Protect Democracy Project, Inc. v. DOD, No. 17-00842, 2018 WL 3995884 (D.D.C. August 21, 2018) (Cooper, J.)
Re: Documents related to President's legal authority to launch cruise missile strike in Syria
Disposition: Granting in part and denying in part parties' cross motions for summary judgment
- Exemption 5, Waiver, Presidential Communications Privilege: In examining whether three draft versions of a legal memorandum were properly withheld, the court first determines that press statements from government officials "do not plausibly match the analysis in the legal memorandum closely enough to constitute official acknowledgement." The public statements did not mention the existence of a legal memorandum about the strikes, "nor did any officials publicly state a legal rationale particularized enough" such that it "duplicate[d] the analysis of a seven-page interagency memorandum." Additionally, the court finds, "nor does the recently released 2018 OCL opinion officially acknowledge the contents of the 2017 memorandum."
The court holds that the presidential communications privilege justifies withholding the memorandum. The court explains that the National Security Council's Legal Adviser "is the sort of 'immediate White House adviser' whose national security documents are subject to protection by the privilege" and that "opinions solicited by the Deputy NSC Legal Adviser are no less protected." The court explains, "even if the legal analysis in the memorandum was not communicated to the President," the fact that "the staff of a close national security adviser leading up to an important military decision" solicited the opinion "shows that the document was created for the purpose of advising the President on that decision."
- Exemption 5, Attorney-Client Privilege: The court holds that an outline "'prepared by OLC attorneys for the purpose of advising the Attorney General regarding the legal basis' for the strike" is exempt under the attorney-client privilege. The outline "summarized legal advice that an interagency group of lawyers had given the President's national security team [discussed above]" and "there is no evidence that the specific legal advice provided in the memorandum and summarized in the outline was disclosed beyond that group."
- Exemption 5, Deliberative Process Privilege: The court holds that "several sets of talking points designed to assist Executive Branch officials in responding to inquiries from the press and from Congress" are predecisional and deliberative, and "revealing their contents would expose the process by which agency officials crafted a strategy for responding." In response to the plaintiff's argument that the government has officially acknowledged the contents, the court finds that "most of their content has not been officially acknowledged," with one exception where "at least one government official has, in an on-the-record statement, replicated a paragraph that appears in several of the guidance documents." Accordingly, the court requires the government to "release the portions of the talking point documents that contain this paragraph."