INDICATIVE RULING AND ORDER AS TO PLAINTIFFS'
MOTION FOR RECONSIDERATION
AMIT
P. MEHTA UNITED STATES DISTRICT JUDGE.
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, 2018 WL
3719231 (D.D.C. Aug. 3, 2018). In this case, the court must
decide whether the February 2018 public release of two
congressionally drafted memoranda-popularly known as the
“Nunes Memo” and the “Schiff
Memo”-vitiates Defendants' Glomar
responses to Plaintiffs' demand for records concerning a
“two-page synopsis” of the Dossier.
The
court initially granted summary judgment in favor of
Defendants. See generally James Madison Project v.
Dep't of Justice (“James Madison I”),
302 F.Supp.3d 12 (D.D.C. 2018), appeal docketed, No.
18-5014 (D.C. Cir. Jan. 25, 2018). It held that neither the
President's tweets and other public statements, nor the
public statements of other high-ranking government officials,
constituted a public acknowledgment that the documents sought
by Plaintiffs James Madison Project and Josh Gerstein in fact
exist and are possessed by Defendant agencies. See
Id. Plaintiffs then filed a notice of appeal, but
shortly after moved for reconsideration in light of the Nunes
Memo's release. Plaintiffs' notice of appeal,
however, divested the court of jurisdiction over this matter.
See United States v. DeFries, 129 F.3d 1293, 1302
(D.C. Cir. 1997) (per curiam) (“The filing of a notice
of appeal . . . ‘confers jurisdiction on the court of
appeals and divests the district court of control over those
aspects of the case involved in the appeal.'”
(quoting Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982)). Accordingly, Plaintiffs now ask the
court to indicate, under Federal Rule of Civil Procedure
62.1, that it would grant their Motion upon remand.
See Fed. R. Civ. P. 62.1(a)(3). Defendants assert
that reconsideration is not warranted and urge the court to
deny the Motion.
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, 302 F.Supp.3d at 17. These
responses remained unanswered at the time Plaintiffs filed
this action. See Id. 17-18.
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 Id. at 18. As to Item One, only the
FBI advanced a Glomar response, while the
Intelligence Community Defendants admitted the existence and
their possession of the “two-page
‘synopsis'” but invoked FOIA Exemptions 1 and
3 to justify withholding the document in its entirety.
See Id. Defendants then moved for summary judgment,
which the court granted in full on January 4, 2018. See
Id. at 17. The court held that: (1) Defendants'
Glomar responses to Items Two and Three were proper,
see Id. at 31- 35; (2) the FBI's Glomar
response to Item One was appropriate, see Id. at
29-31; and (3) the Intelligence Community Defendants'
withholding of the two-page synopsis was justified, see
id. at 35-36. Plaintiffs then noticed an appeal from the
court's ruling. See Notice of Appeal, ECF No.
38.
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 Pls.' 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 ...