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Judicial Watch • JW v NARA HRC indictments appeal 5366

JW v NARA HRC indictments appeal 5366

JW v NARA HRC indictments appeal 5366

Page 1: JW v NARA HRC indictments appeal 5366

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Number of Pages:16

Date Created:May 24, 2017

Date Uploaded to the Library:September 18, 2017

Tags:rose law firm, 5366, 01740, indictments, NARA, Whitewater, HRC, appeal, Hillary Clinton, clinton, filed, State Department, FBI, FOIA, united


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USCA Case #16-5366
Document #1676568
Filed: 05/24/2017
[NOT YET SCHEDULED FOR ORAL ARGUMENT] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 16-5366
_________
JUDICIAL WATCH, INC.
Plaintiff-Appellant,
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Defendant-Appellee.
__________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________
REPLY BRIEF APPELLANT JUDICIAL WATCH, INC.
__________
Paul Orfanedes
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
Dated: May 24, 2017
USCA Case #16-5366
Document #1676568
Filed: 05/24/2017
TABLE CONTENTS
TABLE AUTHORITIES ....................................................................................
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT .............................................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
CERTIFICATE SERVICE
USCA Case #16-5366
Document #1676568
Filed: 05/24/2017
TABLE AUTHORITIES
CASES
PAGE
Boehm Fed. Bureau Investigation,
948 F.Supp.2d (D.D.C. 2013) .......................................................................
Citizens for Responsibility and Ethics Washington United States
Dep Justice, 746 F.3d 1082 (D.C. Cir. 2014) ...........................................
Electronic Privacy Info. Ctr. Central Intelligence Agency,
678 F.3d 926 (D.C. Cir. 2012).........................................................................
Fund for Constitutional Gov National Archives Records Serv.,
656 F.2d 856 (D.C. Cir. 1981).........................................................................
Hodge Fed. Bureau Investigation,
703 F.3d 575 (D.C. Cir. 2012) ........................................................................
*Senate Puerto Rico United States Dep Justice,
823 F.2d 574 (D.C. Cir. 1987).........................................................................
United States Hitt,
249 F.3d 1010 (D.C. Cir. 2001).......................................................................
Rules and Statutes
Fed. Crim. 7(c)(1) ............................................................................................ Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
USCA Case #16-5366
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Filed: 05/24/2017
SUMMARY THE ARGUMENT
NARA failed prove met its burden showing that the draft indictments
are protected from disclosure under FOIA Exemptions and 7(C). NARA does
not adequately address the inconsistencies its contradictory declarations, which
initially claimed that the drafts identify actual evidence and testimony, but later
asserted that they merely reflect compilation and distillation all the
evidence. addition, NARA mischaracterization the mountain grand jury
material already made pubic affirming its justification for withholding the
drafts wholly unsupported and fails show how the drafts contain any grand
jury material that has not already been made public and cannot redacted. The
cases NARA cites also are readily distinguishable and not address how Rule
6(e) should applied when vast quantities grand jury material have been
released.
Finally, NARA attempt minimize the public interest what the
government was to, i.e. what Mrs. Clinton was during her years
First Lady and senior presidential advisor, mistaken. Disclosure the drafts
will add the public record and allow more thorough assessment the
effectiveness and wisdom appointing special prosecutors investigate high
level public officials.
USCA Case #16-5366
Document #1676568
Filed: 05/24/2017
The decision the District Court should reversed and the case remanded
with instructions that the drafts produced their entirety, except for any actual
evidence and testimony presented the grand jury that NARA proves has not been
made public.
ARGUMENT
Appellant Judicial Watch, Inc. Judicial Watch submits the following
points reply the Brief for Appellee, National Archives and Records
Administration NARA
Citing its first declaration, NARA insists that the drafts quote grand
jury testimony, identify[] specific records subpoenaed during the grand jury
process, and reflect[] names and identifying information individuals
subpoenaed intended subpoenaed testify before the grand jury.
Brief for Appellee 14; see also id. (asserting that the drafts identify actual
evidence and testimony While Judicial Watch pointed out that these assertions
are inconsistent with NARA second declaration, which only claimed that drafts
reflect compilation and distillation all the evidence (id.), the first
declaration correct, then NARA fails demonstrate why these items could not redacted from the drafts and the remainder produced Judicial Watch. Quotes,
references specific, subpoenaed records, and the names and identifying
USCA Case #16-5366
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information about specific persons the extent they have not been made public
already can redacted easily.
NARA fails convincingly address this fundamental inconsistency. the
drafts contain both actual evidence and actual testimony and also reflect
compilation and distillation the evidence presented the grand jury, then why
didn NARA say its first declaration? was only when Judicial Watch
identified the enormous amount grand jury material already made public the
Independent Counsel Final Report Final Report and Summary Evidence
Memorandum Evidence Memo and challenged NARA failure redact any
non-public evidence and testimony and produce the remainder that NARA came
with its compilation and distillation claim. obviously more difficult
withhold the drafts their entirety particular pieces evidence testimony
can identified and determination made whether the evidence testimony has
already been made public. still not clear from NARA declarations that any
such analysis was undertaken after Judicial Watch asked for the drafts. What
clear that NARA only made its compilation and distillation claim after Judicial
Watch effectively rebutted its actual evidence and testimony claim.
NARA attempt diminish the mountain grand jury material
already made public misses its mark. NARA claims that, [i]f anything, the two
documents [identified Judicial Watch] reaffirm that disclosing the drafts
USCA Case #16-5366
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would tend reveal details about the grand jury investigation that have not
previously been made public. Brief for Appellee 18. Nothing could further
from the truth. The amount grand jury material already made public the Final
Report and Evidence Memo truly extraordinary. The two documents not
reaffirm that disclosing the drafts would reveal non-public information about the
grand jury investigation. Rather, they confirm that, not only has tremendous
amount grand jury material already been made public, but NARA sparse
declarations fail satisfy its burden proving that the drafts contain any grand
jury material that has not already been made public and cannot redacted.
NARA reference Boehm Fed. Bureau Investigation, 948
F.Supp.2d (D.D.C. 2013) inapposite (perhaps that why cited passing
footnote rather than the text NARA argument). Brief for Appellee 14.
Boehm, the Court stated [t]he problem here that plaintiff has not supplied the
Court with any evidence that the information being withheld was widely publicized even disclosed the public all. Thus, there basis conclude that the
evidence withheld has become such matter public record that Exemption
should not apply. Boehm, 948 Supp.2d 27. Additionally, the Court found
that the defendant had described the grand jury material sufficiently. Id. The same
cannot said here. NARA declaration says little more than that [a]ll the
responsive records are directly related the Independent Counsel consideration
USCA Case #16-5366
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Filed: 05/24/2017 presenting indictment grand jury. 29. The fact that material
related grand jury investigation does not automatically exempt from
disclosure. See Senate Puerto Rico U.S. Dep Justice, 823 F.2d 574
(holding defendants did not supply information court must have order
intelligently make [the] judgment that information would compromise[] the
secrecy grand jury deliberations.
NARA reference Electronic Privacy Info. Ctr. Central Intelligence
Agency, 678 F.3d 926 (D.C. Cir. 2012) EPIC also misplaced, its citation Hodge Fed. Bureau Investigation, 703 F.3d 575 (D.C. Cir. 2012). EPIC
was Glomar case, not grand jury material case. There dispute here that
the drafts exist. Hodge, the death row inmate seeking records about one his
murder accomplices d[id] not contest the accuracy the FBI grand jury claim make any effort show that the information requested had already been made
public. Hodge, 703 F.3d 580. NARA other cases are readily distinguishable well.
Also mistaken NARA claim that Judicial Watch reliance the
enormous amounts material made public the Final Report and Evidence
Memo somehow proves NARA withholdings are proper. Brief for Appellee
18. The opposite the case. The material already made public only highlights the
tremendous amount investigative material both grand jury and non-grand jury
USCA Case #16-5366
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that has already been disclosed. Given that Judicial Watch seeks only limited,
identifiable set records fourteen total NARA should have gone through
each record individually, line line, and compared the Final Report and
Evidence Memo determine whether any grand jury material the record may
contain had previously been made public. Any such material could then have been
redacted and the remainder produced Judicial Watch. makes difference,
NARA claims (id. 18, n.6), that the Evidence Memo may contain redactions.
grand jury material was redacted from the Evidence Memo and not previously
made public, NARA may choose redact it. The fact that NARA reviewed the
206-page Evidence Memo determine whether contained grand jury material
and whether that material had already been made public confirms that NARA
readily capable such analysis and should have performed such analysis
with respect the fourteen drafts. Under the circumstances, NARA broad brush
claim that releasing even portions the records will release non-public grand jury
material does not satisfy its burden.
NARA claim about draft indictments offering greater insight into
grand jury investigation than independent counsel report because indictments
are crafted for the specific purpose persuading grand jury charge
individual just not so. Brief for Appellee 19. The premise the claim
incorrect. Indictments are not crafted persuade grand juries indict. They are
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crafted give defendants legally sufficient notice the charges against them.
Rule the Federal Rules Criminal Procedure and federal case law makes this
abundantly clear, Judicial Watch demonstrated its opening brief. Brief
Appellant (citing Fed.R.Crim. 7(c)(1); United States Hitt, 249 F.3d
1010, 1016 (D.C. Cir. 2001). NARA makes attempt rebut this
demonstration. cannot. Rule and numerous federal cases directly refute
NARA argument. draft indictment offers insight into prosecutor actions,
not grand jury investigation evidence grand jury considers important.
NARA claim that withholding the drafts appears consistent with
the Office the Independent Counsel view them pure speculation. Brief
for Appellee 20. NARA offers evidence about why the independent
counsel office might have put the drafts box with note referencing Rule
6(e). Id. NARA makes claim that the drafts were reviewed the time
person knowledgeable about the investigation and that determination never
release the drafts was made. NARA also makes claim that, when the drafts
were put the box, they were compared the already-published Final Report
determine they contained any previously undisclosed grand jury material.
NARA also ignores the subsequent disclosure the Evidence Memo and the huge
quantities grand jury material released that time. simply not possible
read anything meaningful into the note.
USCA Case #16-5366
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NARA claim that Mrs. Clinton retains substantial privacy
interest the draft indictments likewise fails take into account the huge amount grand jury material already made public the Final Report and Evidence
Memo. Brief for Appellee 24-25. NARA cannot claim that the public does not
already know that Mrs. Clinton was the subject criminal investigation that
draft indictments naming her defendant were prepared. These facts are already the public domain. See Fund for Constitutional Gov Nat Archives and
Records Admin., 656 F.2d 856, 864 (1981) The degree intrusion occasioned disclosure necessarily dependent upon the character the information
question. Nor Mrs. Clinton similarly situated former U.S. Congressman
Tom Delay Citizens for Responsibility and Ethics Washington U.S. Dep
Justice, 746 F.3d 1082 (D.C. Cir. 2014) CREW Particulars the
Independent Counsel investigation Mrs. Clinton, including the contents
investigative files, were made public with the publication the Final Report and
the Evidence Memo. Cf. Brief for Appellee 26. The Court reasoning
CREW does not apply. Id. Other than bare, unsubstantiated, and generic assertions privacy, NARA fails show that Mrs. Clinton continues have any
meaningful privacy interest the draft indictments. Once again, NARA has failed meet its burden proof.
USCA Case #16-5366
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Judicial Watch disputes NARA claim that there relevant public
interest learning what Mrs. Clinton was when she served First Lady
and senior presidential advisor. Mrs. Clinton then went occupy two other,
high level government positions, U.S. Senator and U.S. Secretary State. She
later became the 2016 democratic nominee for President the United States.
Judicial Watch aware the Court cases holding that, when privacy interests
are balanced against the public interest, the public interest side the scale
generally focuses the conduct government agencies. This case different.
Mrs. Clinton cannot compared private citizen, ordinary government
employee, even Congressman Delay. She held numerous high level
government positions and sought the nation highest office. result, what the
government was and what Mrs. Clinton was cannot neatly
separated. The public interest knowing what the government was
undoubtedly includes knowing what Mrs. Clinton was during her years
the White House. Given the nature the records draft indictments sitting
First Lady and senior presidential advisor for alleged false statements federal
investigators and withholding evidence the records also may help the public
evaluate what the government was during Mrs. Clinton time the U.S.
Senate and the State Department. Allegations that high-level official made
false statements federal investigators and withheld evidence bear the
USCA Case #16-5366
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official honesty, integrity, and trustworthiness and therefore bear public trust
and confidence government.
NARA acknowledges that the Independent Counsel investigation
was the subject considerable public interest. Brief for Appellee 27. NARA
wrong, however, when asserts that the amount information about the
Independent Counsel investigation already made public somehow diminishes the
importance making the draft indictments public. The public record the
Independent Counsel investigation obviously not complete. Disclosing the
drafts will add the public record, affording scholars, researchers, journalists, and
the general public greater access information about the investigation. will
allow for more thorough, informed assessment not only this particular
Independent Counsel, but also the effectiveness and wisdom appointing special
prosecutors investigate high level public officials generally. NARA claim that
disclosure will not advance the public interest plainly wrong.
USCA Case #16-5366
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CONCLUSION
For the reasons set forth Judicial Watch opening brief and the additional
reasons set forth above, the District Court should reversed, and the case should remanded for further proceedings.
Dated: May 24, 2017
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Paul Orfanedes
Paul Orfanedes
/s/ Lauren Burke
Lauren Burke
425 Third Street, S.W., Suite 800
Washington, 20024
Tel: (202) 646-5172
Email: porfanedes@judicialwatch.org
lburke@judicialwatch.org
Counsel for Plaintiff-Appellant
USCA Case #16-5366
Document #1676568
Filed: 05/24/2017
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 2700 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ Lauren Burke
USCA Case #16-5366
Document #1676568
Filed: 05/24/2017
CERTIFICATE SERVICE hereby certify that May 24, 2017, filed via the CM/ECF system the
foregoing REPLY BRIEF APPELLANT JUDICIAL WATCH, INC. with
the Clerk the Court. Participants the case are registered CM/ECF users and
service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court
via hand delivery.
/s/ Lauren Burke