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Case 1:17-cv-01167-JEB Document Filed 12/13/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
CABLE NEWS NETWORK, INC.
Plaintiff,
FEDERAL BUREAU
INVESTIGATION,
Defendant.
____________________________________)
GANNETT SATELLITE INFORMATION
NETWORK, LLC, al.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-01167 (JEB)
Civil Action No. 17-01175 (JEB)
Civil Action No. 17-01189 (JEB)
Case 1:17-cv-01167-JEB Document Filed 12/13/17 Page
FREEDOM WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
THE DAILY CALLER NEWS
FOUNDATION,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1212 (JEB)
Civil Action No. 17-1830 (JEB)
PLAINTIFF JUDICIAL WATCH REPLY DEFENDANTS OPPOSITION PLAINTIFF CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc. respectfully submits this reply Defendants opposition
Plaintiffs cross-motions for summary judgment:
MEMORANDUM POINTS AND AUTHORITIES
Defendant acknowledges that the February Memo the only record Judicial
Watch seeks was not created for law enforcement purpose. Def Opp. and 10. Its claim
that the memo was later compiled for law enforcement purposes ignores several undisputed facts.
First and foremost, Judicial Watch did not ask the alleged compiler Special Counsel Mueller
for the memo. Judicial Watch asked the originating agency and primary custodian the FBI
for the memo. Special Counsel Mueller had not even been appointed when Judicial Watch
served its FOIA request the FBI. addition, Defendant readily admits that the memo was
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Case 1:17-cv-01167-JEB Document Filed 12/13/17 Page
found former Director Comey files, not Special Counsel Mueller files. Def Opp.
Defendant does not even claim have searched Special Counsel Mueller investigatory files. immaterial whether Special Counsel Mueller may have obtained copy the
February Memo after Plaintiff requested the memo from the FBI. claim made that the
FBI compiled the memo for law enforcement purposes. anything, Defendant voluntary
disclosure that Special Counsel Mueller subsequently obtained copy the memo undermines
Defendant Exemption 7(A) claim. the D.C. Circuit recently found similar situation
the context alleged grand jury material withheld under Exemption
The government argues that documents subpoenaed grand jury are more
revealing than documents merely presented grand jury, because they reveal
the direction the grand jury investigation. the documents would reveal
the requester that they had been subpoenaed, would agree. But subpoenaed
documents would not necessarily reveal connection grand jury.
possible that, had the government released the documents without invoking
Exemption Labow would never have known that any the documents had
been subpoenaed grand jury course, the documents are now
belatedly released, might apparent that they had been subpoenaed grand
jury given that the potential connection with grand jury now known. That
fact, however, should not bar disclosure.
Labow U.S. Dep Justice, 831 F.3d 523, 529-30 (D.C. Cir. 2016). Defendant could have
produced the memo Judicial Watch without any reference the Special Counsel his files. had, Judicial Watch would not have known any potential connection between the memo
and Special Counsel Mueller investigation.
Similarly, the attorney-client privilege does not authorize the withholding
record client files simply because the client gives copy the record his her
attorney. revealing that copy the record was turned over the client attorney, the
client reveals the very thing the privilege intended protect. Here, Defendant botched
assertion Exemption 7(A) that has created connection between the February Memo and
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Case 1:17-cv-01167-JEB Document Filed 12/13/17 Page
Special Counsel Mueller investigation, not anything inherent the memo creation, purpose, location former Director Comey non-investigatory files.
Judicial Watch cited Labow its cross-motion. Mem. 12, n.2. Defendant
ignored it. The cases cited Defendant not address records requested from the noninvestigatory files their creators original custodians. They only address requests for records the investigatory files law enforcement officials. They not support Defendant
argument.
Defendant categorical approach its claims exemptions also not supported the case law. Defendant identifies nothing about the memos showing they are the type
records which the balance characteristically tips one direction. Citizens for
Responsibility Ethics Washington U.S. Dep Justice, 746 F.3d 1082, 1095 (D.C. Cir.
2014). The individual memos themselves are not single type. Former Director Comey
described some the memos, including the February Memo, somewhat formal documents
memorializing his in-person meetings with the President. Stmt. 1-2. described others
nothing more than emails chief staff others some the brief phone calls. Tr.
93. The February Memo unique given that former Director Comey chose leak the memo the media, then described and quoted length during his Select Committee testimony.
Obviously, greater showing harm required when record has been described and quoted
extensively public, the cat already out the bag. The February Memo cannot
grouped together the same category the other memos, some which former Director
Comey referenced only passing. failing properly invoke categorical approach and
relying broad brush assertions harm that not differentiate between memos, Defendant
fails prove that disclosure the February Memo particular will harm the investigation.
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Case 1:17-cv-01167-JEB Document Filed 12/13/17 Page
Defendant does nothing rebut Judicial Watch showing that, because former
Director Comey testified extensively about the February Memo, its disclosure will not
harm the Special Counsel investigation. Defendant asserts that the precise contents all the
Comey Memos have not yet been revealed. Def Opp. 15. But that not true with respect
the February Memo. Former Director Comey testified that need[ed] remember every
single word that spoken and was quoting the President exact words him and his
carefully chosen words back the President. Tr. 40, 49, and 55. Obviously, former Director
Comey would not have testified the U.S. Senate about statements and material believed
were insignificant unimportant. testified about and quoted what believed was most
significant and most important about his February 14, 2017 meeting with the President.
Defendant does not claim former Director Comey testimony left out anything substantial
significant about the February Memo particular. irrelevant, least Judicial Watch
request for the February Memo, that former Director Comey did not testify extensively
about the contents the other memos.
Finally, Defendant does nothing dispel the conclusion that former Director
Comey Select Committee testimony was authorized Defendant least coordinated with
Defendant some fashion. also refuses state why, former Director Comey testimony
was not authorized coordinated, has not taken steps remedy that testimony, along with his
removal the memo from the FBI and leaking the media. Instead, Defendant coyly asserts
that such matters are committed the discretion the government. Def Opp. 17-18.
failing state affirmatively whether former Director Comey testimony was authorized
coordinated, Defendant only further undermines its claim that disclosure the February
Memo will somehow harm Special Counsel Mueller investigation.
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Case 1:17-cv-01167-JEB Document Filed 12/13/17 Page
Dated: December 13, 2017
Respectfully submitted,
/s/ Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
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