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Judicial Watch • JW v NARA HRC indictments opening appeal brief 5366

JW v NARA HRC indictments opening appeal brief 5366

JW v NARA HRC indictments opening appeal brief 5366

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Category:Clintons

Number of Pages:48

Date Created:March 29, 2017

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USCA Case #16-5366
Document #1668457
Filed: 03/29/2017
[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
__________
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
USCA Case #16-5366
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CERTIFICATE PARTIES, RULINGS,
AND RELATED CASES
Pursuant Cir. 28(a)(1), counsel provides the following information parties, rulings, and related cases:
(A)
Parties and Amici
The following parties, interveners, and amici curiae appeared, sought
appear, below:
Plaintiff:
Judicial Watch, Inc.
Defendant:
National Archives and Records Administration
The following parties, interveners, and amici curiae are before this Court
appeal:
Plaintiff-Appellant:
Judicial Watch, Inc.
Defendant-Appellee:
National Archives and Records Administration
(B)
Ruling under Review
The ruling under review the Memorandum Opinion and Order the
United States District Court for the District Columbia (Walton, J.) issued
October 2016. The ruling can found Joint Appendix pages 387-416.
also reported 2016 U.S. Dist. LEXIS 137314 (D.D.C. Oct. 2016).
USCA Case #16-5366
(C)
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Related Cases
Judicial Watch, Inc. does not believe there are any cases related this
matter within the meaning Local 28(a)(1)(C).
/s/ Lauren Burke
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TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ....................................................................................
GLOSSARY ABBREVIATIONS ......................................................................vi
JURISDICTIONAL STATEMENT ..........................................................................
STATEMENT ISSUES PRESENTED................................................................
STATUTES AND RULES ........................................................................................
STATEMENT THE CASE ..................................................................................
STATEMENT FACTS ........................................................................................
SUMMARY THE ARGUMENT ......................................................................
ARGUMENT ...........................................................................................................
Standard Review .............................................................................
II.
Exemption 3/Rule 6(e) ........................................................................
III.
Personal Privacy Public Interest ......................................................
IV.
Segregability ........................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
CERTIFICATE SERVICE
USCA Case #16-5366
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TABLE AUTHORITIES
Cases
Allen Central Intelligence Agency,
636 F.2d 1287 (D.C. Cir. 1980).....................................................................
Am. Civil Liberties Union United States Dep State,
878 Supp.2d 215 (D.D.C. 2012)................................................................
Ass Am. Physicians and Surgeons, Inc. Clinton,
997 F.3d 898 (D.C. Cir. 1993).......................................................................
Beck Dep Justice,
997 F.2d 1489 (D.C. Cir. 1993).....................................................................
*Citizens for Responsibility and Ethics Washington United States
Dep Justice, 746 F.3d 1082 (D.C. Cir. 2014) .................15, 23, 29, 30,
Dep the Air Force Rose,
435 U.S. 351 (1976) ...................................................................................... North, F.3d 1234 (D.C. Cir. 1994)....................................................................... Craig,
131 F.3d (2d Cir. 1997) ............................................................................ Grand Jury Investigation,
610 F.2d 202 (5th Cir. 1980) ......................................................................... Grand Jury Subpoena,
920 F.2d 235 (4th Cir. 1990) ......................................................................... Sealed Case,
151 F.3d 1059 (D.C. Cir. 1998)..................................................................... Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
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*In Sealed Case, 192 F.3d 995
(D.C. Cir. 1999) .................................................. 13, 14, 15, 16, 19, 21, 23,
Juarez United States Dep Justice,
518 F.3d (D.C. Cir. 2008) .........................................................................
Kimberlin Dep Justice,
139 F.3d 944 (D.C. Cir. 1998).................................................................26,
Larson Dep State,
565 F.3d 857 (D.D.C. 2009) ..........................................................................
Lopez Dep Justice,
393 F.3d 1345 (D.C. Cir. 2005).....................................................................
Mead Data Central, Inc. United States Dep Air Force,
566 F.2d 242 (D.C. Cir. 1977).......................................................................
Nat Archives and Records Admin Favish,
541 U.S. 157 (2004).......................................................................................
National Ass Retired Fed Employees Horner,
879 F.2d 873 (D.C. Cir. 1989).......................................................................
Sample Bureau Prisons,
466 F.3d 1086 (D.C. Cir. 2006).....................................................................
Securities and Exchange Comm Dresser Indus., Inc.,
628 F.2d 1369 (D.C. Cir. 1980).....................................................................
Senate Puerto Rico United States Dep Justice,
823 F.2d 574 (D.C. Cir. 1987).......................................................................
Sussman United States Marshals Serv.,
494 F.3d 1106 (D.C. Cir. 2007)...............................................................13, Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
iii
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Trans-Pacific Policing Agreement United States Customs Serv.,
177 F.3d 1022 (D.C. Cir. 1999).....................................................................
United States Hitt,
249 F.3d 1010 (D.C. Cir. 2001).....................................................................
United States Dep Justice Reporters Comm. for Freedom the Press,
489 U.S. 749 (1989).......................................................................................
Rules and Statutes
Fed. App. 4(a)(1)(B) .........................................................................................
Fed. Crim. 6(e) ..................................................................................................
*Fed. Crim. 6(e)(2) ...........................................................................................
Fed. Crim. 6(e)(2)(B) ..................................................................................
Fed. Crim. 7(c)(1) .......................................................................................... U.S.C. 552(a)(4)(B) ........................................................................................... U.S.C. 552(b) ................................................................................................. U.S.C. 552(b)(3)............................................................................................. U.S.C. 552(b)(7)(C) ........................................................................................... U.S.C. 594(h) ..................................................................................................... U.S.C. 594(h)(1)................................................................................................. U.S.C. 594(h)(2)...........................................................................................
USCA Case #16-5366
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Filed: 03/29/2017 U.S.C. 1291 ........................................................................................................ U.S.C. 1331 ........................................................................................................
Miscellaneous
Miller, S.A., Schumer demands Sessions resign, seeks special prosecutor
for Russia investigation, Washington Times (March 2017) .................... Authorities upon which Plaintiff-Appellant chiefly relies are marked with
Asterisks.
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GLOSSARY ABBREVIATIONS
FOIA
Freedom Information Act
Joint Appendix
NARA
National Archives and Records Administration
OIC
Office Independent Counsel
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JURISDICTIONAL STATEMENT
The U.S. District Court for the District Columbia (the District Court
had jurisdiction pursuant U.S.C. 1331, because this FOIA action arises
under federal law. Jurisdiction over this appeal proper under U.S.C. 1291, the appeal taken from final judgment. The appeal timely under Rule
4(a)(1)(B) the Federal Rules Appellate Procedure under because the District
Court entered its final judgment October 2016 and the notice appeal was
filed December 2016. 387 and 417.
STATEMENT ISSUES PRESENTED
Whether the NARA properly withheld the draft indictments under
Rule 6(e) the Federal Rules Criminal Procedure and FOIA Exemption
Whether NARA properly withheld the draft indictments under FOIA
Exemptions and 7(C).
STATUTES AND RULES U.S.C. 552(b):
(b)
This section does not apply matters that are
(3)
specifically exempted from disclosure statute
(other than section 552b this title), that
statute
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(A)
(i)
requires that the matters withheld from the
public such manner leave discretion the issue;
(ii)
establishes particular criteria for withholding
refers particular types matters withheld;
and
(B) enacted after the date enactment the OPEN
FOIA Act 2009, specifically cites this
paragraph.
(6)
personnel and medical files and similar files the
disclosure which would constitute clearly
unwarranted invasion personal privacy;
(7)
records information compiled for law
enforcement purposes, but only the extent that
the production such law enforcement records
information (A) could reasonably expected
interfere with enforcement proceedings, (B) would
deprive person right fair trial
impartial adjudication, (C) could reasonably
expected constitute unwarranted invasion
personal privacy, (D) could reasonably
expected disclose the identity confidential
source, including State, local, foreign agency authority any private institution which
furnished information confidential basis, and, the case record information compiled
criminal law enforcement authority the course criminal investigation agency
conducting lawful national security intelligence
investigation, information furnished
confidential source, (E) would disclose techniques
and procedures for law enforcement investigations
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law enforcement investigations prosecutions
such disclosure could reasonably expected
risk circumvention the law, (F) could
reasonably expected endanger the life
physical safety any individual.
Fed. Crim. 6(e)(2):
(2)
Secrecy.
(A) obligation secrecy may imposed any
person except accordance with Rule 6(e)(2)(B).
(B)
Unless these rules provide otherwise, the following
persons must not disclose matter occurring
before the grand jury:
(i) grand juror;
(ii) interpreter;
(iii) court reporter;
(iv) operator recording device;
(v) person who transcribes recorded
testimony;
(vi) attorney for the government;
(vii) person whom disclosure made under
Rule 6(e)(3)(A)(ii) (iii).
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STATEMENT THE CASE issue this appeal draft indictment Hillary Rodham Clinton.
Several versions the draft were prepared OIC Deputy Independent Counsel
Hickman Ewing, Jr. between 1996 and 1998 and concern false statements allegedly
made Clinton federal investigators and evidence allegedly withheld
Clinton while she was First Lady the United States. Various versions the
draft, portions thereof, have been NARA possession, custody, and control
since March 2004. Judicial Watch, Inc. asked NARA for the records under FOIA March 2015. NARA refuses produce them, citing grand jury secrecy and
Clinton personal privacy.
Because enormous amount grand jury and other information from the
independent counsel investigation Clinton has already been made public,
including January 2001 Final Report the Independent Counsel and 206page Summary Evidence Memorandum detailing the potential charges against
Clinton, there secrecy privacy left protect. NARA boilerplate
assertions the contrary lack any merit, especially given that the purpose
indictment not present even summarize evidence, but only inform
defendant the nature the charges.
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STATEMENT FACTS January 1994, U.S. Attorney General Janet Reno appointed
independent counsel investigate allegations criminal activity for defunct
Arkansas thrift institution, the Madison Guaranty Savings Loan Association Madison Guaranty See, e.g., and 71-157. Among other matters, the
independent counsel was charged with investigating Arkansas real estate
venture, known the Whitewater Development Company, Inc., which Clinton
and her husband, then-Arkansas Governor Bill Clinton, had partnered with
Madison Guaranty owners Jim and Susan McDougal. Id. The investigations that
followed were among the most controversial, high profile, and politically charged U.S. history and led directly President Clinton 1998 impeachment. Custody all records compiled independent counsel during the investigations were
transferred NARA March 2004. 27. law, the independent counsel was required issue final reports detailing
its work and its findings. 53; see U.S.C. 594(h)(1). least five final
reports ultimately were prepared the independent counsel concerning various
aspects its investigations. 53. Beginning 2000 and continuing into 2002,
this Court approved the reports for publication.1 Id. Each report contains
Title 28, Section 594(h) the United States Code not only authorized the
D.C. Circuit order the reports made public, but also authorized the Court
make such orders are appropriate protect the rights the individuals named
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enormous quantities investigative materials, including grand jury testimony.
53-54. Chapter January 2001 Final Report, entitled Mrs. Clinton
Madison Guaranty Representation, addresses Clinton alleged false statements
prosecutors and alleged withholding evidence. and 71-157. 2014, Plaintiff submitted FOIA request NARA seeking access
binder independent counsel materials concerning the potential charges against
Clinton. 55. The materials had been referenced 2011 book. Id.
response, NARA produced 246 pages records response, including 206-page
memorandum, dated April 22, 1998, All OIC Attorneys, from the HRC
Team and bearing the line Summary Evidence: Hillary Rodham Clinton and
Webb Hubbell. Id. 55-56. The memorandum was extremely detailed and
largely unredacted. Id. 56-57.
The fact that the independent counsel had prepared draft indictment
Clinton has been public for many years. Plf Mem. PA Opp. Def
Motion for Summary Judgment and Support Plf Cross-Motion for Summary
Judgment (Dkt. Entry No. 12) 6-7. March 2015, Plaintiff submitted
FOIA request NARA for the draft indictment. 57. Plaintiff request
specifically sought: [the] report. U.S.C. 594(h)(2). Given that the D.C. Circuit chose make
the reports public, fair conclude that already weighed the privacy interests stake and ruled favor disclosure.
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All versions indictments against Hillary Rodham Clinton, including
but not limited Versions and box 2250 the Hickman
Ewing Attorney Files, the HRC/___ Draft Indictment box 2256 the Hickman Ewing Attorney Files, and all versions written
Deputy Independent Counsel Hickman Ewing, Jr. prior September 1996.
Id..
NARA located versions draft indictment Clinton, one draft
indictment without caption listing overt acts, and one record characterized
scraps draft indictment with caption. 35. Multiple copies some
drafts were located. Id. One only pages long. Id. Another pages long.
Id. NARA advised Plaintiff was withholding all responsive records full, citing
Exemption 7(C). 42-43. Plaintiff took administrative appeal, then filed suit
when NARA did not respond the appeal. 10, and 24-25. summary judgment, NARA argued that was properly withholding the
various versions the draft indictment under FOIA Exemptions and 7(C). 387-416. submitted declaration containing the following, boilerplate
assertions support its Exemption argument:
Several the drafts apparently are accompanied memoranda, fax cover
pages, and notes. 35. NARA has not differentiated between allegedly exempt
material the draft indictments and allegedly exempt material the memoranda,
fax cover pages, and notes. Because Plaintiff only requested the draft indictments,
the drafts should not withheld from Plaintiff the only basis for withholding
particular draft allegedly exempt material one these other, non-responsive
records.
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All the responsive documents are directly related the Independent
Counsel consideration presenting indictment grand jury.
The material collectively reflects names and identifying information individuals subpoenaed intended subpoenaed testify
before the grand jury, well information identifying specific
records subpoenaed during the grand jury process. They reflect and
quote grand jury testimony, and reveal the inner workings and
direction the grand jury. Disclosure would violate the secrecy
the grand jury proceedings disclosing the inner workings the
federal grand jury that was tasked with considering these matters.
Similarly, the consideration possible witnesses before the grand
jury, and internal memoranda and notes about the strategy and
considerations regarding possible indictments reveal the direction
the grand jury investigation. Accordingly, all the documents have
been properly withheld full pursuant Exemption (b)(3). 29. The portion the declaration that addressed NARA Exemption and
7(C) withholdings was equally conclusory:
Despite the role that Mrs. Clinton occupied the First Lady during
President Clinton administration, Mrs. Clinton maintains strong
privacy interest not having information about her from the files
the Independent Counsel disclosed. uncharged person Hillary
Rodham Clinton retains significant interest her personal privacy
despite any status public figure. 32. The declaration does not state that NARA conducted line-by-line
comparisons the January 2001 Final Report, the 206-page Summary
Evidence memorandum, and the various versions the draft indictment
determine whether the drafts contained any grand jury other private information
that had not already been made public. fact, the declaration made mention
either the January 2001 Final Report the 206-page Summary Evidence
memorandum all.
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Filed: 03/29/2017 response, Plaintiff submitted both the January 2001 Final Report and
the 206-page Summary Evidence and declaration providing detailed
analysis both documents. 53-368. Plaintiff declaration and accompanying
documents demonstrated that enormous quantities grand jury and non-grand
jury information had been made public through the release the two documents.
Id. With respect the January 2001 Final Report, Plaintiff declaration
demonstrated that Chapter the report cites, references, and quotes grand jury
testimony from least grand jury appearances witnesses between 1995
and 1998. 54-55. also cites, references, and quotes, some cases
extensively, from many different, non-grand jury sources information,
not including numerous individual documents, gathered from various
investigations.3 Id. With respect the 206-page Summary Evidence,
Plaintiff declaration demonstrated that the memorandum cites, references, and
quotes testimony from least grand jury appearances some witnesses
between 1995 and 1998, including witnesses not referenced Chapter the
January 2001 Final Report. Id. 56. The memorandum also cites, references, and
quotes from great many other sources, including many separate FBI
302s. Id. Finally, Plaintiff declaration also presented evidence the substantial,
Plaintiff also submitted second declaration reply NARA opposition Plaintiff cross-motion for summary judgment. 378-85. Plaintiff second
declaration provides further analysis Chapter Id.
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public interest both the independent counsel investigation the Clintons the
Starr Report and the draft indictment. 57. reply, NARA submitted second declaration that appeared back away
from any claim that the various versions the draft indictment identify individual
witnesses subpoenaed documents quote from witnesses testimony directly.
Instead, NARA second declaration described the draft indictments
compilation and distillation 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. 372.
NARA second declaration also described broad terms process
which NARA purportedly processed the 206-page Summary Evidence
memorandum for release 2005 years before released the memorandum
Plaintiff and years before Plaintiff requested the draft indictments: response 2005 FOIA request (not from Plaintiff) for access
memorandum dated April 22, 1998 from HRC Team All OIC
Attorneys Evidence Memorandum NARA examined that
document and compared the publicly released Final Report
the Independent Counsel, Madison Guaranty Savings and Loan
Association January 2001 Final Report When NARA
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examined the Evidence Memorandum for possible release response that 2005 FOIA request, understood that may contain nongrand jury material. Our examination, which included analysis
the factual and stylistic presentment both documents, enabled
draw important distinctions between information the Evidence
Memorandum that had already been released the public the Final
Report, and that information the Evidence Memorandum that was
considered grand jury information and should continue withheld. 371. NARA claimed that followed the same approach when responded
Plaintiff March 2015 FOIA request, but nowhere explained what that means.
Id. did not identify describe what this same approach was. did not
describe what specific analysis effort, any, undertook response
Plaintiff 2015 request compare various versions the draft indictment the
January 2001 Final Report and the 206-page Summary Evidence. also
did not identify who, anyone, undertook this analysis effort, when was
undertaken. NARA did not even say how purported know about the
approach took response the third-party request years earlier. merely
asserted that followed the same approach and took the final report and the
memorandum into account. October 2016, the District Court granted NARA motion for
summary judgment and denied Judicial Watch cross-motion. 386-416. This
appeal followed. 417.
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SUMMARY THE ARGUMENT
NARA fails meet its burden showing that the various versions the
draft indictment are exempt from disclosure under FOIA Exemptions and
7(C). NARA declarations merely state broad, generic terms that the records
are subject grand jury secrecy protection under Rule 6(e) the Federal Rules
Criminal Procedure and that Clinton has privacy interest the contents the
drafts. NARA provides specific description the information contained the
drafts nor explains why the drafts contents warrant continued protection grand
material. contrast, Plaintiff identified enormous amount information,
including grand jury material already published official reports and other
government records about OIC investigation Clinton conduct First Lady
and high level, high profile presidential advisor. The vague, generalized,
conclusory assertions made NARA supporting declarations not satisfy
NARA burden. Therefore, its Exemption claim fails.
NARA Exemptions and 7(C) claims fail because NARA has pointed specific, personal privacy interest Clinton might have the drafts. Moreover,
any such interest has been extinguished previous disclosure the grand jury
and other investigative materials identified Plaintiff. Disclosure the drafts
will shed light both Clinton conduct during her tenure public official and
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OIC investigation Clinton. The public interest disclosure falls well within
the purposes and objectives FOIA and easily outweighs any unidentified privacy
interest Clinton might have.
NARA withholding the records unlawful under FOIA, and the records
must produced Plaintiff.
ARGUMENT
Standard Review.
District court decisions FOIA cases are reviewed novo. Sussman
United States Marshals Service, 494 F.3d 1106, 1111-12 (D.C. Cir. 2007) (citing
Sample Bureau Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006)). FOIA
exemptions are narrowly construed, and the burden the agency sustain
its action. Dep the Air Force Rose, 425 U.S. 352, 361 (1976); U.S.C.
552(a)(4)(B).
II.
Exemption 3/Rule 6(e)
Exemption authorizes the withholding matters specifically exempted
from disclosure statute. U.S.C. 552(b)(3). There dispute that
Exemption includes material covered Rule 6(e).
The purpose Rule 6(e) preserve secrecy. Information widely known not secret. Sealed Case, 192 F.3d 995, 1004 (D.C. Cir. 1999) (quoting North, F.3d 1234, 1245 (D.C. Cir. 1994)). The extent which the grand
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jury material particular case has been made public clearly relevant because
even partial previous disclosure often undercuts many the reasons for secrecy.
Id. (quoting Craig, 131 F.3d 99, 107 (2d Cir. 1997)).
NARA has failed satisfy its burden proving that Rule 6(e) applies.
Even Rule 6(e) may have applied one time, [t]here must come time
when information sufficiently widely known that has lost its character Rule
6(e) material. Sealed Case, 192 F.3d 1004 (quoting North, F.3d
1234, 1245 (D.C. Cir. 1994)).
NARA required provide reasonable specificity meet its burden
establishing that FOIA exemption applies. Larson Dep State, 565 F.3d
857, 862 (D.D.C. 2009). NARA supporting declarations not provide
sufficient information make such determination. See Senate Puerto Rico
United States Dep Justice, 823 F.2d 574 (D.C. Cir. 1987); Lopez Dep
Justice, 393 F.3d 1345 (D.C. Cir. 2005). The Murphy declarations fail give
reviewing court reasonable basis evaluate NARA asserted 6(e) privilege
non-disclosure under FOIA Exemption
Plaintiff identified mountain grand jury material that has already been
made public. Chapter the January 2001 Final Report, published with this
Court approval, cites to, references, quotes testimony from least grand
jury appearances witnesses between 1995 and 1998. 54-55. The 206-
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page Summary Evidence disclosed even more grand jury information. 56.
Although not exhaustive count, cites to, references, quotes testimony from least grand jury appearances some witnesses between 1995 and 1998,
including witnesses not referenced the relevant section the January 2001
Final Report.4 Id. Given the enormous quantity grand jury material already
the public domain, NARA needed more than rely generic assertions about
grand jury secrecy. needed show what grand jury secrecy was left protect
and why previous disclosures did not undercut any remaining reason for secrecy. Sealed Case, 192 F.3d 1004.
NARA declarations are too vague, generalized, and conclusory satisfy
this burden. They merely repeat language taken out context from case law
applying Rule 6(e). Compare with Citizens for Responsibility and Ethics
Washington United States Dep Justice, 746 F.3d 1082, 1100 (D.C. Cir.
2014) CREW Allen Central Intelligence Agency, 636 F.2d 1287, 1298 (D.C.
Cir. 1980) Where the agency affidavits merely parrot the language the statute
and are drawn conclusory terms, the court responsibility conduct novo
review frustrated. NARA broad brush claims that the materials reflect
Neither this total nor the total for Volume II, Part Chapter the
January 2001 Final Report includes the voluminous documentary evidence cited the Summary Evidence the report. not possible discern from the
summary the report whether this evidence was ever presented considered the grand jury.
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and reveal the inner workings and direction the grand jury and that their
[d]isclosure would violate the secrecy the grand jury disclosing [its] inner
workings are the same bare statements the Court found problematic
Sealed Case. 192 F.3d 1001 [W]e cautioned the district court about the
problematic nature applying broad definition, especially relates the
strategy direction the investigation. (internal quotation omitted). addition failing meet this burden, NARA claim that the various
versions the draft indictments collectively reflect names and identifying
information witnesses and records subpoenaed the grand jury represent
compilation and distillation the evidence misses its mark. The purpose
indictment identify the essential facts constituting the offense charged and
the official customary citation the statute, rule, regulation, other provision law that the defendant alleged have violated. Fed. Crim. 7(c)(1).
inform[s] the defendant the nature the accusation against him and
enable[s] him plead acquittal conviction bar future prosecutions for
the same offense. United States Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001)
(citations omitted). The individual who prepared the various versions the draft
indictment, Deputy Independent Counsel Hickman Ewing, was experienced
prosecutor. would have known the purpose indictment and the
requirements Rule also would have known the requirements Rule 6(e).
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The notion that Ewing would have drafted indictment that exceeded the
requirements Rule and, ultimately returned the grand jury, violated his
Rule 6(e) obligations revealing the inner workings the grand jury cannot
correct. contrast, the purpose the 206-page evidentiary summary was
precisely that summarize the grand jury and non-grand jury evidence gathered the prosecutors investigation for purposes determining whether bring
charges against Clinton. disclose the summary, even redacted form, but
withhold the various versions the draft indictment their entirety because they
collectively reflect grand jury material both entirely upside down and
counterintuitive.
Yet that exactly what NARA has done. its initial submission
summary judgment, NARA relied boilerplate invocation Rule 6(e)
support its withholding the drafts their entirety. NARA declared, The
material collectively reflects names and identifying information individuals
subpoenaed intended subpoenaed testify before the grand jury,
well information identifying specific records subpoenaed during the grand jury
process. 29. Nowhere does the declaration describe what meant
collectively reflect how names, identifying information, and records are
collectively reflect[ed] the material. The declaration continues, They
reflect and quote grand jury testimony, and reveal the inner workings and direction
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Filed: 03/29/2017 the grand jury. Id. does not explain how the drafts reflect grand jury
testimony, or, the extent the drafts contain names witnesses identifying
information about witnesses who testified before the grand jury and those
witnesses identities testimony have not already been made public, any such
information quotations could not redacted. The remainder the paragraph
did not provide any additional information about the material purportedly
contained the drafts, but instead states only conclusions.
When Plaintiff highlighted the enormous quantities grand jury and other
investigatory materials already made public the January 2001 Final Report
and 206-page Summary Evidence and the other shortcomings the
declaration, NARA changed tack. backed away from its earlier claim that the
drafts collectively reflect the names and identifying information about individual
witnesses subpoenaed documents quoted from witnesses testimony. Instead,
NARA submitted second declaration which claimed that the draft
indictments were compilation and distillation all the evidence, presumably
including both grand jury and non-grand jury material. 372.
Claiming that record specifically identifies individual grand jury witnesses subpoenaed documents quotes from grand jury testimony fundamentally
different from claiming that the same record compilation and distillation
all the evidence gathered during investigation. NARA apparent switch only
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raised additional questions. 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, how the draft indictments differ substance from final indictment and
why would publication any final indictment not violate Rule 6(e)?
The argument NARA seems make is: because draft indictments are
related grand jury investigation, their disclosure will reveal grand jury
information subject secrecy protection 6(e). However, the Court
Sealed Case noted, have never read Rule 6(e) require that veil secrecy drawn over all matters occurring the world that happen investigated grand jury. 192 F.3d 1001-02 (quoting Securities and Exchange Comm
Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)). Moreover,
[i]nformation produced criminal investigations paralleling grand jury
investigations does not constitute matters occurring before the grand jury the
parallel investigation was truly independent the grand jury proceedings. Id.
1002 (quoting Grand Jury Subpoena, 920 F.2d 235, 242 (4th Cir. 1990)).
The disclosure information obtained from source independent the grand
jury proceedings, such prior government investigation, does not violate Rule
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6(e). Id. (quoting Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir.
1980)). And, top these more general principles the overarching principle
referenced above that, the extent grand jury material particular case made
public, obviates the reasons for further secrecy. Id. 1004. NARA has not met
its burden here.
While NARA also asserts its second declaration that none the drafts
that reviewed contained information that determined had been obtained
separate from the grand jury process, does not explain how made this
determination. 372. NARA also did not try differentiate between the grand
jury investigation, the independent counsel investigations, and regulatory and
congressional investigations when made blanket claims that the draft indictments
represent compilation and distillation all the evidence. Id.
Equally unavailing NARA curious claim about its 10-year old
processing the 206-page Summary Evidence. While NARA claims have
compared the January 2001 Final Report the evidence memorandum when
processed the memorandum for release response 2005 FOIA request from
third party, makes claim have done the same comparison the various
versions the draft indictment. 371. proper comparison would have
entailed line-by-line review the report, the evidence memorandum, and the
drafts see what identifiable grand jury material the drafts, any, had been
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made public either the report the evidence memorandum. NARA makes
claim have done such comparison. merely asserts that follow the same
approach and took into account the final report and evidence memorandum.
371. provides explanation what this means how the comparison the
final report and evidence memorandum conducted ten years ago has any
relevance the contents the drafts the drafts disclosure today.
The same also true for NARA assertion about revealing persons
intended subpoenaed. 29. NARA does not claim that prosecutors were
likely call any such persons that their appearances before the grand jury were
clearly anticipated. Sealed Case makes clear that, for Rule 6(e) apply,
the likelihood must substantial, such witness whose testimony was
expected, not something prosecutors were merely considering. 192, F.3d 100203 sure, have recognized that Rule 6(e) would easily evaded
prosecutor could with impunity discuss with the press testimony about
presented grand jury, long had not yet occurred. Accordingly, have
read Rule 6(e) cover matters likely occur. The matter must clearly
anticipated before Rule 6(e) applies. Id. 1003. NARA makes such showing. has not met its burden the extent claims that disclosure the drafts will
reveal the identities persons intended subpoenaed the grand jury.
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The District Court finding that NARA established sufficient nexus
between disclosure the drafts and the inner workings the grand jury process not supported. NARA inconsistent, not contradictory, description the
various versions the draft indictment does not address why, given all the grand
jury and other investigative materials that have been made public, any reason for
keeping such inner workings secret remains. NARA made effort
distinguish the substance the drafts from the clearly identified, publicly
available material presented Plaintiff, and the District Court failed take
proper account this vast quantity grand jury and non-grand jury material.
Neither NARA nor the District Court could articulate identified what inner
workings remain secret and would disclosed making the drafts public.
focusing the nexus rather than whether any reason for secrecy remains, the
District Court erred.
The District Court also erred imposing heightened burden Plaintiff show that the grand jury information the various versions the draft
indictments had already been made public. 412. Plaintiff did not claim that
whatever readily identifiable grand jury information might contained the
withheld records has previously been disclosed. NARA failed identify that
information with any degree specificity that would have allowed Plaintiff
so. Rather, Plaintiff argued that much grand jury and non-grand jury material
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from the independent counsel investigation has been made public that there
reason for any continued secrecy any secrecy left protect.5 NARA that
failed meet its burden show that the mountain information previously
released does not undercut the need for grand jury secrecy asserted.
Sealed Case, 192 F.3d 1004. NARA vague, generalized, conclusory assertions
are too broad satisfy its burden. Its Rule 6(e) claim must fail.
III.
Personal Privacy vs. Public Interest.6
The second issue for the Court decide whether the drafts contain
private, personal information such that disclosure would amount unwarranted
The same true for evidence gathered the independent counsel outside
the grand jury process.
The parties agree that the analysis and balancing required under Exemptions and 7(C) are sufficiently similar warrant consolidated discussion. The
consolidated analysis here made under U.S.C. 552(b)(7)(C).
Exemption 7(C) exempts from disclosure records information compiled
for law enforcement purposes, but only the extent that the production such
law enforcement records information could reasonably expected
constitute unwarranted invasion personal privacy. CREW, 746 F.3d 1091
(quoting U.S.C. 552(b)(7)(C)). reviewing court task, then, balance
the privacy interest against the public interest disclosure. Id. (quoting Nat
Archives and Records Admin. Favish, 541 U.S. 157, 171 (2004)).
The draft indictments were compiled for law enforcement purposes, and
NARA does not claim that any person other than Clinton has any privacy interest the draft indictments. The only issue that remains for NARA Exemptions
and 7(C) claims whether any privacy interest Clinton might have whatever
non-public information exists the draft indictments outweighs the public interest disclosure the draft indictments.
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invasion privacy not outweighed public interest. NARA fails identify any
personal, private information the drafts one which 3-page document
without caption, listing overt acts and another pages scraps draft
indictment with caption. (Document Nos. and 12-13). Whatever
personal privacy interests Clinton might once have had such records, publication the January 2001 Final Report and the 206-page Summary Evidence
greatly limited, not completely negated that interest. Therefore, the District
Court erred determining that Clinton personal privacy interests the drafts
outweigh the public interest their disclosure.
NARA asserts generically that the subject the investigation has
significant privacy interest not being associated with any underlying criminal
activity. 32. The District Court correctly determined that Clinton longer
has interest avoiding the stigma having her name associated with the
criminal investigation issue, because widely known that this investigation
was conducted. 406-407. The District Court nonetheless credited NARA
generic claims personal privacy, holding that Clinton still maintains interest the contents the drafts the proposed indictment without identifying what
particular privacy interests remain.7 407.
Oddly, the District Court faulted Plaintiff for not pointing any evidence
that this Court considered Clinton privacy rights authorizing the publication
the January 2001 Final Report. That evidence the authorization itself. The
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NARA makes claim that disclosure the drafts will reveal any personal,
medical, financial information about Clinton, much less anything intimate
potentially embarrassing. NARA does not even claim disclosure will reveal
anything prosaic about Clinton, such her date place birth, date marriage,
street address, telephone number, email address. The District Court identified such privacy interest. Instead, NARA relies on, and the District Court appears have accepted, generic assertions about Clinton ability control information,
the presumption innocence, and Clinton having defend herself nonjudicial, public forum. NARA declaration simply states [i]n each instance
where information was withheld, was determined that individual privacy rights
outweighed the public interest. 31.
These claims ring especially hollow where hundreds pages grand jury
materials, non-grand jury materials, and independent counsel legal theories and
analysis have been released and are publicly available including some released
with this Court authorization. NARA identifies nothing the privacy side
the balancing scale, while Plaintiff has identified mountain information
already the public domain. evaluating the balance required under Exemptions
Court was fully cognizant the privacy implications releasing the report and
even had authority protect the privacy interests persons identified the
report. 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.
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Filed: 03/29/2017 and 7(C), there need linger something outweighs nothing every
time. Beck Dep Justice, 997 F.2d 1489, 1494 (D.C. Cir. 1993) (quoting
National Ass Retired Fed Employees Horner, 879 F.2d 873 (D.C. Cir.
1989)).
NARA assertion that the public has only scintilla interest OIC
investigation Clinton because Clinton was the former Democratic presidential
candidate, misconceives and drastically underestimates the public interest the
drafts. 32. Plaintiff does not seek information buried government
warehouse about otherwise anonymous private citizen. Cf. United States Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 797 (1989) Reporters Comm. )). Plaintiff seeks information that will shed light both
what Clinton, her capacity high level public official, and OIC were to. this regard, the Court case law has differentiated between what record will
reveal about agency performance its statutory duties and what that same
record will reveal about the actions particular individual. CREW, 746 F.3d
1093. The Court has endorsed case-by-case balancing approach that considers
the rank the public official involved and the seriousness the misconduct
alleged. Id. 1095-1096 (citing Kimberlin U.S. Dep Justice, 193 F.3d
944, 949 (D.C. Cir. 1998).
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Clinton status high level public official, combined with the
seriousness the misconduct for which she was being investigated, clearly weighs favor disclosure. Kimberlin, 139 F.3d 948. This Court has already found
that, First Lady the United States, Clinton was officer the United States, least for the Federal Advisory Committee Act. Ass Am. Physicians and
Surgeons, Inc. Clinton, 997 F.3d 898, 911 (D.C. Cir. 1993). addition
serving First Lady, Clinton also was high level, high profile presidential
advisor who played central role great many public policy matters during her
husband administration. She famously led President Clinton Task Force
National Health Care Reform and had her own office the West Wing. After
serving First Lady from 1993 2001, Clinton served United States Senator
from the State New York from 2001-09. From 2009 2013, she served U.S.
Secretary State.
The misconduct for which Clinton was investigated alleged false
statements and withholding evidence from federal investigators undoubtedly
serious. Making false statements and withholding evidence bears Clinton
honesty, credibility, and trustworthiness, not only First Lady and important
presidential advisor, but also her subsequent government service United
States Senator and United States Secretary State. Disclosure the drafts
undoubtedly will assist the public determining whether there was merit lack
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investigated, and whether her substantial role the White House and subsequently United States Senator and United States Secretary State were positive
negative for the country. will shed light Clinton decades federal
official and what the government to.
The District Court minimized these considerations, erroneously Plaintiff
view, finding that disclosure the drafts would only potentially shed light
the character Mrs. Clinton, independent her position public official,
which not the objective the FOIA. 412. But public official character
cannot easily separated from his her actions office. Character and
credibility plainly bear official actions office and the public
assessment those actions. The importance character and credibility office
only increases with the rank and visibility official position. long
public officials are office, what they and why they integral part
what the government and subject scrutiny. The public ability
access records reflecting public officials actions office, including actions
that bear their character and credibility, well within the purposes and
objectives FOIA. The drafts fall well within the ambit the purpose FOIA
meant serve.
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Like this case, the government CREW sought minimize the public
interest information about criminal investigation prominent government
official former House Majority Leader Tom DeLay. This Court rejected the
government effort, declaring that there considerably more than nothing the
public interest side the scale. CREW, 746 F.3d 1093. Matters
substantive law enforcement policy are properly the subject public concern,
and disclosure the requested records would likely reveal great deal about law
enforcement policy. Id. (internal quotations omitted). Disclosure the records
would likely reveal much about the diligence the FBI investigation and the
DOJ exercise its prosecutorial discretion: whether the government had the
evidence but nevertheless pulled its punches. Id. Indeed, have repeatedly
recognized public interest the manner which DOJ carries out substantive
law enforcement policy (whether not that interest outweighs any privacy interest stake given case). Id. That the investigation implicated public official prominent the former Majority Leader the House Representatives
further raises the stake. Id. 1094. The public interest disclosure recognized this Court CREW even more significant here given Clinton substantial
official role, not only First Lady but also presidential advisor, during her
husband administration.
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Adding further the public interest side the scale the significant public
interest OIC investigation Clinton.8 The weighty public interest shining light OIC investigation Clinton and ultimate decision not prosecute
her cannot denied. See, e.g., CREW, 746 F.3d 1092-93. The public interest the operations and activities OIC under Independent Counsel Ken Starr, who
led one the most controversial, high profile, and politically-charged criminal
investigations U.S. history and which led directly President Clinton 1998
impeachment, remains substantial nearly two decades later. (noting
13,200,000 search results for Google search using the words Starr Report
Disclosure the draft indictments undoubtedly will shed further light OIC
investigation Clinton, but also the functioning independent counsels
general and the wisdom appointing them, issue that continues arise.9 See,
NARA identifies Independent Counsel statutorily-imposed law
enforcement mission investigate and, appropriate, prosecute certain highranking Government officials for violation federal criminal laws. 30.
The District Court acknowledged that the investigation implicate[s]
public official prominent [Mrs. Clinton,] the public interest heightened. 410 (citing CREW, 746 F.3d 1093 may show whether prominent and
influential public officials are subjected the same investigative scrutiny and
prosecutorial zeal local aldermen and little-known lobbyists. )). distinguished
this case from CREW, however, noting that how the FBI and other investigative
agencies conduct investigations different from the activities discrete and
now defunct government agency that has not been existence for nearly two
decades. 410-411. Simply because government agency serves specific
purpose and may now defunct, does not alter the public interest knowing
what was to.
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e.g., Miller, S.A., Schumer demands Session resign, seeks special prosecutor for
Russia investigation, Washington Times (March 2017). Like CREW,
disclosure the records issue would likely reveal great deal about law
enforcement policy. result, the public interest disclosure easily outweighs
any privacy interests that Clinton might still have the various versions the
draft indictment.
IV.
Segregability. agency must disclose [a]ny reasonably segregable portion
otherwise exempt record. U.S.C. 552(b). district court must make specific
findings segregability regarding the documents withheld. Sussman., 494
F.3d 1116 (citation omitted). When, here, records are withheld their
entirety, determination must made whether any portion those records could
have been segregated and released. Trans-Pacific Policing Agreement United
States Customs Serv., 177 F.3d 1022, 1027-28 (D.C. Cir. 1999).
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 United
States Dep State, 878 Supp.2d 215, 225 (D.D.C. 2012) (citing U.S.C.
552(b)). The question segregability necessity subjective and contextspecific, turning upon the nature the documents and information question.
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Id. (citing Mead Data Central, Inc. United States Dep Air Force, 566 F.2d
242, 261 (D.C. Cir. 1977) (citation omitted). satisfy its segregability
obligation, agency must provide reasonably detailed justification rather than
conclusory statements support its claim that the non-exempt material
document not reasonably segregable. Id. 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 United States Dep Justice, 518 F.3d 54, (D.C. Cir. 2008). segregability analysis was undertaken here. NARA does not claim
have even tried undertake segregability analysis. 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
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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. 373.
NARA must conduct segregability analysis each the various versions the draft indictment. Given that the responsive records are draft indictments and
are likely paragraph form, any particular paragraph containing non-public
material about matter before the grand jury which Clinton has some
identifiable privacy interest can easily redacted, allowing the remainder the
record produced. CREW, 746 F.3d 1096. after analyzing each record,
NARA 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, NARA 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 many factors, including whether the draft
includes segregable, non-grand jury material, whether the grand jury material
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longer secret, and the form the document itself. NARA blanket, boilerplate
assertion the contrary exactly the type generalized, conclusory claim that
cannot 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?
NARA segregability claim also suffers from least two additional flaws.
First, and with its other arguments, NARA ignored the mountain grand jury
material already made public. Both the January 2001 Final Report and the 206page Summary Evidence have already disclosed the roadmap about which
NARA claims concerned. This enormous volume publicly available
material must considered 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)
(citations omitted))). Not all statements prosecutors, which includes draft
indictments, are protected from disclosure Rule 6(e). Prosecutors statements
about their investigations implicate the Rule only when they directly reveal
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grand jury matters. Id. 1002. [I]nternal 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.
NARA 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, 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. Indictments rarely ever
identify witnesses who testified before the grand jury documents that were
subpoenaed the grand jury, and would seem even rarer that indictment
would quote from even describe grand jury testimony subpoenaed
documents.
If, after conducting proper segregability analysis each draft indictment,
NARA can identify specific grand jury material that remains secret and its
disclosure would directly reveal grand jury matters grand jury
proceedings within the meaning Rule 6(e), any such material may properly
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redacted. The same true for any non-public information about Clinton, the
disclosure which would not outweigh any privacy interest Clinton might have
the information. The remainder must disclosed.
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CONCLUSION
For the foregoing reasons, Judicial Watch respectfully requests that the
District Court decision reversed and the various versions the draft
indictment released. minimum, the case should remanded that any
truly non-public, grand jury information can redacted from the drafts before
their release.
Dated: March 29, 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
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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 9,453 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ Lauren Burke
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CERTIFICATE SERVICE hereby certify that March 29, 2017, filed via the CM/ECF system the
foregoing 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