Leopold v. DOJ, No. 19-1278, 19-1626, 2020 WL 5253897 (D.D.C. Sept. 3, 2020) (Walton, J.)

Leopold v. DOJ, No. 19-1278, 19-1626, 2020 WL 5253897 (D.D.C. Sept. 3, 2020) (Walton, J.)

Re:  Request for release of typewritten narratives of FD-302 forms ("FD-302s") created by Federal Bureau of Investigation in conjunction with Special Counsel Robert Mueller's investigation into Russian interference in 2016 United States presidential election

Disposition:  Granting defendant's motion for partial summary judgment; denying plaintiffs' motion for partial summary judgment

• Exemption 5, Attorney Work-Product Privilege:  "[T]he Court concludes that the Department appropriately withheld information from the FD-302s pursuant to the attorney work product privilege . . . ."  The court finds that "the information withheld by the Department from the FD-302s pursuant to Exemption 5 based on the attorney work product privilege falls squarely within the scope of the privilege."  "According to the Department, the Special Counsel's Office, which was staffed with attorneys and FBI investigative personnel who were 'assigned to work under the direction of the Special Counsel,' . . . conducted approximately 500 witness interviews during its investigation into Russian interference in the 2016 United States presidential election, . . . 'for the purpose of gathering or otherwise assessing the extent to which evidence could be obtained to support criminal charges and that therefore could be presented to a grand jury and at trial,' . . . and in anticipation of 'the potential for criminal charges' . . . ."  The court finds that "although 'FBI investigative personnel drafted the FD-302s,' the Department represents that 'attorneys would review the draft FD-302 and, if necessary, suggest edits.'"  "The Department further represents that '[i]n addition to participating in the selection of these witnesses for interviews, prosecutors discussed and determined . . . the investigative strategy for witness interviews,' . . . that, '[a]s a general matter, outlines were prepared prior to the witness interview,' . . . either by an attorney or by . . . FBI investigative personnel with edits and comments from an attorney, . . . and that the '[a]ttorneys led, participated in, or attended all the interviews for which the [Department] has asserted the attorney work product doctrine' . . . ."  The court holds that "because 'attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial[,]” the Supreme Court has stated that '[i]t is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.'"  "Where, as here, '[l]aw enforcement agents . . . [were] acting in a supportive role to an attorney preparing a case for indictment or prosecution, the attorney work[ ]product protection applies to their work product under FOIA Exemption 5.'"  Additionally, the court finds that "'factual recitations of what occurred during the interview,' . . . are also protected by the attorney work product privilege."  "Accordingly, to the extent that the information contained in the FD-302s are factual in nature, they are nevertheless protected by the attorney work product privilege and are exempt from disclosure pursuant to Exemption 5 of the FOIA."
  
  Regarding plaintiff's waiver argument, the court relates that "the plaintiffs presuppose that the FD-302s 'appear[ ] to duplicate that being withheld,' . . . 'mirror precisely the information that [they have] requested,' . . . or 'precisely track the records sought to be released' . . . ."  The court holds that "plaintiffs also fail to adequately disprove the Department's representation that it 'did not withhold any information pursuant to Exemption 5 that is waived by its release in the Mueller Report.'"  "According to the Department, '[i]f the information in a given FD-302 was as specific as that information released in the Mueller Report, . . . that information was released in the FD-302s produced to [the] [p]laintiffs in this litigation,' but that '[i]f the information released in the Mueller Report did not match the information in a given FD-302, then [it was] determined that the Department had not waived its ability to withhold the information pursuant to FOIA Exemption 5.'"  "[T]he Court rejects the plaintiffs' argument that the Department waived the attorney work product privilege because of information contained in the Mueller Report."
  
  Additionally, the court relates that "plaintiffs also argue that '[i]n the event the Court determines [that the Department] did not waive th[e] [attorney work product] privilege, [the Department] must still disclose the information because it provides evidence of extreme governmental misconduct.'"  "Specifically, the plaintiffs claim that the government misconduct exception applies because '[t]he details recounted in these [FD-]302s concern allegations of the most extreme government misconduct' – 'the Trump Tower Moscow project and the June 9, 2016 Trump Tower meeting.'"  The court holds that "plaintiffs' 'allegation[s] do[ ] not concern any allegedly egregious discussion [regarding what the Department has] withh[e]ld[ ], but rather allegedly egregious underlying conduct;' therefore, the plaintiffs' 'effort to avail [themselves] of the government misconduct exception accordingly is suspect[.]'"  The court holds that "plaintiffs have failed to produce any evidence showing 'that the [Department] [handling its] FOIA request is engaged in illegal activity,' . . . or 'unprofessional behavior [on the part of the Department's lawyers that] [would] vitiate the work product privilege' . . . ."
   
• Exemption 5, Presidential Communications Privilege:  "[T]he Court concludes that the Department's withholdings pursuant to the presidential communications privilege are appropriate . . . ."  The court finds that "the information withheld pursuant to the presidential communications privilege from the McFarland FD-302s, the Rosenstein FD-302, and the Cohen FD-302 are clearly protected by the privilege."  "The Department's representations show that it withheld descriptions of communications that involve the President or his advisers."
   
  Responding to plaintiffs' first challenge, the court holds that "[c]ourts in this district have routinely concluded that it is not required that the President personally invoke the presidential communications privilege for the privilege to apply under Exemption 5 in FOIA cases."  Additionally, the court finds that "[a]ll three of the Department's categories describe communications that involve the types of advisers – individuals with 'broad and significant responsibility for investigating and formulating the advice to be given the President,' . . . contemplated as being covered by the presidential communications privilege."  Also, regarding plaintiffs' arguments concerning what it calls defendant's "blanket claim" concerning the privilege, the court finds that "plaintiffs fail to acknowledge the Department's representation that the subjects of the communications withheld under the presidential communications privilege 'related to the following areas of actual or potential presidential decision-making:' (1) '[p]ossible actions to be taken in the conduct of foreign relations,' (2) '[p]ossible actions to be taken with respect to nomination, appointment or removal of presidential appointees,' (3) '[p]ossible presidential action documents (whether styled as Executive Orders, Presidential Memoranda, Proclamations, National Security Presidential Memoranda, or other forms),' and (4) '[p]ossible official public statements, which the President personally participated in developing or was anticipated to participate in developing.'"  "And, deliberations about such decisions are protected by the presidential communications privilege because they involve official government matters."
  
  Responding to plaintiffs' second challenge, the court holds that "although the plaintiffs claim that the President has waived the executive privilege by publicly stating that he 'had the RIGHT to use [e]xecutive [p]rivilege,' but that he 'did[ ] n[o]t!' . . . they have not provided the context in which the President's statement was made to suggest that his statement was made in reference to the specific invocation of the presidential communications privilege."  "[B]ecause the President 'did not explicitly declare that [he] . . . would forego any and all claims of privilege that might apply to the [FD-302s],' . . . and because 'a waiver [of this privilege] should not be lightly inferred,' . . . the Court concludes that the President did not waive the presidential communications privilege in regard to the information withheld by the Department."