UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ _ ) JAMES MADISON PROJECT , et al. , ) ) Plaintiff s , )

) v. ) Civil Action No

. 1 7

- 13 92 (ABJ ) ) DEPARTMENT OF JUSTICE , ) ) Defendant

. )

___________________________________ _ ) MEMORANDUM OPINION
P laintiffs 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 rec ords related to the question of “ whe ther 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,” 1 refusing 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 f

or partial summary 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] projec t ‘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 mili tary and intelligence experts.’ ” Roth v. DOJ , 642 F.3d 1161, 1171 (D.C. Cir. 2 011), quoting Phillippi v. CIA , 655 F.2d 1325, 1327 (D.C. Cir. 1981).2

including tweet s, 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 w ill grant defendant’s motion for summary judgment , and i t will deny plaintiffs’ motion. The government has met its burden of establishing that the information withheld is protect ed under FOIA Exemption 7(A) , and
none of th e 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, p laintiffs 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 Attorne y 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 disclo sures 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 me morializing 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 as ked for records from the period of Jan uary 1, 2016, to the date of DOJ’s search.
Id. They submitted an identical FOIA request to the FBI, a comp onent 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 Di rector James Comey “stated that Director Comey had inf ormed him on three separate occasions that he (President Trump) was not under inves tig ation.” FOIA Request at 1. The requestors also noted that in a subsequent interview with NBC News , t he President stated that he asked Comey, “[A] m I under investigation? ” and that Comey responded, “ You are not under investi gation.” Id. at 1

– 2. On June 20, 2017 , t he FBI i ssued its Glomar response asserting that the agency could “neither confirm nor deny the existence of any records” responsive to plaintiff s’ r equest 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 , plaintiff s filed a two

- count complaint against DOJ

. See Compl. In count one, plaintiffs challenge d DOJ’s failure to respond to their request, and in count two they challenge d the F BI’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. M ot. 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
off icial 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.”); M ot. for Leave to Suppl. the Record [Dkt. # 25] (“Fourth Factual Suppl.”). 2 Most recently, plaintiff s filed motion s 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 argum ent. 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 g enuine issue of material fact.” Celotex Corp. v.
Catrett , 477 U.S. 317, 323 (1986) (int ernal 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 pa rticular 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
is sue for trial.” Id . at 324 (internal quotation marks omitted). When the court is presented with

cross - motion s for summary judgment, it analyzes the underlying facts and inferences in each party’s motion in the light most favo rable 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 insufficien t to preclude summary judgment. Id. , at 247

– 48. A dispute is “genuine” only if a reasonable fact

- finder could fi nd for the non

- moving party; a fact is “material” only if it is capable of affecting the outcom e 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 fo r 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 bear s 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 p resumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and disco verability 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 ac cordance with published rules . . . shall make the records promptly avail able to any person,”
5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed ex emptions.
See 5 U.S.C. § 552(b); FBI v. Abramson , 456 U.S. 615, 630 (198 2). 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)

. W hen 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. CI A. , 473 F.3d 370, 374 (D.C. Cir. 2007)

. This is called
a “ Glomar response.” Such a response is appropriate when revealing the ve ry 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 age ncy 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 Glomar7

response “fits a FOIA exemption, courts apply the general exemption review standards es tablished
in non

- Glomar cases.” Wolf , 473 F.3d at 374.
I. FOIA Exempti on 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 enforce ment 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 e xem ptio n . 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 di sclosed 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) pend ing or reasonably anticipated.’” Citizens for Responsibility & E thics 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 tha t “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 [come s] 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 Tru mp 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” i s 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 detect ion, 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 pa rticular 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

- measures investigation (“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 public ly acknowledged. Id. ¶ 27. The agency asserts that p rematurely 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 suppor t 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
pe nding or reasonably anticipated; t herefore , a Glomar re sponse 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 discl osure has already been sustained

. S ee Niagara Mohawk Power Corp. v. U.S. Dep’ t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)

. This is commonly r eferred to as an “official10

acknowledgement” challenge or the “public domain exception.” See ACLU v. CIA , 710 F.3d at 422, 426

– 27 (D.C. Cir. 2013) (us i ng 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. CI

A. , 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. CI

A , 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 inform ation was already “made public through an official and documented disclosure.” Fitzgibbon v. C I A , 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. M arino v. DEA , 685 F.3d 1076, 1081 (D.C. Cir. 2012)

. T he 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 reco rd that both matches the plaintiff’s request and has been publicly and official ly acknowledged by the11

agency.”) ; see also Mobley v. CI A. , 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 th e 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 FO IA exemptio n.” 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. CI A., 508 F.3d 1108, 1124 (D.C. Cir. 2007) (emphasis in original).
If a court determines t hat 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 ma teria l witness of an investigation. Indeed , the only offic ial 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 les s 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 w e are examining.” Comey Congr essional Testimony.
P laintiff s base their case solely on statements made by President Trump, i ncluding some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist
based on the President’s summaries of c onversations he had with the former FBI director as well as a number of vague, and sometime s 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 t he 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 specif ic 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 quotati on 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 pape r 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 state ment 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.
P laintiffs bear the burden of overcoming the government’s Glomar response by pointing to the “specific information in the public domain that duplicates that b eing withheld,” Pub. Citizen , 11 F.3d at 201, and here, they have direc ted 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” investigat ion. Pls.’ Cross

- Mot. at 4. Based on the individual analysis to be set forth below, t he Court finds that none of the statements identifie d by the plaintiffs satisfy
the stringent legal test for an official acknowledgment. N o statement explicitly acknowledge s the existence of responsive records within the FBI or DOJ , and none of them “ match ” the informati on sought in the FOIA request. More over, the Court cannot infer that the Presi dent 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
ack nowledg ment” 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 greatl y 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

Pl s
. ’ Cross

- Mot. at 5

. 6
This sentence implicitly asserts that there were certain exchange s between the then FBI
direc tor and the President concerning the i nvestigation, 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 an y “agency record” or written memorandum that was shared with the President or was referenced in t he conversation. S ee Moore , 666 F.3d at 1333.
Moreo ver, 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 of ficial acknowledgment doctrine
demands

. Wolf

, 473 F.3d at 378.
P laintiffs a cknowledge 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 a re set out in the U.S. Attorney s ’ Manual § 9

- 11.151: A “target” is a person as to whom the prosecutor or t he 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 eve n if such officer’ s or employee’ s conduct contributed to the commission of the crim e by the target organization . . . A “subject” of an investigation is a person whose conduct is wit hin 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 ent irely 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 ma terial 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 3 142 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.
W hile the D.C. Circuit’s opinion in the ACLU case does indicate that a c ourt may infer the
existence or non

- ex istence of records from an official statement in certain situations, this is not

one o f those situations

. In A CLU , the plaintiffs sought the release of records from the CIA regarding the operation of drones by the C IA 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)
of ficially 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 counter

terrorism 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 thi s 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 tar geting

. . . 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 ma tter confidential; the agenc y 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, includin g 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, p laintiffs rely solely on statements made by the President, and none from the DOJ o r the FBI. This diff

erence 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 matchi ng and specifi city requirements

. When a plaintiff asks a c ourt 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

o f 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 sin gle document on the subject of drone strikes. Unless we are to believe that the Director was able to “assure” his audience that drone strik es 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 publ ic 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 do es not meet t hat 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 in vestigation.” 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 d inner? DONALD TRUMP: A dinner was arranged, I think he asked for the dinner. And he wanted to stay o n 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 no t 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 gi ven 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 swo rn 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.
Pl s
. ’ 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, n one of these statemen t s summarizing conversations
with the FBI official explicitly refer to the existence of any record within the agency, or necessarily

10 C iting , 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 t he 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 tha t he is not under investigation muddy the waters and do not point to t he existence of responsive
records within the FBI or DOJ

. NBC Interview Transcript

. Because p laintiffs did not “pinp oint 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 i t does not inexorably foll ow 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 sor ts of documents and everything.” NBC Interview Transcript

. 12 The same reasoning applies to the stat ement 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 sta tement does not expressly identify a record, does n ot mirror the informati on sought in the request, see Wolf

, 473 F.3d at 378

– 79, and is n ot “tantamount to an acknowledg ment” 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 P resident “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 .” Pl s
. ’ 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 statem ent fails for similar reasons. Plaintiffs assert that on October 20, 2017, President Trump to ld reporters that “he had not been asked by Special Counsel Robert Mueller to
be interviewed as part of any investigation.” Pl s
. ’ 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 , t he statement quoted in the article is even more vague than that . The article reports that w hen 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. ” Th e Hill Article.
T his 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 In terview with Trump , N.Y. Times (July 19, 2017), https://www.nytimes.com/2017/07/19/us/politics/trump

- interview

- transcript.html

. 14 Citing, Je sse 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

- dont

know

- 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.’ Cross

Mot. at 8. They cite a June 9, 2017 , press statement from President Trump asserting that “h e would be willing to testify under oath about the conversations he had with Director Comey prior to firing
him on Ma y 9, 2017. ” Pl s
. ’ Cross

- Mot. at 8. 15
Plaintiffs ’ rush to inform the Court of every Presidential utterance such as this was not well

- advised. T here is obviously no “ match ” between this state ment and the information sought; at best, the statement recognizes that the conversations with Comey may be a subject of an inquiry.
The statemen t to the press expressing a willingness to “ testify ” is just that, and it does not constitute
an official state ment revealing the existence of records r elating to whether he “is or ever was a target of, subject of or material witness to any investigation.” FOIA Request.
6. June 16 , 2017 T weet 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
Pl s
. ’ Cross

- Mot. at 8. 16
Plaintiffs cla im that this tweet officially ack nowledged the existence of the “obstruction of justice investi gation” against the President. Pls.’ Cross

- R eply at 13. But they have concede d that the President “exclu sively” relied on a Washington P ost article pub lished 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 ( @ r ealDonaldTrump), Twitter (Jun. 16, 2017, 6:07 AM), https://twitter.com/realdonaldtrump/status/875701471999864833

.23

he mad e 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 Spe cial Counsel was allegedly investigating the Pres ident 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 “a n 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 acknowledg ing that the President was responding to the Washington Post article when he ex pressed his shock and disbelief, and that he was not broadcasting government information , plaintiffs have conceded that
the Presid ent’s statement cannot be deemed to be an official waiver

. As the D.C. Circuit has advised, “i t is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sourc es, 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, plaintiff s supplemented t he factual record with six additional statements which they argue waive d the government’s Glomar response as i t relates to what they label as the “Russian collusion” and the “obstru ction 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 goin g 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. An d 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 th at

— 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 Washingto n Post article into the President’s tweet . Cross

- Reply at 7

– 11. P laintiffs 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 an y event, the Court has al ready explained that media accounts cannot overcome the government’s Glomar response.25 TRUMP: Because here’ s wh at we’ ll say, and ever ybody says: No collusion. There’s no collusion. Now they’ re saying, “Oh, well, ‘ Did he fight back? Did h e 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 Russia ns 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
Plain tiffs’ 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 a forementioned investigations. ” Id. at 3. This is a highly unpersuasive characterization of the President’s pronouncements, which say nothing of th e sort. In this interview, t he President reiterates his personal desire to speak with the Special Counsel and his position concerning what took place during the campaign. T he

statements do not “match” the plaint iffs’ 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 t hat 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/trump

audio

- 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 w hether 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 deeme d 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 acknowledgemen t of the information at issue. Second Factual S uppl. at 3

. The memorandum , titled “Correcting the
Record

- The Russia Investigation,” but referred to by plaintiffs as the “Schiff M emo,” was written in response to a memorandum drafted by the major ity members of the committee , referred to as the “Nunes M emo.” Id. at 2. The Schiff M emo 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 [Pre sident] 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 b y 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 i nformation is being sought.”). And Member s of Congress cannot27

officially disclose the existe nce 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 th at FISA was not “used to spy on [ President ] Trump or his campaign” does not specifically
mirror the plaintif

fs’ FOIA request. I t 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 inve stigation. 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
S uppl. at 2, is entirely irrelevant to this case.
9. May 1 , 2018 Tweets Plaintiffs rely on mor e tweets from the President as evidence of an official acknowledgment of responsive record s
. 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 allegedl y 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 ques tions on collusion. Oh, I see . . . you have a made up, phony crime, Collusion, that never existed, and an investigation begun with illegally leake d 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 wi tness to the two investigations and that the DOJ
has both d iscussed that fact within the agency and disclosed that fact to P resident 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 twe et s 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 ( @ r ealDonaldTrump), Twitter (May 1, 2018 , 3:47 AM ), https://twitter.com/realDonaldTrump/status/991267863674675200

. 21 Citing, Donald Trump ( @ r ealDonaldTrump), Twitter (May 1, 2018, 4:34 AM), https://twitter.com/realDonaldTrump/statu s/991279620044591105

. 22 Citing, Donald Trump ( @ r ealDonaldTrump), 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 .” O ther 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 se t of comments issued at 4:00 in the morning. Moreover, the D.C. Circuit has repeatedly distinguis hed between official acknowledg ments 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 Gr p . on Extraordina ry 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 unoffici al and unsanctioned act.”)

. Because the President’ s twee t s are premised on a news account quoting leaked , there fore unofficial , information, they do not amount t o 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 refe re nces 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
P laintiffs also point to a June 2, 2018 tweet from President Trump:
T here 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 D ems 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 P residential 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, t he 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 discussion s between o r 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 recor ds , 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 ( @ r ealDonaldTrump), 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 disc losed 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 i nvestigative 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

- 0 0144, 2018 WL 3956426, at *4 (D.D.C. Aug. 16, 2018), a recent Glomar ruling issued by another c ourt 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 Steel e 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 C ourt 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