Leopold v. FBI, No. 22-1921, 2025 WL 445183 (D.D.C. Feb. 10, 2025) (Howell, J.)

Leopold v. FBI, No. 22-1921, 2025 WL 445183 (D.D.C. Feb. 10, 2025) (Howell, J.)

Re: Request for five categories of information related to “‘Presidential Records removed from the Trump White House that were stored at Mar-a-Lago’” and an additional category of information related to “‘Presidential Records from the Trump White House that were destroyed and Presidential Records from the Trump White House that were allegedly flushed down the toilet’”

Disposition:  Denying defendants’ motion for summary judgment; granting plaintiff’s cross-motion for summary judgment

• Exemption 7(A): The court relates that “[t]he FBI’s issuance of a Glomar response, and related decision not to search for responsive records, as to the sixth category of requested information, and withholding of any responsive documents in its Mar-a-Lago investigative file as to the first five categories of requested information, is based solely on FOIA Exemption 7(A).” First, the court finds that “[a]ssuming arguendo that any records responsive to the sixth category of requested information were compiled for law enforcement purposes, the FBI has failed to support its Glomar response because no pending or reasonably anticipated ‘investigation [that] continues to gather evidence for a possible future criminal case,’ . . . has been identified as existing and no enforcement proceeding remains ‘pending or contemplated[]’ . . . .”  The court explains that “during the pendency of this case, the DOJ dismissed all federal charges against President Trump and has moved to dismiss the appeal, with prejudice, challenging the district court’s dismissal of the indictment as to his co-defendants.”  “As such, the DOJ’s intervening actions have mooted the only pending or contemplated enforcement proceedings the FBI has identified . . . that could potentially be harmed by confirming or denying the existence of records described in category six.”  “Contrary to the FBI’s fear that acknowledging the existence, or lack thereof, of records responsive to category six would ‘reasonably be expected to hamper prosecutorial efforts by exposing potential witness or sources to harassment, intimidation, coercion, physical threats or actual harm,’ . . . no ‘prosecutorial efforts’ that may be ‘hamper[ed]’ by lifting the Glomar response remain pending or contemplated.” “Moreover, defendants fail to demonstrate that future enforcement proceedings are ‘reasonably anticipated.’”  “As plaintiff pointedly highlights, as to President Trump, ‘there is a reasonable argument that [he] is immune from prosecution for flushing his own records down the toilet while in office.’”  “Defendants try to duck consideration of the repercussions of this radical shift in the legal landscape made by the Supreme Court’s grant to the president of absolute and presumptive immunity from criminal liability for conduct while in office, saying that President Trump’s potential immunity from prosecution need not be considered due to the ‘heavy burden on agencies’ to ‘consider the merits of various defenses, like immunity, that the target of an investigation might assert in an eventual criminal trial.’”  “Neither party . . . cites any precedent for their respective positions regarding the extent to which the burden on the agency invoking Exemption 7(A) encompasses the evaluation of potential immunity defenses, . . . presumably because of the novelty of this issue in the wake of the Supreme Court’s new grant of immunity to the President.”  “Exemption 7(A) is forward looking and explicitly requires an agency to consider whether records compiled for law enforcement purposes ‘could reasonably be expected to interfere with enforcement proceedings,’ . . . because such proceedings, if not pending, are ‘reasonably anticipated.’”  “Here, whether a law enforcement action against President Trump may be reasonably anticipated is a necessary showing for defendants to invoke Exemption 7(A) . . . .”  “As such, defendants have not shouldered their burden by submitting supporting declarations that ignore whether reviving a criminal enforcement proceeding against President Trump is even possible.”
  
  “Additionally, the FBI has failed to support its Glomar response with respect to any alleged criminal conduct that occurred after President Trump lost the 2020 presidential election.”  “The FOIA request seeks ‘Presidential Records from the Trump White House that were destroyed and Presidential Records from the Trump White House that were allegedly flushed down the toilet,’ . . . without limitation with respect to when such conduct occurred, i.e., whether President Trump or anyone else allegedly flushed presidential records down the toilet or otherwise destroyed presidential records while President Trump was in office during his first term or after he lost the 2020 presidential election.”  “While the FBI’s proffered reasons for its Glomar response for any alleged criminal conduct that occurred during President Trump’s first term are unpersuasive given the agency’s failure to consider whether or not such a law enforcement proceeding is reasonably anticipated, or even possible, due to presidential criminal liability immunity, as discussed above, the agency also cannot point to a reasonably anticipated enforcement proceeding for any conduct that occurred after President Trump lost the 2020 presidential election and left the White House.”  “As a result of the election held on November 5, 2024, President Trump was inaugurated as President of the United States on January 20, 2025 . . . .”  “[A]nd ‘[i]t has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President[]’ . . . .”  “Consequently, President Trump enjoys ‘temporary’ immunity from criminal prosecution until the end of his presidential term in January of 2029 . . . and the statute of limitations of the charges against him or those plausibly applicable to his alleged conduct that were the subject of Special Counsel Smith’s investigation will have expired.”  “Like its failure to grapple with whether President Trump’s absolute or presumed immunity from criminal liability forecloses a reasonably anticipated enforcement proceeding, the FBI has similarly neglected weighing the extent to which President Trump’s current role precludes a reasonably anticipated enforcement proceeding.”  “As such, the FBI’s Glomar response fails regardless of whether the alleged conduct at issue occurred during or in the months after President Trump’s first term.”
  
  “Finally, recent events have thoroughly removed any residual basis for the argument that confirming or denying the existence of records responsive to category six could interfere with law enforcement proceedings against persons other than the president or in an ongoing investigation.” “As already noted, the government has dismissed all federal felony charges against President Trump and has moved to dismiss the appeal, with prejudice, challenging the district court’s dismissal of the indictment as to his co-defendants that stemmed from the investigation at Mar-a-Lago. Special Counsel Smith’s investigation, the only investigation relied upon in defendants’ affidavits . . . has concluded . . . .”  “The federal prosecutors assisting Special Counsel Smith in his investigation and in bringing the now-dismissed criminal actions have been fired.”  “Thus, defendants’ averments for invoking Exemption 7(A) that law enforcement proceedings are pending or reasonably likely . . . are no longer ‘logical or plausible.’”
  
  “The same is true regarding defendants’ argument that ‘[i]f the FBI disclosed the existence or nonexistence of records responsive to Item No. 6 of Plaintiff’s request at this stage of the FBI’s investigation, such a disclosure could reasonably be expected to hamper and interfere with the pending investigation.’”  “This is not a situation where the FBI has refused to confirm or deny whether an investigation exists at all.”  “Instead, the FBI has confirmed the existence of an investigation but refuses to confirm or deny a ‘facet of the investigation,’ . . . because ‘in consultation with Special Counsel’s Smith’s office, [the FBI] determined that merely acknowledging the existence or non-existence of records responsive to Item No. 6 of plaintiff’s request reasonably could be expected to interfere with [the Special Counsel’s] ongoing investigation.’”  “Simply put, that investigation, which is the sole investigation defendants rely on to support their use of a Glomar response, is no longer pending but in fact closed and the investigating officials fired under the new Trump Administration.”
  
  “The FBI has invoked Exemption 7(A) to withhold in toto documents that are contained within the agency’s Mar-a-Lago investigative file.”  “Defendants’ arguments in support of putting this investigative file off-limits from the FOIA request largely mirror those that asserted to maintain the FBI’s Glomar response.”  “[A]s noted, that investigation is no longer active nor even pending since the investigation is closed – critical circumstances substantially undermining reliance on Exemption 7(A).”  “Indeed, the dedicated public servants who worked on and have the deepest knowledge of the facts underlying this investigation, including career federal prosecutors in Special Counsel Smith’s Office, have been summarily fired by the new Trump Administration.”  “‘[R]eliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close.’”  “This has happened here.”  “The same intervening events that make obsolete the FBI’s Glomar response . . . also prevent the FBI from categorically withholding, under Exemption 7(A), responsive documents contained within an investigative file.”