United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2021 Decided August 24, 2021

No. 20-5131

PROTECT DEMOCRACY PROJECT, INC.,

APPELLANT

v.

NATIONAL SECURITY AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-01000)

Michael P. Abate argued the cause for appellant. With him 

on the briefs was Benjamin L. Berwick.

Samantha L. Chaifetz, Attorney, U.S. Department of 

Justice, argued the cause for appellee. With her on the brief 

was Mark B. Stern, Attorney.

Before: PILLARD and WALKER, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The Protect Democracy Project

challenges the National Security Agency’s decision to 
2

withhold one record from disclosure under the Freedom of 

Information Act. The record at issue is a memorandum the 

NSA Deputy Director wrote in 2017, memorializing what was 

said on a phone call he participated in between President 

Trump and the NSA Director soon after it occurred. According 

to an account of the phone call in Special Counsel Robert 

Mueller’s report on Russian interference in the 2016 election, 

President Trump asked the NSA Director whether he could do 

anything to refute news stories connecting Trump to the 

Russian government. 

The NSA withheld the memo under a FOIA exemption

that incorporates privileges available to the government in civil 

litigation, claiming executive privilege for presidential 

communications. The district court sustained the privilege 

claim. It denied Protect Democracy’s request to examine the 

memo for any segregable passages subject to release under 

FOIA on the ground that the presidential communications 

privilege protected the memo in full. The district court also 

held that the government did not waive the privilege when it 

published in the Mueller Report a description of the 

conversation at issue. 

Based on our in camera review, the memo at issue falls 

squarely within the scope of the presidential communications 

privilege. And, as the district court appreciated, our precedent 

applies the privilege to the memo in its entirety. Protect 

Democracy cannot shrink the scope of the privilege by 

invoking FOIA’s segregability requirement, even if its FOIA 

request raises credible allegations of governmental misconduct

(a question we need not decide). In addition, the government’s 

description of the phone call in the Mueller Report did not 

waive the privilege, as not all the information in the memo 

specifically matches the information released in the report. We 

thus affirm the district court’s decision in full.
3

BACKGROUND

On March 20, 2017, FBI Director James Comey testified 

before the House Permanent Select Committee on Intelligence 

that the FBI was conducting a counterintelligence investigation 

into interference by the Russian government in the 2016

presidential election. That was the first time the Department of 

Justice or the FBI publicly disclosed the existence of their

investigation. Director Comey testified at the hearing that, as 

part of its investigation, the FBI was examining any potential 

links between President Donald Trump’s presidential 

campaign and the Russian government. Two months later, on 

May 9, Trump fired Comey. Eight days after Comey’s firing, 

Deputy Attorney General Rod Rosenstein appointed former 

FBI Director Robert Mueller as Special Counsel to oversee the

existing FBI investigation.

Soon after Mueller’s appointment, the Washington Post

reported that Trump had called both the Director of National 

Intelligence and the Director of the NSA days after Comey’s 

testimony in March to ask that they rebut allegations of

coordination between his presidential campaign and the 

Russian government. The Post stated that Trump’s 

conversation with Admiral Michael Rogers, the NSA Director

at that time, “was documented contemporaneously in an 

internal memo written by a senior NSA official.” Adam Entous 

& Ellen Nakashima, Trump Asked Intelligence Chiefs to Push 

Back Against FBI Collusion Probe After Comey Revealed Its 

Existence, Wash. Post (May 22, 2017), http://wapo.st/2ruKr9n. 

Two months later, the media reported that Mueller was 

investigating whether Trump had obstructed justice in his

handling of the FBI investigation, including in his firing of 

Comey. The Wall Street Journal stated that Mueller planned to 

interview the two intelligence chiefs, as well as Richard
4

Ledgett, who had recently retired as deputy director of the 

NSA. The Journal identified Ledgett as the senior NSA official 

who had documented Trump’s call with NSA Director Rogers. 

See Del Quentin Wilber, Shane Harris & Paul Sonne, Mueller 

Probe Examining Whether Donald Trump Obstructed Justice, 

Wall St. J. (June 15, 2017), https://www.wsj.com/articles/

mueller-probe-examining-whether-donald-trump-obstructedjustice-1497490897. 

In April 2019, the Department of Justice released a 

partially redacted version of Special Counsel Mueller’s report

on the results of his investigation. The report confirmed that, in 

the days after Comey’s testimony, Trump asked intelligence 

community leaders to deny that he had any connection to 

Russia. The report described Trump’s call with Rogers as 

follows: 

On March 26, 2017 . . . the President called NSA 

Director Admiral Michael Rogers. The President 

expressed frustration with the Russia investigation, 

saying that it made relations with the Russians 

difficult. The President told Rogers “the thing with 

the Russians [wa]s messing up” his ability to get 

things done with Russia. The President also said that 

the news stories linking him with Russia were not 

true and asked Rogers if he could do anything to 

refute the stories. Deputy Director of the NSA 

Richard Ledgett, who was present for the call, said it 

was the most unusual thing he had experienced in 40 

years of government service. After the call 

concluded, Ledgett prepared a memorandum that he 

and Rogers both signed documenting the content of 

the conversation and the President’s request, and 

they placed the memorandum in a safe. But Rogers 

did not perceive the President’s request to be an 
5

order, and the President did not ask Rogers to push 

back on the Russia investigation itself. Rogers later 

testified in a congressional hearing that as NSA 

Director he had “never been directed to do anything 

[he] believe[d] to be illegal, immoral, unethical or 

inappropriate” and did “not recall ever feeling 

pressured to do so.”

Special Counsel Robert S. Mueller, III, Report on the 

Investigation into Russian Interference in the 2016 Election, 

Volume II (hereinafter Mueller Report Vol. II) at 56-57 (March 

2019) (J.A. 46-47), https://www.justice.gov/archives/sco/

file/1373816/download (citations omitted). All footnotes 

attached to that paragraph reference interviews with Rogers 

and Ledgett, and the report contains no indication that its 

authors saw or relied on Ledgett’s memo. 

This case evolved alongside the developments discussed 

above. In April 2017, before news outlets reported on any call 

between Trump and Rogers, Protect Democracy sent a FOIA 

request to the NSA seeking several categories of documents 

relating to Russian interference in the 2016 election and links 

between Trump associates and Russian agents. After waiting 

a month for a response from the NSA, Protect Democracy sued. 

In early 2018, Protect Democracy narrowed its FOIA request 

to any memoranda written by senior NSA officials

documenting a conversation between the President or other 

White House personnel and senior NSA officials “in which the 

White House asked the NSA to publicly dispute any suggestion 

of collusion between Russia and the Trump campaign.” J.A. 

68. The NSA issued a Glomar response, declining to confirm 

or deny the existence of a responsive record. See Leopold v. 

CIA, 987 F.3d 163, 167 (D.C. Cir. 2021). But it withdrew that

response after the Mueller Report was released, as the report

confirmed the existence of at least one responsive record: 
6

Ledgett’s memo on the Trump-Rogers call. The NSA then 

advised the district court that it had identified that one 

responsive record but withheld it pursuant to four statutory

exemptions from FOIA’s disclosure requirements: Exemption

1 (classified material), Exemption 3 (material exempt under 

other statutes), Exemption 5 (privileged material), and 

Exemption 6 (material invading personal privacy).

In March 2020, the district court reviewed the record at 

issue in camera. See Protect Democracy Project v. NSA, 453 

F. Supp. 3d 339, 344 (D.D.C. 2020). It then granted summary 

judgment to the NSA. Id. at 354. The court held that Ledgett’s 

memo was protected by the presidential communications 

privilege—a component of executive privilege—and thus 

permissibly withheld under FOIA Exemption 5, which 

incorporates privileges available to the government in civil 

litigation. Id. at 346-48. The court did not reach the other 

claims of exemption. Id. at 346 n.4. It rejected Protect 

Democracy’s request that it assess whether portions of the 

memo were segregable under FOIA, citing our precedent that 

presidential communications privilege applies to documents in 

their entirety. Id. at 348-49 (citing Judicial Watch, Inc. v. Dep’t 

of Def., 913 F.3d 1106, 1111 (D.C. Cir. 2019); Loving v. Dep’t 

of Def., 550 F.3d 32, 37-38 (D.C. Cir. 2008); In re Sealed Case, 

121 F.3d 729, 745 (D.C. Cir. 1997)). It also declined to 

recognize an exception to the privilege’s protection based on 

Protect Democracy’s allegations of government wrongdoing. 

Id. at 349-51. And it held that the Mueller Report’s description 

of the President’s phone call did not constitute an official 

acknowledgment of information in Ledgett’s memo and thus a 

waiver that would have allowed Protect Democracy to compel 

disclosure despite the NSA’s valid exemption claim. Id. at 

352-54.
7

Protect Democracy noticed its appeal and filed a petition 

for initial hearing en banc. It argued that initial en banc 

consideration was warranted because “[t]he facts of this case 

present a compelling reason for reconsidering [this court’s] 

precedents and allowing segregability in FOIA cases” of 

nonprivileged information in documents that include 

presidential communications. Initial En Banc Consideration 

Pet. 4. The court denied that petition. See Order, Protect 

Democracy Project, Inc. v. NSA, No. 20-5131 (D.C. Cir. July 

7, 2020). Briefing and argument before this panel followed. 

ANALYSIS

On appeal, Protect Democracy argues that a record exempt 

from disclosure under FOIA on the basis of the presidential 

communications privilege, but that arguably contains 

nonprivileged information, should be reviewed to determine 

whether the nonprivileged information can be segregated and 

released. Alternatively, it asserts that segregability should be 

allowed where those portions of a record not protected by the 

privilege are credibly alleged to concern presidential 

misconduct. Protect Democracy also argues the Mueller 

Report constituted an official acknowledgment of information 

in Ledgett’s memo, thereby waiving the government’s right to 

assert the presidential communications privilege over that 

information. We review the district court’s grant of summary 

judgment in FOIA cases de novo. See Judicial Watch, Inc. v. 

Dep’t of Def. (Judicial Watch III), 913 F.3d 1106, 1110 (D.C. 

Cir. 2019). We first address Protect Democracy’s claims about

the presidential communications privilege and its interaction 

with FOIA’s segregability requirement, including where 

presidential misconduct is claimed. We then turn to the issue 

of waiver. 
8

A. Segregability

FOIA requires federal agencies to disclose to the public 

records requested under the Act unless the records fall into one 

of nine statutory exemptions. See 5 U.S.C. § 552(b). When a 

FOIA exemption covers a requested agency record, FOIA’s 

terms require that “[a]ny reasonably segregable portion of 

[that] record . . . be provided to any person requesting such 

record after deletion of the portions which are exempt.” Id.

Exemption 5, the only exemption at issue in this appeal,

allows the government to withhold “inter-agency or intraagency memorandums or letters that would not be available by 

law to a party other than an agency in litigation with the 

agency.” Id. § 552(b)(5). “As the text indicates—albeit in a 

less-than-straightforward way—this exemption incorporates 

the privileges available to Government agencies in civil 

litigation.” Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. 

Ct. 777, 785 (2021). In addition to the attorney-client privilege

and the attorney work-product doctrine, the incorporated 

privileges include those recognized as components of 

executive privilege, including the deliberative process 

privilege and presidential communications privilege. See

Judicial Watch III, 913 F.3d at 1109.

The government here relies on the presidential 

communications privilege, which the Supreme Court first 

affirmatively endorsed half a century ago in United States v. 

Nixon (Nixon I), 418 U.S. 683 (1974). The Court explained

that “[a] President and those who assist him must be free to 

explore alternatives in the process of shaping policies and 

making decisions and to do so in a way many would be 

unwilling to express except privately.” Id. at 708. Such 

considerations justified what it called “a presumptive privilege 

for Presidential communications.” Id. 
9

The Court later described the presidential communications

privilege as “limited to communications ‘in performance of (a 

President’s) responsibilities,’ ‘of his office,’ and made ‘in the 

process of shaping policies and making decisions.’” Nixon v. 

Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977) (quoting Nixon

I, 418 U.S. at 711, 713, 708). Or, as we have summarized, the

privilege applies to “documents or other materials that reflect 

presidential decisionmaking and deliberations and that the 

President believes should remain confidential.” In re Sealed 

Case, 121 F.3d 729, 744 (D.C. Cir. 1997). “At core, the 

presidential communications privilege is rooted in the 

President’s need for confidentiality in the communications of 

his office, in order to effectively and faithfully carry out his 

Article II duties and to protect the effectiveness of the 

executive decision-making process.” Judicial Watch, Inc. v. 

Dep’t of Justice (Judicial Watch I), 365 F.3d 1108, 1115 (D.C. 

Cir. 2004) (citations and internal quotation marks omitted). 

The nature and scope of the presidential communications 

privilege is clearer when contrasted to the deliberative process 

privilege. The deliberative process privilege is primarily a 

common law privilege, and it covers records documenting the

decisionmaking of executive officials generally. In re Sealed, 

121 F.3d at 745. The presidential communications privilege is

a constitutionally based privilege, and it applies to records of 

nonpublic presidential communications specifically. Id. 

“Consequently,” we have held, “congressional or judicial 

negation of the presidential communications privilege is 

subject to greater scrutiny than denial of the deliberative 

[process] privilege.” Id. And, importantly here, whereas the

deliberative process privilege covers only pre-decisional and 

deliberative material, the presidential privilege covers 

documents “in their entirety,” including post-decisional and 

factual material within a record. Id. at 745-46; accord Loving 

v. Dep’t of Def., 550 F.3d 32, 37-38 (D.C. Cir. 2008). In this 
10

way, the presidential communications privilege is broader than 

its deliberative process cognate.

Like the deliberative process privilege, the presidential 

communications privilege is qualified, not absolute, so when 

invoked in a civil or criminal case, for example, it may be 

overcome by an adequate showing of need. See In re Sealed, 

121 F.3d at 753-57 (grand jury subpoena); Dellums v. Powell, 

561 F.2d 242, 247-50 (D.C. Cir. 1977) (civil litigation). But 

we have held that, because “the particular purpose for which a 

FOIA plaintiff seeks information is not relevant in determining 

whether FOIA requires disclosure,” a need showing does not 

figure into privilege determinations under FOIA in the way it

does in non-FOIA litigation. Judicial Watch III, 913 F.3d at 

1112 (quoting Loving, 550 F.3d at 40). In the FOIA context, 

once even a qualified privilege like the presidential 

communications privilege applies to a record claimed exempt 

from disclosure under Exemption 5, a need showing does not 

overcome it. Id. 

1.

Our own in camera review of Ledgett’s memo confirms it 

was properly withheld pursuant to FOIA Exemption 5. The 

Memo memorializes a phone call that was initiated by the 

President in which he discussed and sought information 

relevant to his deliberation over issues connected to foreign 

relations and intelligence-gathering. Such a document falls 

squarely within the scope of the presidential communications

privilege for two main reasons.

First, the memo “reflect[s] presidential decisionmaking 

and deliberations.” In re Sealed, 121 F.3d at 744.

1 Its 

1 “[T]he issue of whether a President must personally invoke the 

[presidential communications] privilege remains an open question, 
11

disclosure “would reveal the President’s deliberations.” 

Judicial Watch III, 913 F.3d at 1113. Ledgett’s memo 

documents a conversation in which President Trump was 

himself a direct participant, much like the tape recordings at 

issue in the Nixon cases. See In re Sealed, 121 F.3d at 747. 

Records of what was said by or directly to the President lie at 

the heart of the presidential communications privilege. See id.

at 752 (explaining that the privilege “is bottomed on a 

recognition of the unique role of the President”); cf. Judicial 

Watch I, 365 F.3d at 1112 (declining to extend the privilege to 

“internal agency documents that are ‘not solicited and 

received’ by the President or his Office”); Loving, 550 F.3d at 

39-40 (“Nothing in [Judicial Watch I] disturbs the established 

principle that communications ‘directly involving’ the 

President . . . are entitled to the privilege, regardless of whether 

the President solicited them.”).2

Second, the conversation memorialized in Ledgett’s 

memo concerns “the President’s Article II powers and 

and the court need not decide it now,” as neither party raised it below 

or on appeal. Judicial Watch I, 365 F.3d at 1114; see In re Sealed, 

121 F.3d at 744-45 n.16 (describing history of Presidents’ personal 

assertions of the privilege, but noting that we did not need to decide 

whether the privilege must be invoked by the President personally in 

a case in which he had done so).

2 Protect Democracy emphasizes our statement that the privilege

“should never serve as a means of shielding information regarding 

governmental operations that do not call ultimately for direct 

decisionmaking by the President,” In re Sealed, 121 F.3d at 752, 

arguing that the privilege does not cover the phone call because the 

conversation required no “direct decisionmaking” by the President. 

But that portion of In re Sealed Case concerned communications that 

did not directly involve the President. Elsewhere in that case, we

explained that the privilege covers “materials connected to

presidential decisionmaking.” Id. at 745 (emphasis added).
12

responsibilities,” which form “the constitutional basis of the 

presidential communications privilege.” In re Sealed, 121 F.3d 

at 748. As described in an NSA declaration, “Admiral Rogers 

provided the President with information and analysis based on 

specific NSA intelligence . . . in the context of a conversation 

related to national security and foreign affairs.” J.A. 54. Even 

the Mueller Report, which investigated the call in relation to 

concerns about potential obstruction of justice, establishes that 

Trump and Rogers discussed matters of foreign relations. See 

Mueller Report Vol. II at 56 (Trump told Rogers the FBI 

investigation into alleged links with Russia “made relations 

with the Russians difficult.”); id. at 60-61 (characterizing the 

evidence regarding Trump’s responses to Comey’s testimony

as, in part, “indicat[ing] that the President was concerned about 

the impact of the Russia investigation on his ability to 

govern”). Those issues implicate the President’s 

responsibilities and his legitimate interest in confidentiality. 

See Nixon I, 418 U.S. at 710-11; Judicial Watch III, 913 F.3d 

at 1111-12 (applying the privilege in the context of “a highly 

sensitive subject with serious direct and collateral 

consequences for foreign relations”). 

Indeed, Protect Democracy does not dispute the district 

court’s holding that at least part of Ledgett’s memo is protected

by the presidential communications privilege. It instead argues 

against applying the privilege to any portion of the memo that 

concerns Trump’s question, as described in the Mueller Report, 

whether Rogers “could do anything to refute the stories.” J.A. 

46. According to Protect Democracy, Trump’s request falls 

outside the President’s Article II powers so is unrelated to 

presidential decisionmaking. Because, in its view, such 

information falls outside the scope of the privilege, Protect 

Democracy contends that we should require examination of 

Ledgett’s memo to determine which, if any, parts are
13

“reasonably segregable” and subject to disclosure under FOIA. 

5 U.S.C. § 552(b). 

The problem for Protect Democracy is that, under existing 

precedent, the presidential communications privilege “applies 

to documents in their entirety.” In re Sealed, 121 F.3d at 745. 

As a result of that principle, we have previously indicated that 

a record protected by the privilege is not segregable in response 

to a FOIA request. We described the scope of the presidential 

communications privilege in the context of FOIA Exemption 5 

when comparing it to its counterpart, the deliberative process 

privilege. “The [presidential communications] privilege 

covers documents reflecting ‘presidential decisionmaking and 

deliberations,’ regardless of whether the documents are 

predecisional or not, and it covers the documents in their 

entirety.” Loving, 550 F.3d at 37-38 (quoting In re Sealed, 121 

F.3d at 744-45). “Unlike the presidential communications 

privilege,” we explained, “the deliberative process privilege 

does not protect documents in their entirety; if the government 

can segregate and disclose non-privileged factual information 

within a document, it must.” Id. at 38. We more recently held

that, because “[o]nce the [presidential communications]

privilege applies, the entirety of the document is protected” 

under FOIA Exemption 5, Judicial Watch III, 913 F.3d at 1111, 

“the question of segregability of non-exempt material is . . . not 

presented,” id. at 1113. Even accepting, then, Protect 

Democracy’s claim that portions of Ledgett’s memo would not 

be privileged if they existed in isolation, they are nonetheless 

not segregable under FOIA as part of the memo—a document 

made to memorialize only one conversation and that, based on 

our in camera review, otherwise falls squarely within the scope 

of the privilege. 

Protect Democracy challenges our precedent on this point 

as contrary to FOIA’s plain text, which refers to segregation of 
14

nonprivileged parts of government records. But we have 

already rejected that line of argument in an Exemption 5 case, 

holding that “there are no segregable parts” where a document 

is protected in its entirety by the relevant privilege—there, the

attorney work product doctrine, which covers even factual 

work product. Judicial Watch, Inc. v. Dep’t of Justice (Judicial 

Watch II), 432 F.3d 366, 370-71 (D.C. Cir. 2005). FOIA’s

segregability requirement presumes that some part of a

document is not exempt; it requires disclosure of “any 

reasonably segregable portions . . . after deletion of the portions 

which are exempt.” 5 U.S.C. § 552(b). But where an entire 

document is protected by a privilege, as is the case here, “there 

simply are no reasonably segregable portions . . . to release 

after deletion of the portions which are exempt.” Judicial 

Watch II, 432 F.3d at 370 (formatting modified). 

Seeking a way around that complete coverage, Protect 

Democracy urges us to overrule the precedent that applies the 

presidential communications privilege to an entire document so 

as to render segregability analysis inapplicable. Appellant Br. 

25-26. Protect Democracy echoes the district court’s concern 

that an entire-document rule might allow the government to 

incorporate materials covered by the privilege into a document 

that would not otherwise be, thus improperly shielding the 

latter from FOIA disclosure. See Protect Democracy, 453 F. 

Supp. 3d at 350. But even as it describes this case as “a

uniquely good vehicle” for overruling precedent, Appellant Br. 

30, it provides no reason to think that any such tail-waggingdog abuse of the privilege occurred here. Our review of 

Ledgett’s short memo confirms that it memorializes a single, 

limited conversation. In any event, our circuit precedent binds 

us as a panel, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 

(D.C. Cir. 1996), so we take this argument as Protect 

Democracy’s preservation of the point for potential en banc 

review. 
15

2.

Protect Democracy alternatively argues that we should

require segregation and disclosure under FOIA where a 

plaintiff credibly alleges that a record of a privileged 

presidential communication contains information manifesting 

governmental misconduct. Even if our precedent does not 

generally require segregation of those portions of records not 

involving protected presidential communications, says Protect 

Democracy, this panel should “carve out a narrow exception” 

to the non-segregability rule for cases involving allegations of 

misconduct on the part of high-ranking executive branch 

officials. Reply Br. 13 n.5. Protect Democracy points out that 

none of our decisions on segregability and the presidential 

communications privilege involved claims of misconduct. By 

contrast, it asserts, “[t]he focus and purpose of the [Ledgett] 

Memorandum, and the occasion for its authorship, was to 

document the President’s inappropriate conduct.” Appellant 

Br. 35. And evidence of that asserted misconduct “comes from 

a uniquely credible source,” namely Special Counsel Mueller. 

Id. at 34.

There is no precedent binding on this court that recognizes

the misconduct exception Protect Democracy proposes. 

Protect Democracy argues that “it is quite common in a FOIA 

case for a court to disregard a claim of exemption altogether 

where a credible allegation of government misconduct is 

made.” Appellant Br. 31. But the authority it cites concerns a 

different FOIA exemption, covering information compiled for 

law enforcement purposes. Id. (citing Nat’l Archives & Recs.

Admin. v. Favish, 541 U.S. 157, 174 (2004); Roth v. Dep’t of 

Justice, 642 F.3d 1161, 1181 (D.C. Cir. 2011)). That 

exemption excludes such information from FOIA’s ambit

“only to the extent that,” as relevant here, it “could reasonably 

be expected to constitute an unwarranted invasion of personal 
16

privacy.” 5 U.S.C. § 552 (b)(7). To determine whether an 

invasion of privacy is “unwarranted,” courts balance the 

privacy interest against the public interest in disclosure, 

including any potential interest in airing governmental

misconduct. See Favish, 541 U.S. at 174; Roth, 642 F.3d at 

1181. 

No such balancing or consideration of public interest is

called for under Exemption 5. It instead exempts from 

coverage any “inter-agency or intra-agency memorandums or 

letters that would not be available by law to a party other than 

an agency in litigation with the agency,” 5 U.S.C. § 552 (b)(5), 

meaning documents “normally privileged in the civil discovery 

context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 

(1975); see also id. at 149 n.16. And as we have explained, 

insofar as their incorporation into FOIA by Exemption 5 is 

concerned, privileges otherwise potentially overcome by a 

showing of need are not susceptible of such balancing. See

Loving, 550 F.3d at 41 (presidential communications privilege 

precedent “forecloses” the claim that the “public interest in [a] 

document overcomes the privilege”). 

Protect Democracy insists that, in asking us to craft a 

special segregability rule in cases involving credible 

allegations of misconduct, it does not seek to overcome the

privilege—it seeks access only to those parts of a record that 

are not privileged. But insofar as the memo is protected—

meaning privileged—in its entirety, any effort to render the 

document segregable necessarily amounts to an effort to 

overcome the privilege. The cases that Protect Democracy 

cites in arguing misconduct can be relevant to the threshold 

application of the presidential communications privilege in fact 

consider misconduct only at the next step of privilege 

analysis—that is, in determining whether the privilege has been 

overcome. See In re Sealed, 121 F.3d at 746; Dellums, 561 
17

F.2d at 247. Because a FOIA request cannot overcome the 

privilege, such cases are of no help to Protect Democracy here.

Even assuming that Protect Democracy could overcome 

the privilege, its allegations of misconduct would not help it do 

so. Protect Democracy cites district court cases recognizing a 

misconduct exception to the deliberative process privilege. 

See, e.g., Nat’l Whistleblower Ctr. v. Dep’t of Health & Hum. 

Servs., 903 F. Supp. 2d 59, 66-67 (D.D.C. 2012). The cited

basis for the exception is In re Sealed Case, which noted that 

“where there is reason to believe the documents sought may 

shed light on government misconduct, ‘the [deliberative 

process privilege] is routinely denied[.]’” 121 F.3d at 738 

(quoting Texaco Puerto Rico, Inc. v. Dep’t of Consumer 

Affairs, 60 F.3d 867, 885 (1st Cir. 1995)).3

 But In re Sealed 

Case expressly rejected any similar such approach to the 

presidential communications privilege. See id. at 746. Instead,

“a party seeking to overcome [that] privilege seemingly must 

always provide a focused demonstration of need, even when 

there are allegations of misconduct by high-level officials.” Id.

Protect Democracy makes no such showing here. The 

closest it gets is in citing “the public’s compelling need to 

understand the myriad ways their President attempted to 

obstruct justice.” Appellant Br. 32. But the showing that is 

required to overcome the presidential communications 

privilege does not turn “on the nature of the presidential 

3 Other district court decisions have concluded that that language 

from In re Sealed Case is inapplicable in the FOIA context, see Ctr. 

for Pub. Integrity v. Dep’t of Def., 486 F. Supp. 3d 317, 331-32 

(D.D.C. 2020); Judicial Watch, Inc. v. Dep’t of State, 241 F. Supp. 

3d 174, 182-83 (D.D.C. 2017), in light of our statement in In re 

Sealed Case that FOIA requests cannot overcome the deliberative 

process privilege, see 121 F.3d at 737 n.5. We need not resolve that 

issue here. 
18

conduct that the [requested] material might reveal.” Senate 

Select Comm. on Presidential Campaign Activities v. Nixon, 

498 F.2d 725, 731 (D.C. Cir. 1974). “In holding that the 

Watergate Special Prosecutor had provided a sufficient 

showing of evidentiary need to obtain tapes of President 

Nixon’s conversations,” for instance, “the Supreme Court 

made no mention of the fact that the tapes were sought for use 

in a trial of former presidential assistants charged with 

engaging in a criminal conspiracy while in office.” In re 

Sealed, 121 F.3d at 746. What matters instead is “the function 

for which [the] evidence is sought.” Id. It is unclear how 

Protect Democracy—which is neither a litigant in need of 

Ledgett’s memo as evidence nor a governmental entity 

investigating government misconduct, but rather a private 

FOIA plaintiff—could make any showing of such need.

In short, Ledgett’s memo is covered by the presidential 

communications privilege in its entirety, and Protect 

Democracy’s various efforts to get around that privilege’s 

protections through FOIA’s segregability requirement fail. We 

thus affirm the district court’s decision that the government 

properly withheld the memo pursuant to FOIA Exemption 5. 

B. Waiver

Protect Democracy also contends that, even if Ledgett’s 

memo is privileged, the government waived the privilege as to 

matters disclosed in the Mueller Report. It makes its claim of 

waiver under our “official acknowledgment” doctrine. We 

have held that, “[i]f the government has officially 

acknowledged information, a FOIA plaintiff may compel 

disclosure of that information even over an agency’s otherwise 

valid exemption claim.” ACLU v. Dep’t of Def., 628 F.3d 612, 

620 (D.C. Cir. 2011). But not just any acknowledgement will 

do: 
19

For information to qualify as “officially 

acknowledged,” it must satisfy three criteria: (1) the 

information requested must be as specific as the 

information previously released; (2) the information 

requested must match the information previously 

disclosed; and (3) the information requested must 

already have been made public through an official 

and documented disclosure. 

Id. at 620-21. “Prior disclosure of similar information does not 

suffice; instead, the specific information sought by the plaintiff 

must already be in the public domain by official disclosure.” 

Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). 

Because application of the “official acknowledgment” 

doctrine to a record withheld pursuant to Exemption 5 would 

result in release of privileged material, the standard for waiver 

of executive privilege is also relevant to our analysis. Cf. Nat’l 

Sec. Counselors v. CIA, 969 F.3d 406, 410-11 (D.C. Cir. 2020) 

(considering waiver of attorney-client privilege as to 

documents withheld under Exemption 5 separately from the 

“official acknowledgment” doctrine). 

“Since executive privilege exists to aid the governmental 

decisionmaking process, a waiver should not be lightly 

inferred.” In re Sealed, 121 F.3d at 741 (citation omitted). One 

way that executive privilege doctrine imposes a high bar for 

waiver is in limiting waiver by disclosure. In the attorneyclient privilege context, “voluntary disclosure of privileged 

material . . . to unnecessary third parties . . . ‘waives the 

privilege, not only as to the specific communication disclosed 

but often as to all other communications relating to the same 

subject matter.’” Id. (quoting In re Sealed Case, 676 F.2d 793, 

809 (D.C. Cir. 1982)). “But this all-or-nothing approach has 

not been adopted with regard to executive privileges 
20

generally . . . . Instead, courts have said that release of a 

document only waives these privileges for the document or 

information specifically released, and not for related 

materials.” Id. In In re Sealed Case, for instance, we held that

deliberate public release of a final White House Counsel report 

prepared for the President regarding misconduct by the 

Secretary of Agriculture did “not waive the privilege in regard 

to the documents the White House generated in producing the 

ultimate version [of that final report].” Id.

Analyzed under the terms of either the FOIA official 

acknowledgment doctrine or executive privilege waiver 

doctrine generally, the government’s publication of the Mueller 

Report did not waive privilege as to Ledgett’s memo. There 

seems to be no dispute that the Mueller Report constitutes an 

official disclosure, so the question under both doctrines is 

whether the information disclosed is a close enough match to 

the information withheld. See ACLU, 628 F.3d at 620; In re 

Sealed, 121 F.3d at 741. Our in camera review of Ledgett’s 

memo confirms that it is not. “[T]here are substantive 

differences between the disclosed [information] and the 

information that has been withheld.” ACLU, 628 F.3d at 620. 

Protect Democracy’s claim that the report “directly 

describes the contents” of the memo is inaccurate. Reply Br. 

18. The report confirms the existence of that memo and 

describes the contents of the same phone call memorialized by 

Ledgett. But the report and the memo are not a complete 

match; the memo contains details and statements that were not 

disclosed in the report. Appellant suggests that “the Mueller 

Report was drawn from [Ledgett’s memo] directly and from 

the testimony of the men responsible for its creation,” Reply 

Br. 18, but the report itself provides support for only the latter 

half of that proposition: It states that it was based on interviews 
21

with NSA Director Rogers and Deputy Director Ledgett, and 

makes no reference to the memo itself. 

To be sure, the Mueller Report contains much information 

similar to information found in Ledgett’s memo. Protect 

Democracy accordingly argues that the government must 

disclose any parts that “match the facts revealed” in the report. 

Appellant Br. 37. This request, of course, sounds familiar: It 

would in effect require segregability through waiver analysis—

a result in tension with our holding that Ledgett’s memo is 

either privileged in full or not at all. Even assuming that such 

a result were permissible, the matching information in the

report is not “as specific as the information” in the memo. 

ACLU, 628 F.3d at 620. Release of the report thus did not 

effect a waiver as to any subset of information contained in

Ledgett’s memo.

* * *

For the foregoing reasons, we affirm the district court’s 

decision granting the NSA’s motion for summary judgment 

and denying Protect Democracy’s cross-motion for summary 

judgment.

So ordered.