UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

JAMES MADISON PROJECT, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 17-1392 (ABJ)

)

DEPARTMENT OF JUSTICE, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION

Plaintiffs Josh Gerstein, a journalist, and The James Madison Project, an organization 

established “to promote government accountability,” Compl. [Dkt. # 1] ¶ 3, brought this suit

against the Department of Justice (“DOJ”), and the Federal Bureau of Investigation (“FBI”), under 

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. They have requested records 

related to the question of “whether President Donald J. Trump is or ever was a target of, subject 

of, or material witness to any investigation.” Id. ¶ 6. The government issued what is known as a 

“Glomar response,” 1refusing to confirm or deny the existence of responsive records.

DOJ has moved for summary judgment, and plaintiffs opposed the motion and filed their 

own motion for partialsummary judgment. They argue that the President waived the government’s

right to insist on confidentiality with a Glomar response by making a series of public statements, 

 

1 The term “Glomar response” originates from the Central Intelligence Agency’s (“CIA”) 

refusal to confirm or deny the existence of records in response to a FOIA request relating to “the 

Hughes Glomar Explorer, a ship used in a classified [CIA] project ‘to raise a sunken Soviet 

submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications 

equipment onboard for analysis by United States military and intelligence experts.’” Roth v. DOJ, 

642 F.3d 1161, 1171 (D.C. Cir. 2011), quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 

1981).
2

including tweets, in which plaintiffs contend he officially acknowledged the existence of 

responsive records. Upon review of the full record, including the agency’s affidavits, the parties’ 

supplemental filings, and each of the alleged “official statements,” the Court will grant defendant’s 

motion for summary judgment, and it will deny plaintiffs’ motion. The government has met its 

burden of establishing that the information withheld is protected under FOIA Exemption 7(A), and 

none of the President’s statements satisfy the “stringent test required to establish . . . a waiver.” 

Pub. Citizen v. Dep’t of State, 11 F.3d 198, 199 (D.C. Cir. 1993).

BACKGROUND

On May 12, 2017, plaintiffs submitted a FOIA request to DOJ. Ex. A to Castellano Decl.

[Dkt. # 11-2] (“FOIA Request”). They sought the following records “created, received and/or 

maintained by the Office of Attorney General (“AG”), the Office of the Deputy Attorney General 

(“DAG”), and/or the Office of the Associate Attorney General (“AAG”)”:

(1) Any records memorializing discussions between Department of Justice 

(“DOJ”) staff and FBI staff regarding whether President Trump is or ever 

was a target of, subject of or material witness to any investigation; and 

(2) Any records memorializing disclosures to President Trump or any White 

House staff regarding whether President Trump is or ever was a target of, 

subject of or material witness to any investigation;

(3) Any records memorializing discussion among DOJ staff regarding the 

appropriateness of informing President Trump if he is or ever was a target 

of, subject of or material witness to any investigation; and

(4) Any records memorizing [sic] discussion between DOJ staff and FBI 

staff regarding the appropriateness of informing President Trump if he is or 

ever was a target of, subject of or material witness to any investigation.

Id. 

Plaintiffs asked for records from the period of January 1, 2016, to the date of DOJ’s search. 

Id. They submitted an identical FOIA request to the FBI, a component of DOJ, on May 12, 2017. 
3

Ex. A to Hardy Decl. [Dkt. # 11-1] (“FOIA Request”). As part of their request, plaintiffs advised 

the agencies that the letter in which President Trump terminated then-FBI Director James Comey 

“stated that Director Comey had informed him on three separate occasions that he (President 

Trump) was not under investigation.” FOIA Request at 1. The requestors also noted that in a 

subsequent interview with NBC News, the President stated that he asked Comey, “[A]m I under 

investigation?” and that Comey responded, “You are not under investigation.” Id. at 1–2.

On June 20, 2017, the FBI issued its Glomar response asserting that the agency could 

“neither confirm nor deny the existence of any records” responsive to plaintiffs’ request pursuant 

to FOIA Exemptions 7(A) and 7(E). Ex. C to Hardy Decl. [Dkt. # 11-1]. Plaintiffs 

administratively appealed this decision, but the agency’s final response was affirmed. Ex. D to 

Hardy Decl. [Dkt. # 11-1]; Ex. C to Hardy Decl. [Dkt. # 11-1]. The DOJ did not issue a separate

response to the same FOIA request. Compl. ¶ 22. 

On July 14, 2017, plaintiffs filed a two-count complaint against DOJ. See Compl. In count 

one, plaintiffs challenged DOJ’s failure to respond to their request, and in count two they 

challenged the FBI’s response. Id. ¶¶ 23, 32. After the suit was filed, DOJ responded by also 

issuing a Glomar response, based solely on FOIA Exemption 7(A). Ex. C to Castellano Decl.

[Dkt. # 11-2]. 

Defendant moved for summary judgment, arguing that its Glomar response was justified 

under FOIA Exemption 7(A) and that the existence of responsive records had not been officially 

acknowledged. Def.’s Mot. for Summ. J. [Dkt. 11] (“Def.’s Mot.”). Plaintiffs then cross-moved

for partial summary judgment and identified additional statements from President Trump which 

they argued waived the DOJ’s Glomar response. Pls.’ Cross. Mot. for Partial Summ. J. 

[Dkt. # 13]; Pls.’ Mem. in Supp. of Pls.’ Mot. [Dkt. # 13-1], (collectively, “Pls.’ Cross-Mot.”). 
4

After the motions were fully briefed, plaintiffs moved to supplement the factual record with more 

statements, including tweets, from President Trump which they contend constitute additional 

official disclosures. See Mot. For Leave to Suppl. the Factual Record [Dkt. # 21] (“First Factual 

Suppl.”); Mot. For Leave to Suppl. the Record [Dkt. # 22] (“Second Factual Suppl.”); Mot. for 

Leave to Suppl. the Record [Dkt. # 24] (“Third Factual Suppl.”); Mot. for Leave to Suppl. the 

Record [Dkt. # 25] (“Fourth Factual Suppl.”).2 Most recently, plaintiffs filed motions to again

supplement the record with additional statements from the President and they also requested oral 

argument. Mot. for Leave to Suppl. the Record and for Oral Argument [Dkt. # 28] (“Fifth Factual 

Suppl.”); Mot. for Leave to File Suppl. the Record [Dkt. # 29] (“Sixth Factual Suppl.”). The Court 

granted the motions to supplement, but it has determined that there is no need for oral argument. 

STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The party seeking summary judgment “bears the initial responsibility of informing the 

district court of the basis for its motion, and identifying those portions of the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary 

 

2 The Court permitted plaintiffs to supplement the record multiple times, but it cautioned 

that the “ruling[s] should not be interpreted as a determination by the Court that these general 

statements, or any other statements by the President that have been brought to the Court’s attention 

in this case, are in fact material or that they constitute an official disclosure of the existence or 

non-existence of records responsive to the particular FOIA request in this case.” Min. Order (Jan. 

30, 2018); see also Min. Order (Mar. 1, 2018); Min. Order (May 7, 2018); Min. Order (June 8, 

2018). 
5

judgment, the non-moving party must “designate specific facts showing that there is a genuine 

issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with

cross-motions for summary judgment, it analyzes the underlying facts and inferences in each 

party’s motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 247 (1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Id., 

at 247–48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving 

party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; 

Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

FOIA cases are typically and appropriately decided on motions for summary judgment. 

Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases, the 

agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). 

The Court may award summary judgment based solely on information provided in an agency’s 

affidavits or declarations that identify “the justifications for nondisclosure with reasonably specific 

detail, demonstrate that the information withheld logically falls within the claimed exemption, and 

are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” 

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits or 

declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely 

speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., 

Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 

692 F.2d 770, 771 (D.C. Cir. 1981). 
6

ANALYSIS

FOIA requires government agencies to release records upon request in order to “ensure an 

informed citizenry, vital to the functioning of a democratic society, needed to check against 

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & 

Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request 

for records which (i) reasonably describes such records and (ii) is made in accordance with 

published rules . . . shall make the records promptly available to any person,” 

5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions. 

See 5 U.S.C. § 552(b); FBI v. Abramson, 456 U.S. 615, 630 (1982). This framework “represents 

a balance struck by Congress between the public’s right to know and the government’s legitimate 

interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 

918, 925 (D.C. Cir. 2003). When an agency withholds documents or parts of documents, it must 

explain what it is withholding and the statutory exemptions that apply. See Vaughn v. Rosen, 484 

F.2d 820, 825–28 (D.C. Cir. 1973). 

In some instances, however, the government may refuse to even confirm or deny the 

existence of responsive records. Wolf v. CIA., 473 F.3d 370, 374 (D.C. Cir. 2007). This is called 

a “Glomar response.” Such a response is appropriate when revealing the very fact that an agency 

possesses responsive records would itself “cause harm cognizable under [a] FOIA exception.” Id., 

quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (internal quotation marks omitted).

To justify a Glomar response, the agency must supply the court with a detailed affidavit 

that explains why it cannot provide a substantive response pursuant to a FOIA exemption. Elec. 

Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012). To determine whether a Glomar
7

response “fits a FOIA exemption, courts apply the general exemption review standards established 

in non-Glomar cases.” Wolf, 473 F.3d at 374.

I. FOIA Exemption 7(A)

FOIA Exemption 7(A) permits agencies to withhold “records or information compiled for 

law enforcement purposes, but only to the extent that the production of such law enforcement 

records or information . . . could reasonably be expected to interfere with enforcement 

proceedings.” 5 U.S.C. § 552(b)(7)(A).

Plaintiffs do not dispute that the information sought is covered by this exemption. Instead, 

they argue 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. See Pls.’ Cross-Mot. at 5–13. Nonetheless, an agency bears the 

ultimate burden of proving that a FOIA exemption applies, Tax Analysts, 492 U.S. at 142 n.3, so 

the Court will begin its analysis there before moving on to the question of whether the exemption 

has been waived. 

 To justify the withholding of records under Exemption 7(A), DOJ must “demonstrate that 

‘disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are 

(3) pending or reasonably anticipated.’” Citizens for Responsibility & Ethics in Wash. v. DOJ, 

746 F.3d 1082, 1096 (D.C. Cir. 2014) (“CREW”), quoting Mapother v. DOJ, 3 F.3d 1533, 1540 

(D.C. Cir. 1993). In creating the exemption, Congress recognized that “law enforcement agencies 

ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their 

investigations or placed at a disadvantage when it [comes] time to present their case.” CREW, 746 

F.3d at 1096, quoting Robbins Tire & Rubber Co., 437 U.S. at 224.
8

The FBI’s declarant confirmed that on March 20, 2017, the then-FBI Director, James

Comey, testified before the House Permanent Select Committee on Intelligence (“HPSCI”) that 

the agency was

investigating the Russian government’s efforts to interfere in the 2016 

presidential election, and that includes investigating the nature of any link 

between individuals associated with the Trump campaign and the Russian 

government and whether there was any coordination between the campaign 

and Russia’s efforts. 

Hardy Decl. [Dkt. # 11-1] ¶ 19.

3

 But at that time, the FBI Director cautioned that “[b]ecause it is 

an open, ongoing investigation and is classified, I cannot say more about what we are doing and 

whose conduct we are examining.” Id. 

The FBI’s declarant avers that the “Russia investigation” is still ongoing, so to the extent

plaintiffs’ request can be interpreted as a request for records pertaining to that effort, merely 

confirming the existence of responsive records could significantly hamper the investigation. Id. 

¶¶ 20–21. 

[O]fficial confirmation of who is or who is not considered a subject or 

witness in an investigation would also alert others – including other 

potential subjects and witnesses – about the focus and scope of the 

investigation, which could influence their behavior and testimony in ways 

that adversely affects the investigation. Specifically, it would arm them 

with valuable information necessary to alter or offensively structure their 

testimony, and also to take defensive actions to conceal their activities, 

elude detection, and destroy, adulterate, or fabricate evidence. It would also 

expose any potential witnesses or sources to harassment, intimidation, or 

coercion. This is true regardless of whether or not responsive records exist. 

That is, regardless of whether a particular individual is or is not subject or 

witness in the pending investigation, such information provides those intent 

on interfering with the investigation additional pieces of information 

necessary to target their behaviors in such a way as to maximize the effect 

of any efforts to undermine the investigation. 

 

3 Citing, James B. Comey, Statement Before the HPSCI, Russian Active Measures 

Investigation, https://www.fbi.gov/news/testimony/hpsci-hearing-titled-russian-active-measuresinvestigation (“Comey Congressional Testimony”). 
9

Id. ¶ 26. 

The FBI declarant adds that if plaintiffs’ request is interpreted to extend beyond the Russia 

investigation, it would relate to a pending investigation that the agency has not publicly 

acknowledged. Id. ¶ 27. The agency asserts that prematurely revealing an investigation carries 

the same risks identified above and could ultimately interfere with the agency’s ability to 

determine whether a crime was committed. Id. In further support of the motion for summary 

judgment, DOJ submitted a similar declaration. See Castellano Decl. [Dkt. # 11-2] ¶¶ 12–13. 

Based on the Court’s review of defendant’s declarations, it concludes that the agency has

supplied sufficient information to support its claim that merely revealing whether or not responsive 

records exist would give rise to a risk of interference with law enforcement proceedings that are 

pending or reasonably anticipated; therefore, a Glomarresponse is justified under Exemption 7(A). 

See CREW, 746 F.3d at 1096; 5 U.S.C. § 552(b)(7)(A).

II. The Official Acknowledgment and Public Domain Doctrine

Once the defendant has met its burden of establishing that the FOIA exemption applies, 

the burden shifts to plaintiffs to prove that the government waived its right to invoke the exemption 

through a prior official statement. See Pub. Citizen, 11 F.3d at 201. 

It is well established that a FOIA plaintiff may compel disclosure of information “even 

over an agency’s otherwise valid exemption claim” if the government previously “officially 

acknowledged” the information. ACLU v. DOD, 628 F.3d 612, 620 (D.C. Cir. 2011). The

rationale behind the doctrine is that once information has become public, any damage the agency 

fears from disclosure has already been sustained. See Niagara Mohawk Power Corp. v. U.S. Dep’t 

of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999). This is commonly referred to as an “official 
10

acknowledgement” challenge or the “public domain exception.” See ACLU v. CIA, 710 F.3d at

422, 426–27 (D.C. Cir. 2013) (using the terms interchangeably) (“ACLU”). 

A plaintiff mounting this type of challenge “bears the initial burden of pointing to specific 

information in the public domain that duplicates that being withheld.” Pub. Citizen, 11 at 201; see 

also Mobley v. CIA., 806 F.3d 568, 583 (D.C. Cir. 2015) (same).

The D.C. Circuit has imposed a “strict test” to be applied to claims of official disclosure. 

Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). Information is officially acknowledged by 

an agency where: (1) “the information requested [is] as specific as the information previously 

released,” (2) the requested information “match[es] the information previously disclosed,” and (3) 

the requested information was already “made public through an official and documented 

disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). 

In Glomar cases, however, a plaintiff need not show that that the actual contents of the 

particular records sought have been disclosed; rather they must establish that the agency has 

previously acknowledged the fact of the existence of responsive records. Marino v. DEA, 685 F.3d 

1076, 1081 (D.C. Cir. 2012). 

The D.C. Circuit has articulated the official acknowledgment test in Glomar cases as 

follows: 

[I]f the prior disclosure establishes the existence (or not) of records 

responsive to the FOIA request, the prior disclosure necessarily matches 

both the information at issue – the existence of records – and the specific 

request for that information.

Wolf, 473 F.3d at 379. This standard has been reaffirmed by the D.C. Circuit in subsequent Glomar 

cases. See Moore, 666 F.3d at 1333 (holding that a plaintiff must “pinpoint an agency record that 

both matches the plaintiff’s request and has been publicly and officially acknowledged by the 
11

agency.”); see also Mobley v. CIA., 806 F.3d 568, 583 (D.C. Cir. 2015) (re-stating the three-part 

Fitzgibbon official acknowledgement test). 

The D.C. Circuit has repeatedly emphasized the importance of the applying this test with 

rigor, because “the fact that information exists in some form in the public domain does not 

necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption.” 

Wolf, 473 F.3d at 378, citing Fitzgibbon, 911 F.2d. at 766. Therefore, “[p]rior 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.” Morley v. CIA., 508 F.3d 1108, 1124 (D.C. Cir. 

2007) (emphasis in original). 

If a court determines that a Glomar response has been waived because the information was 

previously officially acknowledged, then the government must either: “(1) disclose the record to 

the requester or (2) establish that its contents are exempt from disclosure and that such exemption 

has not been waived.” Moore, 666 F.3d at 1333. In other words, a failed Glomar response “does 

not mark the end” of a case. ACLU, 710 F.3d at 432. Instead, the case is remanded to the agency 

to process the FOIA request and assert any exemptions to disclosure on a document by document 

based on their content. Wolf, 473 F.3d at 379–80. 

III. The Statements

Plaintiffs 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. Indeed, 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, much less whether any particular 

individuals had been designated to be targets, subjects, or witnesses: “Because it is an open, 
12

ongoing investigation and is classified, I cannot say more about what we are doing and whose 

conduct we are examining.” Comey Congressional Testimony. 

Plaintiffs base their case solely on statements made by President Trump, including some 

of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist 

based on the President’s summaries of conversations he had with the former FBI director as well 

as a number of vague, and sometimes hostile, comments made on social media concerning the 

investigation. 

The D.C. Circuit has recognized that a President may be capable of waiving an agency’s 

Glomar response in some circumstances. Although typically a “[d]isclosure by one federal agency 

does not waive another agency’s right to assert a FOIA exemption,” Mobley, 806 F.3d at 583, a 

prior disclosure “made by an authorized representative of the agency’s parent,” including the 

President, can trigger a waiver. ACLU, 710 F.3d at 426 n.7.

4

 However, this does not mean that 

any statement from the President automatically waives an agency’s Glomar response. The Court 

 

4 Three recent district court cases from this Circuit have interpreted this footnote to mean 

that the President can waive an agency’s Glomar response because he is the head of the executive 

branch. Judicial Watch, Inc. v. DOJ, 293 F. Supp. 3d 124, 128 n.4 (D.D.C. 2018) (noting that 

although the official disclosure must come from the specific agency the FOIA request was made 

to, “the D.C. Circuit has stated that an acknowledgment of records’ existence by a parent agency 

– such as the President as head of the Executive Branch – is imputed to its component agencies”), 

citing ACLU, 710 F.3d at 429 n.7; James Madison Project v. DOJ, 302 F. Supp. 3d 12, 24 (D.D.C. 

2018), recons. denied in part, 17-CV-00144, 2018 WL 3956426 (D.D.C. Aug. 16, 2018) (“The 

D.C. Circuit has recognized that ‘[a] disclosure made by the President, or by [an] advisor acting 

as instructed by the President,’ is attributable to executive branch agencies for purposes of the 

official acknowledgement doctrine.”) (internal quotation marks omitted), quoting ACLU, 710 F.3d 

at 429 n.7; Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45, 57 (D.D.C. 2015) (noting that NSA 

rightfully concedes, based on case law, that the President’s statement to the press and 

administration’s white paper were attributable to the NSA), citing ACLU, 710 F.3d at 429 n.7.

In each of these cases, however, the court found that the President’s statement had not 

waived the agency’s Glomar response because the statement failed to meet the three criteria of the 

official disclosure test. 
13

must consider whether the President’s statement meets the other requirements of the official 

acknowledgment test, including the rule that the information publicly disclosed must “match” the 

information sought in the request. Fitzgibbon, 911 F.2d at 765. 

Plaintiffs bear the burden of overcoming the government’s Glomar response by pointing 

to the “specific information in the public domain that duplicates that being withheld,” Pub. Citizen, 

11 F.3d at 201, and here, they have directed the Court’s attention to twelve statements by the 

President which they describe as relating to the “Russian collusion” investigation or the alleged 

“obstruction of justice” investigation. Pls.’ Cross-Mot. at 4. Based on the individual analysis to 

be set forth below, the Court finds that none of the statements identified by the plaintiffs satisfy 

the stringent legal test for an official acknowledgment. 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. Moreover, the Court cannot infer that the President based any of his 

assertions on FBI and DOJ records because he makes no reference to any such material in his 

statements, Moore, 666 F.3d. at 1333, and none of the statements provided are “tantamount to an 

acknowledgment” that the FBI or DOJ has responsive records. ACLU, 710 F.3d at 431.

5

1. May 9, 2017 Statement in Comey Termination Letter

Plaintiffs point to President Trump’s May 9, 2017 letter to former FBI Director James 

Comey. In terminating the Director from his position, the President declared: 

While I greatly appreciate you informing me, on three separate occasions, 

that I am not under investigation, I nevertheless concur with the judgment 

of the Department of Justice that you are not able to effectively lead the 

Bureau. 

 

5 The Court does not need to reach the question of whether a Presidential statement on 

Twitter, standing alone, can or should be deemed to be an official statement by the executive 

branch for these purposes, since the tweets identified fall far short of being official 

acknowledgments for other reasons. 
14

Pls.’ Cross-Mot. at 5.

6

This sentence implicitly asserts that there were certain exchanges between the then FBI 

director and the President concerning the investigation, but the highly summary introductory 

clause does not provide any details on how information was transmitted or what was 

communicated. There is no mention of any “agency record” or written memorandum that was 

shared with the President or was referenced in the conversation. See Moore, 666 F.3d at 1333. 

Moreover, the general phrase “not under investigation” does not mirror the specificity of the 

request, which seeks records on whether the President “is or ever was a target of, subject of 

 

6 Citing, Trump’s letter firing FBI Director James Comey, CNN (May 10, 2017),

https://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/index.html. 
15

or material witness.” 7 FOIA Request. These terms have specific meaning that is not captured by 

the President’s language. Plaintiffs contend that this is an “overly-literal” interpretation, Pls.’ 

Cross-Mot. at 10, but the “insistence on exactitude” is what the official acknowledgment doctrine

demands. Wolf, 473 F.3d at 378. 

Plaintiffs acknowledge that the specificity requirements articulated in Wolf govern this 

case, but they argue that the D.C. Circuit’s ruling in ACLU established some “latitude” on how 

strictly to apply the test. Pls.’ Reply in Supp. of Pls.’ Cross-Mot. [Dkt. # 17] (“Pls.’ Cross-Reply”)

at 3. They contend that the ACLU ruling permits courts to “infer” the existence or non-existence 

of responsive records, even when the official disclosure does not specifically mention any records, 

 

7 The President’s statements do not speak in terms of “target, subject, or material witness” 

at all. The terms “target” and “subject” are terms of art that are used in federal law enforcement 

investigations, and they have specific definitions that are set out in the U.S. Attorneys’ Manual 

§ 9-11.151:

A “target” is a person as to whom the prosecutor or the grand jury has 

substantial evidence linking him or her to the commission of a crime and 

who, in the judgment of the prosecutor, is a putative defendant. An officer 

or employee of an organization which is a target is not automatically 

considered a target even if such officer’s or employee’s conduct contributed 

to the commission of the crime by the target organization . . . 

A “subject” of an investigation is a person whose conduct is within the 

scope of the grand jury’s investigation.

Plaintiffs use the words loosely, and they appear to be unaware that the third category 

should probably be “witness,” not “material witness.” The term “material witness” is not defined 

in this portion of the USAM, and it is a designation that serves an entirely different purpose and 

appears to have no applicability to the investigation at issue in this case, though it appears in the 

Bail Reform Act. See 18 U.S.C. § 3144 (“If it appears from an affidavit filed by a party that the 

testimony of a person is material in a criminal proceeding, and if it is shown that it may become 

impracticable to secure the presence of the person by subpoena, a judicial officer may order the 

arrest of the person and treat the person in accordance with the provisions of section 3142 of this 

title.”); see also Fed. R. Crim. P. 15(a)(2).

A “witness,” in the context of law enforcement investigations, on the other hand, can 

include an individual who is summoned to testify before a grand jury. 
16

if to conclude otherwise would be “neither logical nor plausible.” Id. 

While the D.C. Circuit’s opinion in the ACLU case does indicate that a court may infer the 

existence or non-existence of records from an official statement in certain situations, this is not 

one of those situations. In ACLU, the plaintiffs sought the release of records from the CIA 

regarding the operation of drones by the CIA and Armed Forces, and the agency invoked a Glomar

response. 710 F.3d at 425, 427. The agency argued that it had never officially disclosed the 

existence of any records that would show whether the CIA in particular had any involvement or 

interest in the drone strikes in question, and it explained that it invoked Glomar to avoid either 

confirming or denying that interest. Id. at 430–431. The D.C. Circuit Court found that public 

statements made by the President of the United States (in a live internet forum), the President’s 

counter-terrorism advisor (in a public speech), and the Director of the CIA (in a public speech) 

officially disclosed the existence of the CIA’s interest in drones, making the CIA’s Glomar

response illogical. Id. at 429–31. Because the statements made by the President, the counterterrorism advisor, and, especially, the CIA Director were so specific,8

the Court found that they 

were “tantamount to an acknowledgment that the CIA has documents” matching the plaintiffs’ 

request, making it “neither logical nor plausible to maintain that the Agency does not have any 

documents relating to drones.” Id. at 431 (internal quotation marks omitted). 

Here, both the substance of the President’s official statement and the context is 

distinguishable. First, the statements that formed the basis for the finding in ACLU were lengthy 

and highly specific. Second, in this case, the government’s justification for withholding 

 

8 When asked about remote drone strikes, the then-Director of the CIA stated, “because these 

are covert and secret operations I can’t go into particulars. I think it does suffice to say that these 

operations have been very effective because they have been very precise in terms of the 

targeting . . . I can assure you that in terms of a particular area, it is very precise.” ACLU, 710 F.3d 

at 430. 
17

information is not merely based on a desire to keep its “interest” in the subject matter confidential; 

the agency has identified the particular harms that could flow from revealing the specific 

information sought – the “identities of subjects or witnesses, or the scope” of the ongoing Russia 

investigation. Hardy Decl. ¶¶ 23–25; see also Castellano Decl. ¶¶ 13–14. Third, the Court in 

ACLU relied on a combination of statements, including those made by the President, but it placed 

a particular emphasis on the public statements made by the CIA itself.

9

 See ACLU, 710 F.3d at 

431. Here, plaintiffs rely solely on statements made by the President, and none from the DOJ or 

the FBI. This difference bears upon the resolution of the official acknowledgment question in this 

case because in several of the statements, the President appears to be speaking in opposition to, 

rather than on behalf of, the investigation itself and the agencies involved. 

So while a President may be included among the executive branch officials who can waive 

the confidentiality needed to sustain an agency’s Glomar response, it is still necessary that any 

statement proffered meet the matching and specificity requirements. When a plaintiff asks a court 

to take the extraordinary step of looking past the fact that an official statement does not on its face 

reveal whether responsive records exist, then it is imperative that both the context and substance 

of the official disclosures “leave no doubt” as to that fact, see ACLU, 710 F.3d at 429, 

 

9 After quoting the CIA director’s remarks, the Court in ACLU reasoned: 

[T]he Director spoke directly about the precision of targeted drone strikes, 

the level of collateral damage they cause, and their usefulness in comparison 

to other weapons and tactics. Given those statements, it is implausible that 

the CIA does not possess a single document on the subject of drone strikes. 

Unless we are to believe that the Director was able to “assure” his audience 

that drone strikes are “very precise and . . . very limited in terms of collateral 

damage” without having examined a single document in his agency's 

possession, those statements are tantamount to an acknowledgment that the 

CIA has documents on the subject. 

ACLU, 710 F.3d at 431. 
18

and that the public statements are “tantamount to an acknowledgment that the [agency] had 

documents on the subject.” Id. at 431. The President’s summary reference to what he may have 

been told by Director Comey does not meet that high bar. 

2. May 11, 2017 NBC News Interview 

Plaintiffs have also pointed to excerpts from the President’s May 11, 2017 interview with 

NBC reporter Lester Holt. During the conversation, the President was asked about the termination 

of the FBI Director two days before:

LESTER HOLT: Let me ask you about your termination letter to Mr. Comey. You 

write: “I greatly appreciate you informing me on three separate occasions that I 

am not under investigation.” Why did you put that in there? 

DONALD TRUMP: Because he told me that. I mean he told me it.

LESTER HOLT: He told you weren’t under investigation [OVER TALK] 

regardless –

DONALD TRUMP: Yeah and I’ve – I’ve heard that from others I think –

LESTER HOLT: Was it in a phone call, did you meet face to face? 

DONALD TRUMP: Uh, I had a dinner with him. He wanted to have dinner because 

he wanted to stay on. We had a very nice dinner at the White House [OVER TALK] 

LESTER HOLT: He asked for the dinner? 

DONALD TRUMP: A dinner was arranged, I think he asked for the dinner. And 

he wanted to stay on as the FBI head. And I said I’ll, you know, consider and we’ll 

see what happens – But we had a very nice dinner. And at that time, he told me you 

are not under investigation. [OVER TALK] 

LESTER HOLT: That was –

DONALD TRUMP: Which I knew anyway. 

LESTER HOLT: That was one meeting. What was it, what were the other two? 

[OVER TALK] 
19

DONALD TRUMP: First of all, when you’re under investigation, you’re given all 

sorts of documents and everything. I knew I wasn’t under and I heard it was stated 

at the committee, at some committee level, that I wasn’t. Number one. 

LESTER HOLT: So that didn’t come directly from him?

DONALD TRUMP: [OVER TALK] Then during a phone call he said it. And then 

during another phone call he said it. So he said it once at dinner and then he said it 

twice during phone calls. 

LESTER HOLT: Did you call him? 

DONALD TRUMP: Uh, in one case I called him and one case he called me. 

LESTER HOLT: And did you ask, “Am I under investigation?”

DONALD TRUMP: I actually asked him, yes. I said, “If it’s possible, would you 

let me know am I under investigation?” He said you are not under investigation.

LESTER HOLT: But he’s, he’s given sworn testimony that there is an ongoing 

investigation into the Trump campaign and possible collusion with the Russian 

government? You were the centerpiece of the Trump campaign so [OVER TALK] 

was he being truthful when he says you weren’t under investigation? 

DONALD TRUMP: [OVER TALK] Well, all I can tell you is, well I know what, I 

know that I’m not under investigation. Me. Personally. I’m not talking about 

campaigns. I’m not talking about anything else. I’m not under investigation.

Pls.’ Cross-Mot. at 7 (emphasis in original).10

The President’s statements provide more details on the “three occasions” referenced in the 

termination letter. He asserts that Comey told him he was not “under investigation” once at a

dinner and during two phone calls. But again, none of these statements summarizing conversations 

with the FBI official explicitly refer to the existence of any record within the agency, or necessarily 

 

10 Citing, Partial transcript: NBC New Interview with Donald Trump, CNN (May 11, 2017), 

https://www.cnn.com/2017/05/11/politics/transcript-donald-trump-nbc-news/index.html (“NBC 

Interview Transcript”). 
20

imply the existence of such records.11 And the President’s vague references to what he had heard 

from “others” and what was said at “some committee level” as part of the basis for his belief that 

he is not under investigation muddy the waters and do not point to the existence of responsive 

records within the FBI or DOJ. NBC Interview Transcript. 

Because plaintiffs did not “pinpoint an agency record that both matches the plaintiff’s 

request and has been publicly and officially acknowledged by the agency” the Court finds that the 

President did not waive defendant’s Glomar response during the televised interview. Moore, 666 

F.3d at 1333. The Court also finds that ACLU is inapplicable here for the reasons stated above

and declines to draw inferences from this insubstantial record on whether responsive records exist. 

Based on these statements it does not inexorably follow that the FBI and DOJ possess records on 

whether the President is or ever was the subject of, target of or material witness to a DOJ 

investigation.

12

 

11 Indeed, the President seems to suggest that he knows he is not under investigation because 

he was not provided with records: “First of all, when you’re under investigation, you’re given all 

sorts of documents and everything.” NBC Interview Transcript.

12 The same reasoning applies to the statement plaintiffs recently identified concerning the 

President’s August 30, 2018 tweet: “The only thing James Comey ever got right was when he said 

that President Trump was not under investigation!” Pls.’ Fifth Factual Suppl. Because the 

statement does not expressly identify a record, does not mirror the information sought in the 

request, see Wolf, 473 F.3d at 378–79, and is not “tantamount to an acknowledgment” that the 

agency has documents, the Court finds that it does not constitute an official acknowledgment. 

ACLU, 710 F.3d at 431.
21

3. July 19, 2017 New York Times Interview

Plaintiffs assert that the President “reiterated” that he was not being “personally 

investigated” in a July 19, 2017 interview with the New York Times in which he said with respect 

to “the Russian investigation,” “it’s not on me.” Pls.’ Cross-Mot. at 7.13

This vague statement, plainly does not match the information sought in the FOIA request, 

Fitzgibbon, 911 F.2d at 765, nor does it acknowledge or clearly implicate the existence of 

responsive records housed within the FBI or DOJ.

4. October 20, 2017 Statement to Reporters 

The next statement fails for similar reasons. Plaintiffs assert that on October 20, 2017, 

President Trump told reporters that “he had not been asked by Special Counsel Robert Mueller to 

be interviewed as part of any investigation.” Pls.’ Cross-Mot. at 8.

14

 This statement does not begin 

to align with the FOIA request, and it does not reveal the existence of the particular records sought.

And in fact, the statement quoted in the article is even more vague than that. The article 

reports that when a reporter asked the President if he would do an interview with the Special 

Counsel, he responded, “I don’t know. I mean – nobody’s asked me to do that.” The Hill Article.

This vague statement asserting a lack of personal knowledge, which concerns a request to be 

interviewed and not a formal designation as a target, subject, or witness, and makes no reference 

to a specific record that might match the FOIA request, does not begin to meet the “stringent test 

required” to establish a waiver. Pub. Citizen, 11 F.3d at 199.

 

13 Citing, Excerpts from The Time’s Interview with Trump, N.Y. Times (July 19, 2017), 

https://www.nytimes.com/2017/07/19/us/politics/trump-interview-transcript.html.

14 Citing, Jesse Byrnes, Trump: ‘I don’t know’ if I’ll interview with Mueller for Russia probe,

The Hill (Oct. 20, 2017), http://thehill.com/homenews/administration/356481-trump-i-dontknow-if-ill-interview-with-mueller (“The Hill Article”). 
22

5. June 9, 2017 Press Statement 

Plaintiffs have also supplied statements they allege are related to an “obstruction of justice” 

investigation against the President which the FBI has neither confirmed nor denied. Pls.’ CrossMot. at 8. They cite a June 9, 2017, press statement from President Trump asserting that “he would 

be willing to testify under oath about the conversations he had with Director Comey prior to firing 

him on May 9, 2017.” Pls.’ Cross-Mot. at 8.15

Plaintiffs’ rush to inform the Court of every Presidential utterance such as this was not 

well-advised. There is obviously no “match” between this statement and the information sought; 

at best, the statement recognizes that the conversations with Comey may be a subject of an inquiry. 

The statement to the press expressing a willingness to “testify” is just that, and it does not constitute 

an official statement revealing the existence of records relating to whether he “is or ever was a 

target of, subject of or material witness to any investigation.” FOIA Request.

6. June 16, 2017 Tweet

Plaintiffs point to a June 16, 2017 tweet in which the President exclaims: 

I am being investigated for firing the FBI director by the man who told me 

to fire the FBI Director! Witch hunt

Pls.’ Cross-Mot. at 8.16

Plaintiffs claim that this tweet officially acknowledged the existence of the “obstruction of 

justice investigation” against the President. Pls.’ Cross-Reply at 13. But they have conceded that 

the President “exclusively” relied on a Washington Post article published two days earlier when 

 

15 Citing, Dan Merica, Trump: I’m willing to testify under oath about Comey Claims, CNN 

(June 9, 2017), https://www.cnn.com/2017/06/09/politics/trump-news-conference/index.html.

16 Citing, Donald Trump (@realDonaldTrump), Twitter (Jun. 16, 2017, 6:07 AM), 

https://twitter.com/realdonaldtrump/status/875701471999864833.
23

he made this declaration. Pls.’ Resp. to Def.’s Notice of Suppl. Auth. [Dkt. # 19] at 4.

17

 And that 

article in turn relied on unnamed sources to report that the Special Counsel was allegedly 

investigating the President for obstruction. Since the President’s statement does not explicitly 

mention any records, and plaintiffs ruled out the possibility that it was even premised on 

government information, let alone DOJ or FBI records, the statement cannot be read as disclosing 

the existence of responsive records. 

The law is clear that “an agency’s official acknowledgement of information by prior 

disclosure . . . cannot be based on mere public speculation, no matter how widespread.” Wolf, 473 

F.3d at 378, citing Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). This is true

even when that speculation is repeated (or re-tweeted) by the President. By acknowledging that 

the President was responding to the Washington Post article when he expressed his shock and 

disbelief, and that he was not broadcasting government information, plaintiffs have conceded that 

the President’s statement cannot be deemed to be an official waiver. As the D.C. Circuit has 

advised, “it is one thing for a reporter or author to speculate or guess that a thing may be so or 

even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position 

 

17 Citing, Delvin Barrett, Special Counsel is investigating Trump for possible obstruction of 

justice, officials say, Wash. Post (Jun. 14, 2017), https://www.washingtonpost.com/world/

national-security/special-counsel-is-investigating-trump-for-possible-obstruction-of-justice/2

017/06/14/9ce02506-5131-11e7-b064-828ba60fbb98_story.html?utm_term=.385adbb1ea0b.
24

to know of it officially to say that it is so.” Fitzgibbon, 911 F.2d at 765.18 Because the President’s

tweet amounts to speculation, it does not overcome defendant’s Glomar response. 

After filing their cross-motion, plaintiffs supplemented the factual record with six

additional statements which they argue waived the government’s Glomar response as it relates to 

what they label as the “Russian collusion” and the “obstruction of justice” investigations. First 

Factual Suppl. at 3. 

7. January 24, 2018 Press Statements

On January 24, 2018, President Trump engaged in the following discussion with reporters 

regarding the Special Counsel’s investigation: 

REPORTER: Are you going to talk to Mueller? 

TRUMP: I’m looking forward to it, actually. 

REPORTER: Do you have a date set? Do you have a date set, Mr. President? 

TRUMP: There’s been no collusion whatsoever. There’s no obstruction 

whatsoever. And I’m looking forward to it . . .

REPORTER: Do you have a date set, Mr. President? 

TRUMP: I don’t know, no. I guess you’re talking about two or three weeks, but I 

would love to do it. 

REPORTER: In person? 

TRUMP: You know, again, it’s — I have to say — subject to my lawyers and all 

of that — but I would love to do it . . . 

 

18 Plaintiffs contend that the Court has “the discretionary authority to incorporate by reference 

unofficial disclosures that have been officially acknowledged,” so it should incorporate by 

reference the June 14, 2017 Washington Post article into the President’s tweet. Cross-Reply at 7–

11. Plaintiffs do not cite to any legal authority in support of their novel argument, and the Court 

is disinclined to presume to flesh out the President’s expressions of his own thoughts. In any event, 

the Court has already explained that media accounts cannot overcome the government’s Glomar

response.
25

TRUMP: Because here’s what we’ll say, and everybody says: No collusion. There’s 

no collusion. Now they’re saying, “Oh, well, ‘Did he fight back? Did he fight 

back?’ You fight back, ‘Oh, it’s obstruction.’ So, here’s the thing: I hope so. 

REPORTER: How do you define collusion? Maggie asked this earlier during the 

briefing to Sarah –

TRUMP: You’re going to define it for me, OK? But I can tell you, there’s no 

collusion. I couldn’t have cared less about Russians having to do with my 

campaign. 

First Fact Suppl. at 2–3.19 

Plaintiffs argue that these disclosures, “confirm the existence of records responsive to the 

Plaintiffs’ FOIA requests, specifically in so much as they verify the existence of records 

memorializing discussions within DOJ and disclosures to President Trump (or his legal team) 

regarding the extent to which he is a subject or target of either of the two aforementioned 

investigations.” Id. at 3. 

This is a highly unpersuasive characterization of the President’s pronouncements, which 

say nothing of the sort. In this interview, the President reiterates his personal desire to speak with 

the Special Counsel and his position concerning what took place during the campaign. The 

statements do not “match” the plaintiffs’ specific record request; they do not bear on the question 

of whether the President is a target, subject, or material witness in an investigation. Furthermore, 

President Trump’s unremarkable statement that the setting of a date for any meeting with the 

Special Counsel would be “subject to [his] lawyers” does not expressly acknowledge the existence

of records memorializing disclosures from the DOJ to the President’s legal team about his status. 

 

19 Citing, Trump audio transcript: ‘I’m Looking forward to’ speaking with Mueller, Wash. 

Post. (Jan. 24, 2018), https://www.washingtonpost.com/news/post-politics/wp/2018/01/24/trumpaudio-transcript-im-looking-forward-to-speaking-with-mueller/?utm_term=.3c9d96fc8edd.
26

Furthermore, the statements are too vague and ambiguous to warrant an ACLU type of 

analysis. See generally ACLU, 710 F.3d 422. When the President refers to what “they” are saying, 

it is not at all clear whether he is referring to law enforcement personnel or media commentators. 

This statement bears no resemblance to the CIA Director’s statements about military technology 

which were so detailed, they were deemed by the Court of Appeals to be “tantamount to an 

acknowledgment that the CIA has documents on the subject.” Id. 

8. February 24, 2018 Release of HPSCI Memorandum 

Next, plaintiffs argue that a memorandum drafted by the minority staff of the House 

Permanent Select Committee on Intelligence (“HPSCI”) constitutes an official acknowledgement 

of the information at issue. Second Factual Suppl. at 3. The memorandum, titled “Correcting the 

Record-The Russia Investigation,” but referred to by plaintiffs as the “Schiff Memo,” was written

in response to a memorandum drafted by the majority members of the committee, referred to as 

the “Nunes Memo.” Id. at 2. The Schiff Memo was declassified by the President on February 24, 

2018. Id. Plaintiffs point to a single line of the Schiff memo: “FISA was not used to spy on 

[President] Trump or his campaign,” which they argue constitutes an official acknowledgment of 

the “existence or non-existence of records” sought in their FOIA request. Id. at 3. (emphasis in 

original). 

A memorandum issued by members of a House Committee cannot constitute an official 

disclosure on behalf of the FBI and DOJ. The D.C. Circuit has explicitly stated that “[d]isclosure 

by one federal agency does not waive another agency’s right to assert a FOIA exemption,” and by 

extension a Glomar response. Mobley, 806 F.3d at 583; see also Frugone v. CIA, 169 F.3d 772, 

774 (D.C. Cir. 1999) (“[W]e do not deem ‘official’ a disclosure made by someone other than the 

agency from which the information is being sought.”). And Members of Congress cannot 
27

officially disclose the existence of records on behalf of DOJ because members of a separate branch 

of government, particularly members of the opposing party, do not speak for an executive agency. 

Cf. Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982) (“[B]are discussions by this 

court and the Congress of NSA’s methods generally cannot be equated with disclosure by the 

agency itself of its methods of information gathering.”). 

Even if the President’s decision to de-classify and release the memorandum somehow 

transformed the statement into one of his own for purposes of this analysis, the single sentence 

stating that FISA was not “used to spy on [President] Trump or his campaign” does not specifically 

mirror the plaintiffs’ FOIA request. It does not pertain to whether DOJ has records memorializing 

internal discussions or disclosures to the President about the President’s status as a subject, target 

or material witness to any investigation. The fact that the DOJ withdrew its Glomar response as 

to the existence of the Carter Page FISA applications in other FOIA litigation, see Second Factual 

Suppl. at 2, is entirely irrelevant to this case.

9. May 1, 2018 Tweets

Plaintiffs rely on more tweets from the President as evidence of an official 

acknowledgment of responsive records. On May 1, 2018, between 3:47 AM and 4:45 AM,

President Trump made several comments on Twitter after the New York Times reported on a leaked 

document that allegedly contained a list of interview questions that the Special Counsel sent to 

President Trump’s lawyers: 

So disgraceful that the questions concerning the Russian Witch Hunt were 

leaked to the media. No questions on collusion. Oh, I see . . . you have a 

made up, phony crime, Collusion, that never existed, and an investigation 

begun with illegally leaked classified information. Nice! 
28

Third Factual Suppl. at 2–3.20

It would seem very hard to obstruct justice for a crime that never happened! 

Witch hunt! 

Id. at 3.21

There was no Collusion (it is a Hoax) and there is no Obstruction of Justice 

(that is a setup & trap). What there is is [sic] Negotiations going on with 

North Korea over Nuclear War, Negotiations going on with China over 

Trade Deficits, Negotiations on NAFTA, and much more. Witch Hunt! 

Id.22

Plaintiffs argue that “[a]t a minimum, this represents an official acknowledgment that 

President Trump is a subject of and/or material witness to the two investigations and that the DOJ 

has both discussed that fact within the agency and disclosed that fact to President Trump’s personal 

legal team.” Id. at 3. 

As stated before, an official acknowledgment cannot be based on “public speculation, no

matter how widespread.” Wolf, 473 F.3d at 378. Here again, plaintiffs admit that President

Trump’s exclamations were sparked by information disseminated by the press, rather than 

government documents, so those tweets cannot constitute an official acknowledgment. 

Plaintiffs argue that the problem is cured in this situation because the President’s tweets 

officially acknowledged the “authenticity” of the leaked questions. Pls.’ Third Suppl. at 2. That 

is quite a stretch. The President complains that it was “disgraceful that the questions concerning 

 

20 Citing, Donald Trump (@realDonaldTrump), Twitter (May 1, 2018, 3:47 AM), 

https://twitter.com/realDonaldTrump/status/991267863674675200.

21 Citing, Donald Trump (@realDonaldTrump), Twitter (May 1, 2018, 4:34 AM), 

https://twitter.com/realDonaldTrump/status/991279620044591105.

22 Citing, Donald Trump (@realDonaldTrump), Twitter (May 2, 2018, 4:45 AM), 

https://twitter.com/realdonaldtrump/status/991644756995444736?s=21.
29

the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the

questions” (emphasis added), the tweet does not confirm or even imply that the published list is 

accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single 

article in a rambling set of comments issued at 4:00 in the morning. 

Moreover, the D.C. Circuit has repeatedly distinguished between official 

acknowledgments and leaks to the media. See e.g., Afshar, 702 F.2d at 1130–31 (distinguishing 

between “official acknowledgment” and “[u]nofficial leaks and public surmise”); Fitzgibbon, 911 

F.2d at 765; see also All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, 134 F. 

Supp. 3d 201, 208 (D.D.C. 2015) (“Leaked information and documents . . . do not constitute 

official acknowledgment.”); Judicial Watch, Inc. v. DOJ, 898 F. Supp. 2d 93, 108 (D.D.C. 2012) 

(“[A]n anonymous leak is presumptively an unofficial and unsanctioned act.”). Because the 

President’s tweets are premised on a news account quoting leaked, therefore unofficial,

information, they do not amount to an official acknowledgement of the existence of responsive 

records maintained by the DOJ and FBI. 

The second and third tweets in the series are even further from official acknowledgments 

than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & 

trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is 

vociferously attacking the investigators makes the proposition that he was speaking on their behalf 

in this instance somewhat dubious.

10. June 2, 2018 Tweet

Plaintiffs also point to a June 2, 2018 tweet from President Trump:

There was No Collusion with Russia (except by the Democrats). When will 

this very expensive Witch Hunt Hoax ever end? So bad for our Country. Is 

the Special Counsel/Justice Department leaking my lawyers letters to the 

Fake News Media? Should be looking at Dems corruption instead? 
30

Fourth Factual Suppl., at 1 (emphasis in original).

23

Plaintiffs characterize this tweet as being in response to yet another New York Times article 

on a leaked document, this time an alleged memorandum from President Trump’s lawyer to 

Special Counsel Mueller. Id. at 2. They assert that the President’s tweet confirmed the 

“authenticity” of the leaked legal memorandum. Id. 

As stated before, a Presidential statement premised on unofficial information, such as a 

news story, is not an official acknowledgment. See Fitzgibbon, 911 F.2d at 765; Wolf, 473 F.3d 

at 378, citing Afshar, 702 F.2d at 1130. Furthermore, even if President Trump’s tweet was based 

on official information, the specific record he mentions, a memorandum from his legal team to the 

Special Counsel, does not fall within the scope of documents sought in the FOIA request since it 

is not a record memorializing discussions between or among DOJ staff and the FBI, nor is it a 

disclosure made to the President or White House staff. These distinctions are not trivial; to 

overcome a Glomar response, plaintiffs must “pinpoint” disclosed records that specifically 

“match” the requested records, Moore, 666 F.3d at 1333, and here they have not done so.

11. September 4, 2018 The Daily Caller Interview

Plaintiffs have recently supplied the Court with evidence of statements the President made 

during a September 4, 2018 interview with The Daily Caller:

I view it as an illegal investigation. It should not have never been allowed 

to start. You know, I’m not a target of this investigation, just in case you 

don’t realize. 

 

23 Citing, Donald Trump (@realDonaldTrump), Twitter (Jun. 2, 2018, 10:43 AM), 

https://twitter.com/realDonaldTrump/status/1002968869043097600.
31

Pls.’ Sixth Factual Suppl. at 2 (emphasis in original).24 While the President uses the word “target,” 

which is included in the FOIA request, this statement also falls short of the requirements for an 

official acknowledgment because among other reasons, it does not reveal the basis for the 

President’s conclusory declaration. He does not expressly mention a particular record maintained 

or disclosed by the FBI. And to the extent, plaintiffs would argued based on the D.C. Circuit’s 

ruling in ACLU, that the statement provides grounds to infer the existence of records, the statement 

is easily distinguished from the highly specific statements made in that case by officials of the 

particular agency involved. Here the statement is quiet general, and once again the President 

appears to be speaking in opposition to, rather than on behalf of, the investigative agencies.

25

 

 

24 Citing, Exclusive: Trump Says ‘Conflicted’ Mueller is Leading ‘An Illegal Investigation,’

The Daily Caller (Sept. 4, 2018), https://dailycaller.com/2018/09/04/trump-mueller-conflicted/.

25 Plaintiffs filed a notice of supplemental authority that directed the Court’s attention to, 

James Madison Project v. DOJ, 17-CV-00144, 2018 WL 3956426, at *4 (D.D.C. Aug. 16, 2018), 

a recent Glomar ruling issued by another court in this district. That opinion, which is not binding 

on this Court, is also distinguishable because there the court found that reconsideration was 

warranted because a subsequent disclosure “expressly refers to the document [p]laintiffs seek” –

the two-page synopsis of the Steele dossier. Id. 
32

CONCLUSION

Because defendant has justified its Glomar response through sufficiently detailed 

affidavits, and plaintiffs have not put forth any official statements that meet the stringent 

requirements to constitute a waiver, the Court will grant defendant’s motion for summary 

judgment, and it will deny plaintiffs’ cross-motion. 

A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: September 7, 2018