James Madison Project v. DOJ, No. 17-1392, 2018 WL 4283562 (D.D.C. September 7, 2018) (Jackson, J.)

James Madison Project v. DOJ, No. 17-1392, 2018 WL 4283562 (D.D.C. September 7, 2018) (Jackson, J.)

Re:  Request for records related to "whether President Donald J. Trump is or ever was a target of, subject of, or material witness to any investigation"

Disposition:  Granting defendant's motion for summary judgment, denying plaintiff's motion for summary judgment

• Exemption 7(A), Glomar: In response to the plaintiff's argument that "the executive branch has waived its right to assert the exemption as the basis for its Glomar response because the existence of responsive records has already been disclosed through official statements," the court concludes that the agency has justified its Glomar response under Exemption 7(A).  The court explains, "[p]laintiffs do not point to any statements issued by the FBI or DOJ that explicitly acknowledge that the agency has records on whether President Trump was or is a target, subject, or material witness of an investigation."  The court further states, "the only official statement in the record made by the FBI is the March 2017 Congressional testimony of then-Director Comey, in which he expressly declined to provide details on the Russia investigation." 
  
  The plaintiffs instead rely on statements made by President Trump, but the court holds, "no statement explicitly acknowledges the existence of responsive records within the FBI or DOJ, and none of them 'match' the information sought in the FOIA request." Specifically, President Trump's statement that he is not under investigation that was included in his letter terminating Director Comey from his position, "implicitly asserts that there were certain exchanges between the then FBI director and the President concerning the investigation." However, this "does not mirror the specificity of the request" for records on whether the President is a target, subject, or material witness in an investigation.  The court similarly finds that various statements to the media do not "explicitly refer to the existence of any record within the agency, or necessarily imply the existence of such records."  The court also holds that "a memorandum issued by members of a House Committee cannot constitute an official disclosure on behalf of the FBI and DOJ."  Furthermore, the statement in the memorandum that "FISA was not 'used to spy on President Trump or his campaign' does not specifically mirror the plaintiffs' FOIA request."  Lastly, the court holds that the President's tweets, many of which "were sparked by information disseminated by the press, rather than government documents . . . cannot constitute an official acknowledgement."