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IB Final Brief

IB Final Brief

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Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
____________________________________)
Civil Action No. 15-cv-1740 (RBW)
PLAINTIFF REPLY DEFENDANT OPPOSITION PLAINTIFF
CROSS-MOTION FOR SUMMARY JUDGMENT
Paul Orfanedes
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
Attorneys for Plaintiff
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
TABLE CONTENTS
Introduction ..........................................................................................................................1
II.
Argument .............................................................................................................................2
The Murphy Declarations ........................................................................................4
The Archives Prior Disclosure Argument ...........................................................9
Privacy vs. Public Interest......................................................................................11
III.
Rule 6(e) and the Archives ......................................................................................2
Segregablity ...........................................................................................................16
Conclusion .........................................................................................................................19
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
TABLE AUTHORITIES
Cases
Afshar U.S. Dep State,
702 F.2d 1125 (D.C. Cir. 1983) .........................................................................................10
Am. Civil Liberties Union U.S. Dep State,
878 Supp.2d 215 (D.D.C. 2012) ....................................................................................16
Bagwell U.S. Dep Justice,
2015 U.S. Dist. LEXIS 169270 (D.D.C. Dec. 18, 2015) .....................................................8
Callaway U.S. Dep Treas.,
2007 U.S. Dist. LEXIS 10251 (D.D.C. Aug. 31, 2007) ....................................................10
Citizens for Responsibility and Ethics Wash. U.S. Dep Justice,
746 F.3d 1082 (D.C. Cir. 2014) .........................................................................................13
Davis U.S. Dep Justice,
968 F.2d 1276 (D.C. Cir. 1992) .........................................................................................10
Fund for Constitutional Government National Archives and Records Serv.,
656 F.2d 856 (D.C. Cir. 1981) .............................................................................................2 Madison Guaranty Savings and Loan,
334 F.3d 1119 (D.C. Cir. 2003) ...........................................................................................8 Petition Craig,
131 F.3d (2d Cir. 1997)...................................................................................................9 Sealed Case,
192 F.3d 995 (D.C. Cir. 1999) .......................................................................................9, Sealed Case,
151 F.3d 1059 (D.C. Cir. 1998) .........................................................................................18
Juarez U.S. Dep Justice,
518 F.3d (D.C. Cir. 2008) .............................................................................................16
Mead Data Central, Inc. U.S. Dep Air Force,
566 F.2d 242 (D.C. Cir. 1977) ...........................................................................................16
Milner Dep the Navy,
562 U.S. 562 (2011) .............................................................................................................2
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
National Archives and Records Admin. Favish,
541 U.S. 157 (2004) .............................................................................................................3
Shapiro U.S. Dep Justice,
2016 U.S. Dist. LEXIS 7535 (D.D.C. Jan. 22, 2016) ..........................................................8
Rules and Statutes
Fed. Civ. 56(c) ......................................................................................................................14
Fed. Crim. 6(e) .............................................................................................................. passim
Fed. Crim. 6(e)(2)(B) ..............................................................................................................4
LCvR 7(h)(1) .................................................................................................................................14 U.S.C. 552(b) ...........................................................................................................................16 U.S.C. 594(h) ...........................................................................................................................8 U.S.C. 594(h)(2) ..............................................................................................................12, U.S.C. 594(k)(1) ......................................................................................................................3 U.S.C. 594(k)(3)(A) .................................................................................................................3
iii
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
Plaintiff Judicial Watch, Inc. Judicial Watch counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this reply opposition
Defendant National Archives and Records Administration opposition Judicial Watch
cross-motion for summary judgment.
MEMORANDUM POINTS AND AUTHORITIES
Introduction. light the publication hundreds pages grand jury and other evidence and
analysis the Final Report the Independent Counsel Madison Guaranty Savings and
Loan Association, published January 2001 the Report and the 206 page memorandum,
dated April 22, 1998 All OIC Attorneys, from the HRC Team and bearing the subject line
Summary Evidence: Hillary Rodham Clinton and Webb Hubbell the Evidence
Memorandum ),1 the Archives invocation Rule 6(e) and Exemption 7(C) raises basic, core
question: what grand jury secrecy personal privacy interest the draft indictments remain protected? The Archives has answer this question. Its attempt withhold the draft
indictments issue fatally flawed result. addition, the Archives combined reply and opposition fundamentally changes the
agency purported reasons for withholding the draft indictments from Plaintiff. The Archives
initially claimed that disclosure the draft indictments would reveal the identities witnesses
who testified before the grand jury, documents subpoenaed the grand jury, and actual grand
jury testimony. The Archives now appears claim that the draft indictments not contain
direct, grand jury evidence, but only reflect compilation and distillation the net result
the grand jury investigation. also appears claim that withholding the draft indictments
Volume II, Part the Report attached Plaintiff Response Defendant Statement Material Facts Not Dispute and Statement Undisputed Material Facts Support Cross-Motion for Summary Judgment
Exhibit The Evidence Memorandum attached that same document Exhibit
-1-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
from Plaintiff because the Archives has longstanding policy withholding draft indictments
when indictment was returned grand jury.
What clear that, given the Archives failure answer the fundamental question
raised this lawsuit and its opaque and shifting, not contradictory, reasons for its
withholdings, the Archives claims exemption cannot sustained. The draft indictments
must produced Plaintiff. minimum, the Archives should only allowed withhold
information the draft indictments that would directly reveal actual, non-public, grand jury
material.
II.
Argument.
Rule 6(e) and the Archives.
The Archives forgets that the Freedom Information Act FOIA disclosure
statute, not withholding statute, and that FOIA exemptions must narrowly construed.
Milner Dep the Navy, 562 U.S. 562, 565 (2011). also disregards the admonishment that
FOIA exemptions are explicitly made exclusive. Id. Unless record clearly falls within one FOIA exclusive, narrowly construed exemptions, the record must produced.
Although Plaintiff raised the issue expressly, the Archives failed identify single case which was found subject grand jury secrecy rules have authority withhold
records under Rule 6(e). Fund for Constitutional Government National Archives and Records
Serv., 656 F.2d 856 (D.C. Cir. 1981) not that case. The request issue Fund for
Constitutional Government was made prosecutors, not the Archives predecessor agency, and
the records issue were the custody and control prosecutors, not the predecessor agency,
when the request was made. Id. 860. Fund for Constitutional Government also did not
-2-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
address, much less decide, the question whether the predecessor agency had authority
withhold responsive records under Rule 6(e). also predates the independent counsel statute.
National Archives and Records Admin. Favish, 541 U.S. 157 (2004), which the
Archives also cites, did not concern Rule 6(e) grand jury secrecy all. concerned
photographs taken U.S. Park Police during the course investigation, not any matter
occurring before grand jury. Id. 160-61. The Archives withheld the photographs under
FOIA Exemption 7(C), not Rule 6(e). Favish does not support the Archives argument either.
The remainder the Archives argument effectively seeks rewrite both Rule 6(e) and
the independent counsel statute. The Archives cannot and does not argue that among the
persons and entities expressly identified Rule 6(e) being subject the rule secrecy
provisions. also cannot and does not argue that the independent counsel statute authorizes the
Archives invoke Rule 6(e) withhold independent counsel records requested under FOIA.
The statute says such thing. requires that independent counsel records transferred the
Archivist upon the termination investigation and, that [b]efore this transfer, the
independent counsel shall clearly identify which these records are subject rule 6(e) and
which these records have been classified national security information. U.S.C.
594(k)(1). also requires that independent counsel records transferred the Archivist shall
governed section 552 title which FOIA. Id. 594(k)(3)(A). does not say that
the Archives serve the agent the independent counsel U.S. Department Justice for
purposes grand jury secrecy obligations that stands these entities shoes.
completely silent the question.
The Archives tries fill this silence making policy arguments, but those arguments
are unavailing. Congress obviously intended create entirely different statutory scheme for
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Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
information gathered during the course independent counsel investigations because the
statute reporting requirements and comment provisions are completely odds with ordinary
criminal investigations. The statute labeling obligation just that and nothing more. Reading according its terms does not transform into make work provision. Congress also could
have easily included language section 594(k) authorizing the Archives withhold grand jury
material from FOIA requesters even though the Archives not referenced Rule 6(e).
obviously did not, and the absence such provision does not mean one should read into the
statute.
The Archives also does not point any other source law that authorizes, obligates,
requires withhold grand jury material contained records transferred following the
conclusion independent counsel investigations. Given Rule 6(e) express limitation its
own applicability, its express affirmation that [n]o obligation secrecy may imposed any
person except accordance with the rule own terms (Fed. Crim. 6(e)(2)(B)), and the
absence any express provision the independent counsel statute authorizing the Archives
withhold independent counsel records under Rule 6(e), Congress intent clear. This clear
intent further confirmed the well-established admonitions that FOIA exemptions are
exclusive and intended construed narrowly and that FOIA disclosure statute, not
withholding statute. The Archives cannot invoke Rule 6(e) withhold independent counsel
records requested under FOIA.
The Murphy Declarations.
The Archives does not claim that every line each draft indictment reveals matter
occurring before the grand jury. Fed. Crim. 6(e)(2)(B). Any such claim would
disingenuous. indictment typically contains caption, list offense(s) being charged,
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Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
brief statement when and where the alleged offense(s) took place and how the accused
alleged have committed the offense(s), and signature block. For each count, the indictment
also must give the official customary citation the statute, rule, regulation, other provision law that the accused alleged have violated. None these items requires revealing
matters that occurred before the grand jury, and, any event, indictments typically not
identify particular witnesses who testified before the grand jury, particular documents
subpoenaed the grand jury, quote from even describe grand jury testimony. her first declaration, Chief Archivist Martha Wagner Murphy testified that the draft
indictments collectively reflect[] names and identifying information individuals subpoenaed intended subpoenaed testify before the grand jury well information
identifying specific records subpoenaed during the grand jury process. Declaration Martha
Wagner Murphy 1st Murphy Decl. para. 25. She also testified that the drafts reflect and
quote grand jury testimony, and reveal the inner workings and direction the grand jury. Id. Ms. Murphy assessment correct, then the draft indictments are atypical documents.
Nonetheless, any such names, individual documents, quoted testimony could redacted
provided was not among the voluminous grand jury material already made public the D.C.
Circuit the Archives either the Report the Evidence Memorandum. The remainder then
could disclosed Plaintiff. This appears the process followed the Archives
producing the Evidence Memorandum, although Plaintiff has identified substantial grand jury
material disclosed through the publication the Evidence Memorandum that does not appear
have been disclosed through the publication the Report. See Second Declaration Paul
Orfanedes 2nd Orfanedes Decl. attached Exhibit para. 3.2
This additional declaration not based new material, but further analysis the same charts and material
the Report and the Evidence Memorandum attached and described the Declaration Paul Orfanedes 1st
-5-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
When Plaintiff brought the Court attention the truly enormous quantities grand
jury material already made public the Report and Evidence Memorandum, Ms. Murphy
changed her testimony. her second declaration, Ms. Murphy backs away from any claim that
the draft indictments identify individual witnesses subpoenaed documents quote from
witnesses testimony directly. Instead, she describes the draft indictments collectively
reflecting evidence gathered during the independent counsel investigation:
These draft indictments reflect the net result all the evidence gathered
throughout the grand jury investigatory process; they represent compilation and
distillation all the evidence gathered and presented before the grand jury
until the time the draft indictments were prepared. result, they are
inextricably intertwined with the grand jury process and are not subject
segregation.
Second Declaration Martha Wagner Murphy 2nd Murphy Decl. para. result,
Plaintiff and the Court are left with inconsistent, not contradictory descriptions the draft
indictments. the drafts identify particular, individual witnesses and subpoenaed documents? they quote from individual grand jury witnesses actual testimony, unlikely that seems? they refer such materials generally simply reflect the collective fruits all the
independent counsel efforts? the drafts only reflect the collective fruits the independent
counsel work and producing them Plaintiff would reveal Rule 6(e) material, how the draft
indictments differ substance from final indictment and why would publication any final
indictment not violate Rule 6(e)? Rather than clarifying the basis for the Archives
withholdings, Ms. Murphy second declaration makes the basis for the agency withholdings
even less clear. also unclear how, the draft indictments represent compilation and distillation evidence, the Archives not also withholding non-grand jury evidence gathered during the
Orfanedes Decl. See Plaintiff Response Defendant Statement Material Facts Not Dispute and
Statement Undisputed Material Facts Support Cross-Motion for Summary Judgment, Exhibit
-6-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
independent counsel investigation. 2nd Murphy Decl. para. Ms. Murphy asserts her
second declaration that none the drafts that reviewed contained information that
determined had been obtained separate from the grand jury process. Id. para. She does not
say how this determination was made how the Archives differentiated between investigatory
materials generated from the grand jury process and investigatory material generated from other
aspects the independent counsel investigation. She also does not say how, even if, the
Archives was able determine whether the draft indictments compile and distill from the grand
jury investigation only, the non-grand jury aspects the independent counsel investigations,
both.3 The more the Archives explains its withholdings, the less comprehensible they become. not even clear what comparison, any, the Archives undertook the substance
the draft indictments, the Report, and the Evidence Memorandum. Ms. Murphy testifies that the
Report and the Evidence Memorandum contrast with the draft indictment issue this
litigation both purpose and form, but she does not assert that they differ factually
substance. 2nd Murphy Decl. para. anything, differences substance between the
records already made public the Report and the Evidence Memorandum and the records not
yet made public the draft indictments lie the heart this case, yet Ms. Murphy silent
this issue. The Archives has not satisfied its burden proving its Rule 6(e) claim.
Moreover, Ms. Murphy also testifies her second declaration that the Archives decision withhold the draft indictments from Plaintiff was based longstanding practice regarding
draft indictments general: NARA practice therefore withhold, its entirety, any draft
indictment living person indictment ever formally issued the grand jury against
that person. 2nd Murphy Decl. para. According Ms. Murphy, the Archives can Plaintiff demonstrated its opening memorandum, the Report and the Evidence Memorandum show that the
independent counsel relied substantial, non-grand jury material. See 1st Orfanedes Decl. Exhibits and
-7-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
ascertain that indictment has been issued, its practice release both the indictment well any the underlying drafts, least those portions the drafts that are relevant any
charges that are ultimately brought. Id. para.
There nothing particularly unique about draft indictments, however, that warrants any
kind special treatment, policy, practice. Bagwell U.S. Dep Justice, 2015 U.S. Dist.
LEXIS 169270, (D.D.C. Dec. 18, 2015), the Court did not treat draft indictment responsive FOIA request any differently than any other responsive records finding that the agency
failed satisfy its burden proof. also obvious that not all draft indictments are identical,
and certainly not all draft indictments are prepared independent counsel, who were governed very different set rules than are other prosecutors. See U.S.C. 594(h) (requiring
independent counsel report); Madison Guaranty Savings and Loan, 334 F.3d 1119, 1128
(D.C. Cir. 2003) (noting that the requirement for independent counsel reports complete
departure from the authority United States Attorney and contrary the practice federal
Grand Jury investigations the extent the Archives claims that was only following
long-established practice not disclosing draft indictments unless indictment was formally
issued, then the Archives has failed satisfy its FOIA obligations because following agency
practice not grounds for withholding records requested under FOIA. Shapiro U.S. Dep
Justice, 2016 U.S. Dist. LEXIS 7535, *45 (D.D.C. Jan. 22, 2016) (rejecting FBI FOIA policy
withholding search slips and other processing records because FOIA itself does not so, and
the FBI cannot act the basis exemption exclusion that Congress has not provided.
Regardless, Ms. Murphy testimony about the Archives longstanding practice only add
further confusion whether the Archives actually conducted individualized, line-by-line
review each draft indictment simply determined that, because the grand jury did not return
-8-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page indictment against Mrs. Clinton, agency practice required the drafts not produced.
result Ms. Murphy opaque and shifting, not contradictory, testimony, Plaintiff and the
Court have clear picture what review the Archives actually conducted, and the Archives
has failed satisfy its burden proof its claims exemption.
The Archives Prior Disclosure Argument.
Plaintiff does not claim that the draft indictments issue have ever previously been
disclosed. Plaintiff does not make prior disclosure argument. Rather, Plaintiff argues that
much grand jury and non-grand jury material from the independent counsel investigation has
been made public that there secrecy left protect.4 Plaintiff demonstrated its
opening brief, grand jury material can lose its protected status when becomes sufficiently
widely known. Sealed Case, 192 F.3d 995, 1004 (D.C. Cir. 1999). The extent which
the grand jury material particular case has been made public clearly relevant because even
partial previous disclosure often undercuts many the reasons for secrecy. Id. (quoting
Petition Craig, 131 F.3d 99, 107 (2d Cir. 1997). Whether grand jury material has lost its
secrecy should considered the prima facie stage. Id. 1004, 12. the agency seeking withhold records requested under FOIA, the Archives bears the
burden proving that exemption applies. this instance, the Archives bears the burden proving that the draft indictments are secret. citing the mountain investigatory
materials, including both grand jury and non-grand jury evidence, made public the Report and
the Evidence Memorandum, Plaintiff has demonstrated that any grand jury material the draft
indictments longer secret or, minimum, that that there longer reason for any
secrecy. Sealed Case, 192 F.3d 1004. Accordingly, the Archives cannot meet its burden proving the prima facie stage that Rule 6(e) applies. Id. 1004, n.12.
The same true for evidence gathered the independent counsel outside the grand jury process.
-9-
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page prior disclosure argument like affirmative defense that shifts the burden
proof the requester after the agency has satisfied its initial burden. plaintiff asserting prior
disclosure claim bears the burden pointing specific information the public domain that
appears duplicate that being withheld. Afshar U.S. Dep State, 702 F.2d 1125, 1130
(D.C. Cir. 1983) (emphasis added). The ultimate burden persuasion, sure, remains with
the government, but party who asserts that material publicly available bears the burden
production that issue. Davis U.S. Dep Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992)
(emphasis original). Otherwise, the government would face the task proving negative
that the information has not been revealed, situation which might require the government
undertake exhaustive, potentially limitless search. Callaway U.S. Dep Treas., 2007
U.S. Dist. LEXIS 102512, *31 (D.D.C. Aug. 31, 2007) (quoting Davis, 968 F.2d 1280)
(emphasis original). Because the Archives failed prove that the information the draft
indictments secret, the burden never shifted Plaintiff satisfy prior disclosure
affirmative defense.
Plaintiff has satisfied this burden production any event. Davis, 968 F.2d 1279.
Specifically, Plaintiff cited and produced the Report and the Evidence Memorandum. the
extent the Archives argues that the draft indictments identify individual witnesses names,
particular documents subpoenaed the grand jury, and actual quotes grand jury testimony,
Plaintiff has identified voluminous quantities precisely such grand jury materials that have
already been made public both the Report and the Evidence Memorandum. minimum,
the Archives should have compared the Report and the Evidence Memorandum the draft
indictments, identified any particular materials the draft indictment that are still secret, and
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
redacted only those materials from the drafts.5 the extent the Archives argues that the draft
indictments represent compilation and distillation grand jury materials that collectively
reflects the strategy and direction the grand jury investigation, then the Archives must produce
the draft indictments their entirety because Plaintiff has identified and produced records the
Report and Evidence Memorandum which this strategy and direction have been publicly
disclosed. The Evidence Memorandum particular quintessential strategy and direction
document. Its purpose was set forth possible charges against Mrs. Clinton, including all the
evidence that had been gathered, the prosecutors legal theories, and different ways the evidence
and legal theories could presented jury. Similarly, the purpose the Report was
summarize the investigation findings and conclusions. the Archives argument strategy
and direction argument, fails.
However analyzed, obvious that there secrecy left protect the draft
indictments. minimum, the Archives has not demonstrated that withholding the draft
indictments necessary protect any grand jury secrets those records still might contain. The
Archives Rule 6(e) claim fails.
Privacy vs. Public Interest.
Despite claiming that Mrs. Clinton personal privacy outweighs any public interest
disclosure the draft indictments, the Archives fails identify single, specific privacy interest
Ms. Murphy carefully avoids stating that such comparison was ever undertaken. She makes cryptic reference follow[ing] the same approach was undertaken with the Report and the Evidence Memorandum, but she
never actually, affirmatively states that the Archives compared the Report and the Evidence Memorandum the
draft indictments. Even her testimony *with respect the comparison the Report and the Evidence
Memorandum ambiguous. She testifies that the Archives analysis enabled draw important distinctions
between information the Evidence Memorandum that had already been released the public the Final Report,
and information the Evidence Memorandum that was considered grand jury information and should continue withheld, but that not the relevant comparison. The Archives should have compared grand jury information
the Report and the Evidence Memorandum any grand jury information the draft indictments. stands,
when the Archives produced the Evidence Memorandum, appears have disclosed substantial amounts grand
jury material not previously disclosed through the publication the Report. 2nd Orfanedes Decl. para.
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
Mrs. Clinton still has the draft indictments following the publication the Report and the
Evidence Memorandum. The Archives relies generic quotes about Mrs. Clinton ability
control information, the presumption innocence, and Mrs. Clinton having defend herself non-judicial, public forum, but those claims ring hollow light the hundreds pages
grand jury materials, non-grand jury materials, and independent counsel legal theories and
analysis that are already the public domain. The Archives makes claim that disclosure
the draft indictments will reveal any particular personal, medical, financial information about
Mrs. Clinton, much less anything intimate potentially embarrassing. The Archives does not
even claim disclosure will reveal anything prosaic about Mrs. Clinton, such her date place birth, date marriage, street address, telephone number, email address. Little, anything,
lies the privacy side the scale, and certainly nothing concrete specific.
The Archives also faults Plaintiff for assuming, but not showing, that the D.C. Circuit
authorized publication the independent counsel five, final Whitewater reports. Does the
Archive really contend that the reports were released without the requisite authorization? See
U.S.C. 594(h)(2) The division the court may release Congress, the public, any
appropriate person, such portions report made under this subsection the division the
court considers appropriate. Plaintiff asked the Court take judicial notice the most
directly relevant report, the January 2001 Final Report the Independent Counsel
Madison Guaranty Savings and Loan Ass See Plaintiff Response Defendant Statement Material Facts Not Dispute and Statement Undisputed Material Facts Support
Cross-Motion for Summary Judgment n.1. The Archives failed respond Plaintiff
request for judicial notice and, result, waived any objection. The Report itself evidence
its authorized publication.
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
Regardless, Plaintiff point was (and is) that the D.C. Circuit was fully cognizant the
privacy implications releasing the Report, but nonetheless authorized its release without
making any effort protect personal privacy interests. See U.S.C. 594(h)(2) The division the court shall make such orders are appropriate protect the rights any individual
named such report. Contrary the Archives claims, the D.C. Circuit clearly did vitiate
Mrs. Clinton privacy interests publishing the Report. Likewise, the Archives vitiated Mrs.
Clinton privacy interests when released the Evidence Memorandum, which, Plaintiff has
demonstrated, made public additional, grand jury and non-grand jury investigative material not
disclosed through publication the Report. 2nd Orfanedes Decl. para. Again, the
Archives fails identify any specific privacy interests Mrs. Clinton still possesses following
publication the Report and the Evidence Memorandum. contrast, the public interest disclosure the draft indictments substantial, despite
the Archives disingenuous efforts minimize that interest. Plaintiff demonstrated its
opposition and cross-motion, the public interest disclosure the drafts has least two
components, both which directly bear citizens right informed about what their
government to: (1) public interest the actions the independent counsel; and (2) public
interest the actions Mrs. Clinton first lady the United States, well her
subsequent actions United States senator, United States secretary state, and the
Democratic Party presumptive nominee for president the United States.
The Archives cannot deny the weighty public interest shining light the
independent counsel investigation political corruption and ultimate decision not prosecute then-sitting first lady the United States. See Citizens for Responsibility and Ethics Wash. U.S. Dep Justice, 746 F.3d 1082, 1092-93 (D.C. Cir. 2014). Rather, the Archives tries, but
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
fails, minimize the public interest the independent counsel investigation challenging
Plaintiff evidence about the results simple Google searches for the words Starr Report and
Hillary Clinton draft indictment. FOIA cases, courts can and often evaluate the public
interest without input from the parties. Nonetheless, the evidence presented Plaintiff the
only admissible evidence the record regarding the public interest. contrast Plaintiff
sworn evidence, the Archives submitted only bald, unsworn allegations that are not properly
before the Court summary judgment. See Fed. Civ. 56(c)(1). For this same reason, the
Archives also failed properly refute Plaintiff statement undisputed material facts. See
LCvR 7(h)(1). result, the Court may even deem Plaintiff factual allegations
admitted. Id.
The Archives attempt minimize the public interest the independent counsel
investigations the Clintons only historical nature not well taken. The Archives
own mission statement declares, Public access government records strengthens democracy
allowing Americans understand their history they can participate more effectively
their government. See Our Vision and Mission, available http://www.archives.gov/about/
info/mission.html (visited April 30, 2016). Clearly, public interest that historical nature
legitimate, valid, and important, and any attempt diminish minimize such interest,
especially agency created protect and preserve the nation history, baseless and
improper. for the public interest the actions Mrs. Clinton, the Archives does not and cannot
dispute the fact that, while serving first lady officer the United States Mrs. Clinton
The undersigned performed these same searches again April 30, 2016 and generated only 11,100,000 search
results for the words Starr Report, fewer than March 2016, but still very substantial amount. search for
the words Hillary Clinton draft indictment yielded 2,800,000 million search results, substantially more than the
earlier search.
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
was investigated for allegedly making false statements and withholding evidence from federal
investigators. The Archives also does not and cannot dispute that Mrs. Clinton subsequently
went hold two other, very important public offices, United States senator and United States
secretary state, and that she now seeks the nation highest office. all relevant times Mrs.
Clinton was public official, not private citizen, and her actions and conduct first lady,
including her actions and conduct during the course the independent counsel investigation,
clearly bear the performance that office under her leadership. They also bear the
performance the duties associated with the U.S. Senate seat she subsequently held and the
agency she subsequently led, the U.S. Department State. Accordingly, her action and conduct first lady are relevant what the government to, least was during her
tenure multiple federal offices. The fact that Mrs. Clinton now seeks further, higher office
only magnifies the public interest insofar her actions and conduct first lady including her
actions and conduct during the independent counsel investigation may shed light what the
entire Executive Branch may should Mrs. Clinton elected president.
Disclosure the draft indictments undoubtedly will assist the public determining
whether there was merit lack merit the allegations against Mrs. Clinton, whether Mrs.
Clinton was fairly unfairly investigated, and whether her tenure first lady the United
States and subsequent tenures United States senator and United States secretary state were
positive negative for the country. The Archives assertion that, seeking disclosure the
draft indictments, Plaintiff attempting imply that Mrs. Clinton guilty criminal conduct
plainly misses the mark, one could just easily conclude that Mrs. Clinton experience with
The Archives made effort respond rebut Plaintiff argument distinguishing the D.C. Circuit line
cases limiting the relevant public interest shedding light how agencies perform their statutory duties. Plaintiff
continues assert that those cases are distinguishable from the present case and that Mrs. Clinton actions and
conduct first lady are relevant what the government was to, to, may should she
elected president.
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
the criminal justice system enhances her qualifications the nation chief executive. The
draft indictments will shed light Mrs. Clinton decades federal official, her fitness for
the office she currently seeks, and what the government to. The Archives assertions the contrary are neither serious nor credible.
Segregability.
Even when agency may properly withhold responsive record under one FOIA
enumerated exemptions, nevertheless must disclose any non-exempt information that
reasonably segregable. Am. Civil Liberties Union U.S. Dep State, 878 Supp.2d 215,
225 (D.D.C. 2012) (citing U.S.C. 552(b)). The question segregability necessity
subjective and context-specific, turning upon the nature the documents and information
question. Id. (citing Mead Data Central, Inc. U.S Dep Air Force, 566 F.2d 242, 261
(D.C. Cir. 1977). Ultimately, discharge its burden before the district court, the agency must
provide reasonably detailed justification rather than conclusory statements support its claim
that the non-exempt material document not reasonably segregable. Id. For example,
agency was found satisfy its segregability obligation where
stated that had conducted page-by-page review all investigative records
contained the requested documents, and determined that each document, and
each page each document, contained information subject law enforcement
withholding exemptions. justified its inability simply redact sensitive
portions (i.e., informant names) from these documents pointing out that the
balance the information remaining the documents could still reveal the
extent the government investigation, the acts which focused, what
evidence wrongdoing aware of, the identity cooperating sources, and the
agency investigative techniques this investigation. The affidavits further
attested that release any this information could jeopardize the investigation.
For these reasons, are satisfied that portion the withheld documents may segregated and released appellant.
Juarez U.S. Dep Justice, 518 F.3d 54, (D.C. Cir. 2008).
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
The Archives readily admits that made effort conduct segregability analysis
the draft indictments. claims have followed longstanding policy not doing so:
Because draft indictment inextricably tied the grand jury process, the
development the indictment, illuminated each draft carefully refines the
argument for charging the accused individuals, provides roadmap that
process. Unlike the Evidence Memorandum, which NARA released part, draft
indictments that not result any further prosecutorial action are not capable
similar segregability without revealing the workings the Grand Jury. Again,
this has been NARA practice reaching back many years, starting with
indictments drafted the Watergate Special Prosecution Force during Watergate.
2nd Murphy Decl. para. Obviously, the Archives erred. must conduct segregability
analysis each draft indictment. after analyzing each record, the Archives determines that
portion the record reasonably segregable, must provide detailed, non-conclusory
justification for its determination. Following general policy not conducting segregability
analyses draft indictments does not satisfy FOIA. addition, the Archives assertion that, unless prosecution results, segregable material draft indictment can never released without disclosing the workings the Grand Jury non sequitur. Whether indictment has been issued has nothing with whether
segregable material draft indictment can disclosed. Disclosure depends any number
factors, including whether the draft includes segregable, non-grand jury material, whether the
grand jury material longer secret, and the form the document itself. The Archives
blanket, boilerplate assertion the contrary exactly the type generalized, conclusory claim
that insufficient satisfy agency burden under FOIA. also begs the question,
disclosure draft indictment will reveal the inner workings grand jury, why wouldn
disclosure indictment returned grand jury the same? Under the Archives analysis, prosecutor publication indictment returned grand jury would violate Rule 6(e). That
obviously not the law.
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
The Archives segregability argument suffers from least two additional flaws. First,
and with its other arguments, the Archives ignores the mountain grand jury material that
has already been made public. Both the Report and the Evidentiary Memorandum have already
disclosed the roadmap about which the Archives claims concerned. This enormous volume publicly available material must taken into account proper segregability analysis.
Second, and also demonstrated previously, the Archives reads the phrase matters
occurring before the grand jury Rule 6(e) too broadly. The D.C. Circuit warned against this
precise error. [W]e cautioned the district court about the problematic nature applying
broad definition, especially relates the strategy direction the investigation.
Sealed Case, 192 F.3d 1001 (quoting Sealed Case, 151 F.3d 1059, 1071 n.12 (D.C. Cir.
1998)). Not all statements prosecutors, which obviously includes draft indictments, are
protected from disclosure Rule 6(e). Prosecutors statements about their investigations
implicate the Rule only when they directly reveal grand jury matters. Id. 1002. Moreover,
internal deliberations prosecutors that not directly reveal grand jury proceedings are not
Rule 6(e) material. Id. 1003. Segregable material that does not directly reveal secret grand
jury matters must disclosed.
If, after conducting proper segregability analysis each draft indictment, the Archives
can identify specific grand jury material that remains secret and the disclosure which would
directly reveal grand jury matters grand jury proceedings within the meaning Rule
6(e), any such material may properly redacted from the draft. The remainder must
disclosed. Unless and until the Archives conducts proper segregability analysis each draft
and justifies its determinations with detailed, non-conculsory findings, will remain violation FOIA.
Case 1:15-cv-01740-RBW Document Filed 05/02/16 Page
III.
Conclusion.
For the foregoing reasons and the reasons set forth Plaintiff opposition and cross-
motion, the Archives motion for summary judgment should denied and summary judgment
should entered Plaintiff favor ordering the release the draft indictments.
Dated: May 2016
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
Attorneys for Plaintiff
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
EXHIBIT
Plaintiff Reply Defendant Opposition Plaintiff
Cross-Motion for Summary Judgment
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
____________________________________)
Civil Action No. 15-cv-1740 (RBW)
SECOND DECLARATION PAUL ORFANEDES Paul Orfanedes, hereby declare follows:
This second declaration the above-captioned matter. submit this second
declaration supplement March 11, 2016 declaration and provide further analysis
Chapter Volume II, Part the January 2001 Final Report the Independent Counsel Madison Guaranty Savings and Loan Association the Report and the 206-page
memorandum, dated April 22, 1998, All OIC Attorneys, from the HRC Team and bearing
the subject line Summary Evidence: Hillary Rodham Clinton and Webb Hubbell Evidence Memorandum true and correct copy Chapter the Report attached
Exhibit Plaintiff Response Defendant Statement Material Facts Not Dispute and
Statement Undisputed Material Facts Support Cross-Motion for Summary Judgment.
true and correct copy the Evidence Memorandum attached Exhibit that same
document. submitting March 11, 2016 declaration, prepared two charts identifying
the various sources information relied on, cited, and quoted the Report and the Evidence
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
Memorandum, respectively. true and correct copy the chart created for the Report
attached March 11, 2016 declaration Exhibit true and correct copy the chart
created for the Evidence Memorandum attached March 11, 2016 declaration Exhibit subsequently compared the grand jury sources information identified the
two charts determine whether the Evidence Memorandum included grand jury testimony not
included the Report. Specifically, identified those witnesses whose grand jury testimony was
included both the Report and the Evidence Memorandum ten witnesses total. (Two
witnesses, Webster Hubbell and Rick Massey, had appeared before the grand jury least two
occasions, and both the Report and the Evidence Memorandum included grand jury testimony
from these different appearances.) For each grand jury witness testimony identified both
charts, reviewed the pages the Report and the pages the Evidence Memorandum which
the witness grand jury testimony were included and noted the page numbers the witness
grand jury testimony. then prepared third chart, true and correct copy which attached
hereto Exhibit comparing the page numbers the witness grand jury testimony included both the Report and Evidence Memorandum. The page numbers each witness grand jury
testimony that are included the Evidence Memorandum, but are not included the Report are
bolded and italicized. For example, pages 12, 13, and 21-22 Mr. Joe Giroir July 18, 1996
grand jury testimony are included the Evidence Memorandum, but are not included the
Report; pages 115-16 Webster Hubbell August 22, 1996 grand jury testimony are included the Evidence Memorandum, but are not included the Report; pages 77-78, 105-06, and 114 James McDougal April 1997 grand jury testimony are included the Evidence
-2-
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
Memorandum, but are not included the Report, etc. The results analysis are set forth
fully Exhibit declare under penalty perjury that the foregoing true and correct. Executed
May..,t 2016 Washington, O.C.
.Paul iOlfatides
-3-
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
EXHIBIT
Second Declaration Paul Orfanedes
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
COMPARISON APRIL 22, 1998 SUMMARY EVIDENCE MEMORANDUM AND
JANUARY 2001 FINAL REPORT ADDITIONAL GRAND JURY MATERIAL
DISCLOSED THE EVIDENCE MEMORANDUM
Evidence Memorandum and not previously made public the Final Report, are bolded and
italicized.
Joe Giroir July 18, 1996 Grand Jury Testimony
Memo:
Report:
Sarah Handley October 31, 1995 Grand Jury Testimony
Memo:
Report:
William Henley June 18, 1996 Grand Jury Testimony
Memo:
Report:
Webster Hubbell December 19, 1995 Grand Jury Testimony
Memo:
Report:
Webster Hubbell August 22, 1996 Grand Jury Testimony
Memo:
Report:
98, and 108
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
Loretta Lynch February 1996 Grand Jury Testimony
Memo:
51-52, 53, 55-56, 66, and 73-74.
Report:
Rick Massey November 1995 Grand Jury Testimony
Memo:
Report:
Rick Massey December 1997 Grand Jury Testimony
Memo:
Report:
James McDougal April 1997 Grand Jury Testimony
Memo:
Report:
10.
Rae Ann Moles October 19, 1995 Grand Jury Testimony
Memo:
Report:
11.
Susan Thomases February 29, 1996 Grand Jury Testimony
Memo:
and 67-68.
Report:
-2-
Case 1:15-cv-01740-RBW Document 17-1 Filed 05/02/16 Page
12.
Seth Ward January 17, 1996 Grand Jury Testimony
Memo: page numbers identified, but, based the material cited (Ward
admissions all the factual predicates that make him staw[man buyer] appears relate different subject matter than the materials cited the Report.
Report:
-3-