How #ReleaseTheMemo Could Undermine DOJ in FOIA Cases
Cogan Schneier, Nat'l Law Journal, Jan. 30, 2018
If President Donald Trump authorizes the release of a House Republican-drafted memo alleging FBI misconduct, the action could undermine the government’s silence in some Freedom of Information Act cases.
House Intelligence Committee Republicans voted Monday to release the classified memo, which is reportedly based off classified material provided to the committee by the Justice Department. It’s expected to indicate DOJ officials improperly reauthorized a warrant application to spy on former Trump campaign associate Carter Page. The application reportedly referenced information from the now-infamous Trump Dossier.
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Bradley Moss of the Law Office of Mark S. Zaid in Washington, D.C., said Trump’s explicit authorization for the memo’s release, and the fact that it’s based on DOJ material, could amount to “official acknowledgement” of the records some of his clients are suing for, including the FISA application and a summary of the dossier.
That would mitigate federal agencies’ refusal to confirm or deny the existence of certain records. Moss said the situation presents a unique legal wrinkle when it comes to FOIA cases.
“There’s no real precedent here,” Moss said. “This is going to be uncharted waters.”
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