FOIA News: DOJ gives up FOIA fight, releases advisory memo re: Trump

Justice Department releases Mueller-era memo on Trump prosecution

Two top aides to then-Attorney General William Barr said Trump’s acts wouldn’t have merited obstruction charges even if he were not immune as president.

By Josh Gerstein & Kyle Cheney, Politico, Aug. 24, 2022

The Justice Department has released a long-sought legal memo arguing that then-President Donald Trump’s actions during special counsel Robert Mueller’s Trump-Russia investigation did not warrant prosecution for obstruction of justice, even if a president was susceptible to criminal charges while in office.

In the nine-page memo disclosed Wednesday, two of the most senior officials in the Justice Department advised then-Attorney General William Barr that Trump’s threats to fire Mueller and his various public and private outbursts against witnesses he viewed as hostile or unhelpful to him didn’t amount to the sort of case prosecutors would bring under their established standards.

Read more here.

Court opinion issued Aug. 23, 2022

Scoville v. U.S. Dep’t of State (E.D. Wis.) -- ruling that plaintiff’s Complaint alleged sufficient facts to state plausible “policy and practice” claim, noting that agency allegedly failed to comply with plaintiff’s FOIA requests on six occasions from 2014 to 2021.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 19, 2022

Transgender Law Ctr. v. ICE (9th Cir.) -- holding that: (1) agencies must prove adequacy of search “beyond material doubt” and that district court erred in finding that DHS adequately searched or records pertaining to asylum-seeker’s death from HIV in federal custody; (2) district court should not have “essentially treated all drafts as necessarily covered by the deliberative process privilege”; (3) district court erred in permitting government to withhold email domain addresses under Exemptions 6 and 7(C); (4) government’s use of Exemption 7(E) was overbroad and district court neglected to analyze whether withheld records were techniques and procedures, and not guidelines; and (5) district court failed to ensure that government’s Vaughn Index entries were non-conclusory, that government explained why documents were not segregable, and that government properly designated certain documents as non-responsive or duplicates.

Citizens for Responsibility & Ethics in Wash v. DOJ (D.C. Cir.) -- affirming district court’s decision that DOJ failed to adequately explain how agency memorandum to Attorney General Barr concerning Mueller Report fell within Exemption 5’s deliberative process privilege; declining to decide whether “a purely hypothetical, academic discussion among agency personnel could qualify under the . . . privilege”; refusing to allow DOJ to present a new argument that memorandum was drafted “for the purpose of determining the content of a possible public statement regarding the report.”

Asian Am. Advancing Justice v. DHS (N.D. Cal.) -- determining that Immigration and Customs Enforcement properly relied to on Exemption 7(E) to redact memorandum of understanding concerning Vietnam’s acceptance of certain Vietnamese citizens.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Aug. 17, 2022

Occupational Safety & Health Law Proj. v. DOL (D.D.C.) -- in case involving request for company’s settlement agreement, ruling the government met its burden for the "commercial" and "obtained from a person" requirements of Exemption 4, but that had not carried burden as to the confidentiality prong of Exemption 4, foreseeable harm, or segregability.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Aug. 16, 2022

Am. Oversight v. DOJ (2nd Cir.) -- affirming district court’s decision that FBI properly relied on Exemption 5’s attorney work-product privilege to withhold records generated from interviews of targets or subjects related to investigation of persons associated with Donald Trump’s 2016 presidential campaign; rejecting appellant’s flawed reasoning that “an attorney can waive protection for work-product documents even before the documents exist.”

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 15, 2022

Cincinnati Enquirer v. DOJ (6th Cir.) -- in 2-1 decision, affirming district court’s ruling that government properly relied on Exemption 7(C) to withhold records concerning U.S. Attorney’s decision not to prosecute a state prosecutor with obstruction of justice.

McWatters v. ATF (D.D.C.) -- amending court’s memorandum opinion of March 31, 2022.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Aug. 12, 2022

Telematch, Inc. v. USDA (D.C. Cir.) -- affirming district court’s decision that: (1) USDA properly relied on Exemption 3, in conjunction with 7 U.S.C. § 8791(b)(2)(B), to withhold farm numbers and tract numbers associated with its farm subsidy programs; and (2) USDA properly used Exemption 6 to withhold customer numbers assigned to individual farmers, because release “substantial probability” existed that release would reveal financial condition of farmers and plaintiff did not establish an overriding public interest.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 10-11, 2022

Aug. 11, 2022

Climate Investigations Ctr. v. U.S. Dep’t of Energy (D.D.C.) -- following five rounds of summary judgment, deciding that: (1) agency performed adequate supplemental search of Secretary’s office; (2) agency properly invoked Exemption 5’s deliberative process privilege to withhold some, but not all, disputed documents, and it met the statute’s foreseeable harm requirement.

Aug. 10, 2022

Protect the People’s Trust v. DHS (D.D.C.) -- deciding that Department’s Privacy Office received plaintiff’s request and was required to search for responsive records, because: (1) the request was addressed to the Privacy Office, among others; and (2) another DHS component referred records to the Privacy Office, as well as a copy of the request; (3) plaintiff repeatedly informed DHS that the Privacy office maintained responsive records'; and (4) DHS regulations did not require plaintiff to resubmit request if misdirected.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 5, 2022

Seife v. FDA (2nd Cir.) -- affirming district court’s decision that Exemption 4 protected portions of pharmaceutical company's successful application for accelerated approval of a drug. Of note, concluding that government met statute’s foreseeable harm provision, which the Court held, in the Exemption 4 context, required the government to address “the submitter's commercial or financial interests.”

Pub. Citizen v. USDA (D.D.C.) -- ruling that agency failed to submit any admissible evidence to support its claim that Exemption 4 protected records concerning the operations of certain meat- and poultry-processing facilities during the early months of the COVID-19.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Aug. 3, 2022

Hamad v. Myorkas (S.D. Ohio) -- determining that U.S. Citizenship and Immigration Services properly relied on Exemptions 6, 7(C), and 7(E) to withhold records concerning agency’s investigation of plaintiff for marriage fraud.

Summaries of all published opinions issued since April 2015 are available here.