Citizens for Resp. & Ethics in Wash. v. DOJ, No. 19-2267, 2024 WL 3387374 (D.D.C. Aug. 20, 2024) (Alikhan, J.)

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 19-2267, 2024 WL 3387374 (D.D.C. Aug. 20, 2024) (Alikhan, J.)

Re:  Request for records concerning investigation into potential campaign finance violations and obstruction of justice by individuals associated with Donald Trump’s presidential campaign

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Attorney Work-Product:  The court holds that “Exemption 5 is inapplicable to the SDNY Correspondence on the record currently before the court.”  The court relates that “the SDNY Correspondence . . . is comprised of two groupings of memoranda and emails shared between SDNY officials, the Office of the Attorney General (‘OAG’), and the Office of the Deputy Attorney General (‘ODAG’) from late 2018 into early 2019.”  “The first batch of correspondence originated in November 2018.”  “DOJ states that around that time, ODAG requested that the SDNY ‘provide a list of certain current open investigations, along with current investigative steps.’”  “The SDNY shared this list, which consisted of ‘a brief description of the investigation, its status, and anticipated investigative steps’ in a November 29, 2018 email.”  “ODAG later asked the SDNY to create a memorandum summarizing these investigations, which resulted in a December 15 memorandum ‘address[ing] the current status’ of the pending investigations.”  “The second batch of correspondence was created ‘in connection with a meeting between the [newly confirmed] Attorney General and the Deputy U.S. Attorney on or about February 25, 2019.’”  “A memorandum dated February 22, 2019 ‘summarized’ sensitive pending investigations in advance of the meeting, and a subsequent March 1 memorandum ‘was prepared to provide additional information and to respond to certain questions asked by the Attorney General at the February 25 meeting.’”
  
  First, regarding the deliberative process privilege, the court finds that “DOJ has not carried its burden because it does not explain how the SDNY Correspondence is predecisional or how it is deliberative.”  “Crucially, DOJ has not identified what deliberative process or decision is in play.”  “It states that when a subordinate litigating component like the SDNY provides information to the OAG or ODAG, the superior components are deciding ‘whether and how to weigh in on the investigations, including by endorsing, modifying, or rejecting the contemplated actions of subordinate offices, especially when information relates to high-profile and sensitive investigations.’”  “This does not clarify ‘what deliberative process is involved’ – instead, it vaguely gestures to some undefined potential decision.”  “The court does not know ‘the “where,” i.e., the stage within the broader deliberative process in which the withheld material operates; and the “how,” i.e., the way in which the withheld material facilitated agency deliberation.’”
  
  “For many of the same reasons explained above, DOJ has not carried its burden to support [the] application of the work-product privilege.”  “DOJ’s declarations are so conclusory that the court cannot determine with certainty whether the privilege applies.”  “[Defendant] states that the SDNY Correspondence was ‘prepared in anticipation of potential prosecution of one or more individuals,’ including an individual or individuals other than former President Trump.”  “However, DOJ does not provide detailed and specific information supporting a credible conclusion that litigation was sufficiently concrete to warrant work-product privilege – it merely restates the legal standard with little more detail.”  “The lack of detail is problematic because it is not obvious whether the author of the documents believed that litigation was a real possibility or whether the documents were created ‘because of’ the prospect of litigation.”  “The documents at issue ‘describe the status’ of the relevant investigations and ‘provide additional information’ to agency higher-ups.”  “It is not clear whether the documents would have been prepared but-for the alleged ‘potential prosecution’ to which DOJ gestures.”  “If the documents would have been prepared regardless of any specific litigation, they could not have been prepared ‘because of’ it.”  “DOJ seems to suggest that because these records were created by lawyers, in the context of their jobs as prosecutors, it is obvious that credible litigation would follow.”  “But that is not the test.”  “Just because a senior DOJ official could choose to make a litigation-related decision after reviewing a document does not mean that he necessarily would.”  “That does not clear the bar set by FOIA.”
  
  Separately, the court relates that “DOJ invokes FOIA Exemptions 5, 6, and 7(C) to justify its withholding of reports and notes of interviews conducted during the SDNY’s investigations into potential campaign finance violations and obstruction of justice.”  “The relevant documents include FD-302s, interview memoranda, and handwritten interview notes created between February 2018 and April 2019.”  “These documents were prepared by FBI Special Agents, SDNY Agents, and other prosecutors around interviews that occurred on April 19, 2018 and January 14, 2019.”  “DOJ has already released redacted versions of similar records stemming from interviews with individuals that have publicly acknowledged their involvement in the investigation.”  “The remaining withheld documents are ‘associated with interviews for which neither the witnesses nor the government have publicly acknowledged . . . participation.’”  “The court concludes that these materials qualify as work product protected under Exemption 5.”  “These records are at the heart of the work-product privilege.”  “Unlike with other records at issue in this case, the court is able to determine from DOJ’s declarations that the authors of these materials believed that litigation was a real possibility at the time of their creation and that the documents were created ‘because of’ the prospect of litigation.”  “The court is further satisfied that the documents were created ‘because of’ the potential for prosecution.”  “Disclosure of such detailed information would surely reveal the prosecutors’ legal analysis, including their theory of the case and other strategic assessments.”  “There would have been no reason to conduct the interviews, particularly with the involvement of prosecutors, absent a possible prosecution.”  “It does not matter that some of the records were created by FBI or SDNY Special Agents because the prosecutors directed their actions and designed the interviews.”  “It is well established that the work-product privilege extends to materials created by an attorney’s agent.”  “[Plaintiff] argues that the applicability of Exemption 5 to the interview records ‘hinges in part on questions that would very likely be answered by in camera review of the SDNY Correspondence’ because if ‘no litigation was reasonably foreseeable in late 2018 or early 2019, the interview records drafted during that same period were not attorney work-product.’”  “The court is not persuaded.”  “The court must assess the work-product privilege’s applicability to each particular document requested.”  “With respect to the interview records, DOJ has provided detailed explanations of the process by which the documents were created, such that the court is satisfied that the exemption applies.”  “In particular, [defendant’s] declarations provide sufficient context for the court to concludes that the documents were created ‘because of’ potential prosecutions.”
   
• Exemption 6; Exemption 7(C):  The court relates that “DOJ invokes Exemptions 6 and 7(C) to withhold portions of the SDNY Correspondence, rather than the full tranche of documents.”  The court finds that “[t]he privacy interest at issue is potentially strong because, generally, ‘individuals have an obvious privacy interest cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement investigation.’”  “But this privacy interest is ‘somewhat diminished’ for public officials and those who have already been publicly connected to an investigation.”  “As [plaintiff] notes, DOJ’s descriptions of the documents they seek to withhold are quite vague, such that [plaintiff] – and the court – cannot assess how the privacy interest applies.”  “The parties define the public interest in this case differently.”  “DOJ characterizes the public interest as “inform[ing] the public about why the Department declined to prosecute any individuals besides [one].’”  “[Plaintiff] points to two slightly more specific purposes:  (1) showing whether ‘DOJ pulled its punches in the investigation of President Trump’; and (2) revealing ‘the extent to which the President’s use of his appointment powers improperly influenced investigations of his personal conduct.’”  “[Plaintiff] has the better of the argument, as there is a weighty public interest in learning how DOJ ‘carried out [its] statutory duties to investigate and prosecute criminal conduct.’”  “While the public interest is strong, the privacy interests at issue could potentially outweigh it, depending on the particular identities of those implicated.”  “The court thus lacks the information it needs to appropriately assess application of Exemptions 6 and 7(C).”  “Accordingly, with respect to the SDNY Correspondence, the court denies DOJ’s motion for summary judgment without prejudice to its renewal accompanied by supplemental declarations.”
  
  The court also relates that “DOJ invokes FOIA Exemptions 6 and 7(C) to justify its withholding of four batches of search warrant records.”  “The documents include internal FBI records memorializing the execution of a search and various supporting documentation for the warrants like applications and supporting affidavits.”  “Both batches of documents relate to the campaign finance investigations.”  “The court finds that Exemptions 6 and 7(C) apply and DOJ may withhold the records.”  “The privacy interests of the affected individuals are strong.”  “‘There is little question that disclosing the identity of targets of law-enforcement investigations can subject those identified to embarrassment and potentially more serious reputational harm.’”  “[Plaintiff] argues that any individuals the government has already publicly linked to the investigation have a diminished privacy interest.”  “Not so.”  “DOJ clarifies that although the names of ‘one or more of the relevant individual(s) have appeared in other government documents, the fact that these individual(s)’ property was subject to search has not been officially acknowledged or disclosed.’”  “These individuals retain a strong privacy interest because disclosure of the documents would reveal previously unknown details about their involvement with the campaign finance investigation.”  “[Plaintiff] argues that . . . disclosure of the ‘search records would help the public understand whether DOJ failed to use the full breadth of its powers while investigating the President’s role in [the prosecuted’s] offenses and the President’s efforts to conceal the hush-money scheme.’”  “[Plaintiff] is correct that there is a strong public interest in learning whether DOJ properly exercised its power to prosecute campaign finance crimes or if, instead, the SDNY ‘pulled punches or Department leadership intervened.’”  “However, [plaintiff] does not make clear how the search warrant records are ‘likely to advance that interest.’”  “[T]he search warrant records at issue here largely contain factual assertions devoid of legal analysis that may shed light on DOJ’s prosecutorial strategy.”  “Further, much of this factual material has already been released through public filings in [the] criminal proceedings.”  “These are not memoranda comprised of probative communication between DOJ and the SDNY or documents analyzing the strength of a potential criminal charge.”  “Accordingly, the information in the search warrants is disconnected from the public interest at issue.”  “On balance, then, the substantial privacy interests prevail because, although [plaintiff’s] articulated public interest is weighty, the nexus between that interest and the documents is tenuous.”