Trump Tweet About Surveillance Undercuts FBI's Glomar Responses In FOIA Lawsuits

from the Make-Petitioning-Grievances-Great-Again-Also dept

There's no precedent for the volatility of our current president. That seems to be working out just fine for many, many plaintiffs engaged in lawsuits against the government. Attorney Brad Moss, currently suing the FBI over denied FOIA requests related domestic surveillance of Trump administration personnel, just had a 276-character gift dropped in his lap by the Commander-in-Chief.

The House of Representatives seeks contempt citations(?) against the JusticeDepartment and the FBI for withholding key documents and an FBI witness which could shed light on surveillance of associates of Donald Trump. Big stuff. Deep State. Give this information NOW! @FoxNews

The key here is the contempt citations and "shedding light on surveillance" of Donald Trump's associates. These are exactly the records Brad Moss is seeking. Moss jumped on the tweet, letting the president know he'd just performed an invaluable, if inadvertent, service on behalf of his clients.

OMG, are you stupid? You just blew apart two different cases your DOJ is defending against me. I’m going to take you apart, Mr. President.

Moss (and Mark Zaid) -- representing the Brad Heath (in one case) and Propublica (in the other) -- filed complaints when the FBI refused to produce documents pertaining to alleged FISA-approved surveillance (the Heath case) and the Christopher Steele dossier (Propublica case). In support of the FOIA requests, the plaintiffs cited plenty of public comments by officials and representatives, including House Oversight member Devin Nunes, who apparently was troubled that the surveillance apparatus he loves was being used against members of his own party.

The deadline for response came and went in both cases, prompting lawsuits. According to the amended complaint [PDF] filed in the Brad Heath case, the FBI suddenly felt the overwhelming urge to provide a (non) answer when hit with a lawsuit.

Approximately six hours after the initiation of this litigation, the FBI issued a response to the Requesters. In that response, the FBI stated that it could not confirm or deny the existence of responsive records, as doing so would trigger harm to national security interests under Exemptions (b)(1) and (b)(3).

Moss set some sort of FOIA litigation land speed record filing a Notice of Supplemental Information [PDF] based on the still-warm Trump tweet. The filing quotes Trump's tweet before explaining what the president was apparently referencing.

For context, this tweet by the President appears to be in reference to a news report aired on Fox News this evening. http://video.foxnews.com/v/5662667184001/ ?#sp=show-clips (last accessed November 29, 2017). In the news report, Fox News anchor Bret Baier announces that investigators for the House of Representatives have recommended the issuance of contempt citations against the Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”). The basis for the contempt citations concerns pending subpoenas served upon DOJ and FBI by the House Permanent Select Committee on Intelligence and that seek, among other things, “efforts to corroborate information provided by Mr. Steele” that were memorialized in the Steele Dossier. http://i2.cdn.turner.com/cnn/2017/images/09/06/nunesletter.pdf (last accessed November 29, 2017). In the Fox News report, reporter James Rosen notes the separate issue that allegations from the Steele Dossier were purportedly relied upon in some fashion as the factual justification to secure surveillance warrants targeting associates of President Trump. http://video.foxnews.com/v/5662667184001/?#sp=show-clips (last accessed November 29, 2017)

Trump's tweet -- based on Fox News reports -- makes it pretty clear the FBI has some files on surveillance targeting Trump associates. I'm sure DOJ counsel will be filing something shortly contesting Trump's assertions and/or claiming Trump's tweets aren't "official" administration statements. It shouldn't matter. The tweet and the underlying reports will force the FBI to give up its Glomar and take a side.

The President’s tweet this evening is a rather clear and concrete official acknowledgment of the existence of records responsive to the Plaintiffs’ FOIA requests. The President specifically and definitively stated that the “key documents” he is publicly ordering the FBI and DOJ to release to Congressional investigators “could shed light on surveillance of associates of Donald Trump.” This is more than sufficient to nullify at least in part, as a matter of law, the appropriateness of the Glomar responses categorically invoked by the DOJ in this present case.

This isn't the first time a Trump tweet has contradicted legal arguments made by his own administration. It certainly won't be the last. A house divided against itself cannot stand, but it does make for entertaining litigation.

Filed Under: brad heath, brad moss, donald trump, fbi, foia, glomar, tweets