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In the United States District Court for the District of Columbia Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 1 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) Civil No. 19-1552 (ABJ) ) U.S. DEPARTMENT OF JUSTICE, ) ) Defendant. ) ____________________________________) PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND RENEWED MOTION TO DISMISS AND CROSS-MOTION FOR SUMMARY JUDGMENT Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 2 of 25 TABLE OF CONTENTS INTRODUCTION …………………………………………………………………….. 1 BACKGROUND ………………………………………………………………………. 2 ARGUMENT …………………………………………………………………………... 9 I. The Withheld Documents are Neither Pre-Decisional Nor Deliberative and Therefore Do Not Fall Within the Scope of Exemption 5 ................................... 9 A. The documents at issue are not predecisional ………………………….. 10 B. The two withheld documents are not deliberative ………………………14 C. DOJ has not demonstrated foreseeable harm from disclosure of the two documents ………………………………………………………16 II. The Attorney Client Privilege Does Not Protect the Two Documents at Issue From Disclosure …………………………………………………………. 18 III. The Court Need Not Rule on Defendant’s Motion to Dismiss Claim Two ……. 20 CONCLUSION ………………………………………………………………………… 21 i Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 3 of 25 TABLE OF AUTHORITIES Cases Animal Welfare Inst. v. Nat'l Oceanic & Atmospheric Admin., 370 F. Supp. 3d 116 (D.D.C. 2019)………………………………………………………………………………………………9 Brinton v. Dep’t of Justice, 636 F.2d 600 (D.C. Cir. 1980)……………………………………. 19 Cause of Action Institute v. U.S. Dep’t of Justice, 330 F. Supp. 3d 336 (D.D.C. 2018)……….. 18 Center for Investigative Reporting v. U.S. Customs & Border Protection, 436 F. Supp. 3d 90 (D.D.C. 2019)…………………………………………………………………………………... 16 Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980) ................. 10, 14, 18 CREW v. U.S. Dep't of Justice , 746 F.3d 1082 (D.C. Cir. 2014)…………………………………9 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 442 F. Supp. 3d 37 (D.D.C. 2020)……1, 15, 17 Fisher v. United States, 425 U.S. 391 (1976)…………………………………………………... 18 Heggestad v. U.S. Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000) ......................................... 14 In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014)……………………………. 18 In re Lindsey, 148 F.3d 1100 (D.C. Cir. 1998)…………………………………………………. 19 Jimenez v. FBI, 938 F. Supp. 21 (D.D.C. 1996) ........................................................................... 14 Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 375 F. Supp. 3d 93 (D.D.C. 2019)………….. 16 Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 926 F. Supp. 2d 121 (D.D.C. 2013) 18, 19 Judicial Watch, Inc. v. U.S. Dep’t of Justice, 2019 WL 4644029 (D.D.C. Sept. 24, 2019)……. 17 Milner v. U.S. Dep't of Navy, 562 U.S. 562 (2011)……………………………………………….9 Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204 (D.C. Cir. 2015)…………………………..9 N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ........................................................... 14 Quinon v. FBI, 86 F.3d 1222 (D.C. Cir. 1996)…………………………………………………..20 Rosenberg v. U.S. Dept. of Defense, 342 F. Supp. 3d 62 (D.D.C. 2018)……………… 16, 17, 20 Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997)…………………………………………… 18 U.S. Dep't of Justice v. Reporters Committee For Freedom of Press, 489 U.S. 749 (1989)…….. 9 Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) ................................................................. 15, 16 ii Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 4 of 25 Wolfe v. Dep't of Health & Human Servs., 839 F.2d 768 (D.C. Cir. 1988)…………………..10 Statutes 5 U.S.C. § 552(a)(8)(A)(i)……………………………………………………………………. 17 5 U.S.C. § 552(b)(5) …………………………………………………………………………… 9 28 U.S.C. § 509……………………………………………………………………………… 2, 11 28 U.S.C. § 510 ......................................................................................................................... 2, 11 28 U.S.C. § 515 ............................................................................................................................. 11 28 U.S.C. § 515(a) .......................................................................................................................... 2 5 U.S.C. § 552(b)(5) ....................................................................................................................... 7 Regulations 28 C.F.R § 600.6 ............................................................................................................................. 3 28 C.F.R § 600.7(b) ............................................................................................................ 3, 12, 13 28 C.F.R § 600.8(c)…………………………………………………………………………….3, 4 28 C.F.R § 600.9(a)(3) ............................................................................................................ 3, 6, 7 28 C.F.R §§ 600.4-600.10 ......................................................................................................... 3, 11 iii Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 5 of 25 INTRODUCTION On April 18, 2019, the Attorney General of the United States stood before the American people and perpetuated a misinformation campaign by falsely describing the findings of Special Counsel Robert Mueller. To bolster his conclusion that the evidence the Special Counsel developed was not sufficient to establish that President Trump had committed an obstruction-of- justice offense, Attorney General William Barr explicitly referenced his consultation with the Office of Legal Counsel (“OLC”), an office that is no stranger to being cited by the Executive Branch as the definitive word on an issue or interpretation. Preceding Attorney General Barr’s press statement was an equally noteworthy letter he sent to Congress on March 24, 2019, purporting to summarize the key findings of the Mueller Report. In fact, that letter also presented a misleading summary of the Special Counsel’s findings. The coup de grace was a letter the Attorney General released publicly on April 18, 2019, just before making the Mueller Report public, which echoed and expanded on his misrepresentations at his press conference. Taken as a whole, Attorney General Bar’s actions have been characterized as “attempts to spin the findings and conclusions of the [Mueller] Report.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Justice, 442 F. Supp. 3d 37, 48 (D.D.C. 2020). This lawsuit seeks to expose OLC’s role in these efforts, a role the Department of Justice (“DOJ”) has fought vigorously to keep secret. Initially DOJ moved to dismiss the complaint for failure to exhaust administrative remedies, arguing against the clear weight of authority. Now DOJ has moved for summary judgment claiming the documents at issue fall within the scope of Exemption 5 of the Freedom of Information Act (“FOIA”) and were properly withheld in response to CREW’s FOIA request. But the premise for DOJ’s invocation of the deliberative process and attorney client privileges to justify the withholdings is fundamentally flawed. OLC Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 6 of 25 created the documents at issue not to provide legal advice to aid Attorney General Barr in deciding whether to bring a prosecution—a decision that the Attorney General had delegated to Special Counsel Mueller. Instead, OLC’s memorandum served to help the Attorney General falsely spin the findings of Special Counsel Mueller into a vindication of President Trump and to sow doubt about and undermine the findings of the Special Counsel. The FOIA offers no protection for those efforts, which are not protected by either the deliberative process privilege or the attorney client privilege and instead reflect the kind of misconduct for which the FOIA was intended to provide an avenue of public access. BACKGROUND The statutory underpinnings to the documents at issue help explain their non-privileged status. The Attorney General may delegate the broad authority that 28 U.S.C. § 509 vests in him to “any other officer, employee, or agency of the Department of Justice.” 28 U.S.C. § 510. This includes directing “an attorney specially appointed by the Attorney General” to “conduct any kind of legal proceeding, civil or criminal[.]” Id. § 515(a). Pursuant to these authorities, then- Acting Attorney General Rod Rosenstein1 appointed Robert Mueller as Special Counsel on May 17, 2017, and authorized him to conduct an investigation of the “Russian government’s efforts to interfere in the 2016 election” including “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Office of the Deputy Attorney General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference With the 2016 Presidential Election and Related Matters, 1 Deputy Attorney General Rosenstein served as acting attorney general in this matter due to the recusal of Attorney General Sessions “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” Attorney General Sessions Statement on Recusal, Dep’t. of Justice Office of Public Affairs, Mar. 2, 2017, https://www.justice.gov/opa/pr/attorney-general-sessions-statement -recusal. 2 Case 1:19-cv-01552-ABJ Document 17-1 Filed 09/02/20 Page 7 of 25 https://www.justice.gov/opa/press-release/file/967231/download. Acting Attorney General Rosenstein’s order expressly authorized
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