consolidated their cases on July 31, 2017. See Minute Order.

         Four months later, the Government moved for partial summary judgment as to all requests related to the Comey Memos, and Plaintiffs, in turn, filed cross-motions for the same. To bolster its case, the Department of Justice also sought leave to introduce an ex parte and in camera affidavit from David W. Archey, a Deputy Assistant Director with the Counterintelligence Division, who currently supervises all FBI personnel assigned to the investigation into Russia's interference with the 2016 Presidential election. See ECF No. 23. After the parties finished briefing, the Court granted the Government's request and ordered, at Plaintiffs' behest, that it also produce all withheld Memos for in camera review. See Minute Order of Jan. 11, 2018.

         The Court reviewed those submissions and, out of an abundance of caution, thought it helpful to seek more specifics as to the Memos' connection with an ongoing investigation. It therefore asked that an attorney from the Office of Special Counsel proffer such information. Michael R. Dreeben, who serves as Counsel to the Special Counsel, did so in a sealed, on-the-record ex parte session. Finally, in response to this Court's follow-up questions about that sealed proffer, the Government submitted the Third Declaration of David W. Archey in camera and ex parte. See ECF No. 47. (The agency previously moved to submit the Second Declaration of David W. Archey regarding records other than the Memos, see ECF No. 46, and the Court has not yet ruled on that motion.) Although none of this material is currently available to Plaintiffs, all forms part of the record that could be reviewed on appeal or in any subsequent litigation.

         II. Legal Standard

         Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         FOIA cases typically are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may accept an “agency's affidavits, without pre-summary judgment discovery, if the affidavits are made in good faith and provide reasonably specific detail concerning the methods used to produce the information sought.” Broaddrick v. Exec. Office of the President, 139 F.Supp.2d 55, 64 (D.D.C. 2001). “Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). “Summary judgment may not be appropriate without in camera review, ” however, “when agency affidavits in support of a claim of exemption are insufficiently detailed.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). In such a circumstance, “district court judges [have] broad discretion in determining whether in camera review is appropriate.” Id. at 577-78.

         III. Analysis

         The country (or at least the Beltway) has spent months abuzz about the Comey Memos and what they might reveal. Despite rampant media speculation, however, the Memos themselves have remained out of public view. The Government hopes to keep it that way, but to withhold release under FOIA, it must satisfy two elements. First, it must “demonstrate the . . . adequacy of the search” for relevant documents. Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Second, it must show that the withheld material “falls within one of nine statutory exemptions.” People for the Ethical Treatment of Animals v. Nat'l Institutes of Health, 745 F.3d 535, 540 (D.C. Cir. 2014). Plaintiffs attack the Government's efforts at each step.

         A. Adequ ...


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