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James Madison Project v. Department of Justice

United States District Court, District of Columbia

August 16, 2018

JAMES MADISON PROJECT, et al., Plaintiffs,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          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 ...


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