Case 17-2066, Document 51, 10/19/2017, 2152343, Page1 of 57 17-2066(L) To Be Argued By: JEANNETTE A. VARGAS 17-2069(XAP) United States Court of Appeals FOR THE SECOND CIRCUIT Docket Nos. 17-2066(L), 17-2069(XAP) THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, Plaintiffs-Appellees-Cross-Appellants, —v.— UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant-Cross-Appellee. ON APPEAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FROM THE FOR THE BRIEF FOR DEFENDANT-APPELLANTCROSS-APPELLEE CHAD A. READLER, Acting Assistant Attorney General DOUGLAS N. LETTER, MATTHEW M. COLLETTE, H. THOMAS BYRON III, Attorneys, Appellate Staff Civil Division, Department of Justice JOON H. KIM, Acting United States Attorney for the Southern District of New York, Attorney for Defendant-AppellantCross-Appellee. 86 Chambers Street, 3rd Floor New York, New York 10007 (212) 637-2678 JEANNETTE A. VARGAS, BENJAMIN H. TORRANCE, Assistant United States Attorneys, Of Counsel. Case 17-2066, Document 51, 10/19/2017, 2152343, Page2 of 57 TABLE OF CONTENTS PAGE Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . 3 Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Procedural Background . . . . . . . . . . . . . . . . 4 B. The Durham Investigations . . . . . . . . . . . . . 5 C. District Court Decisions . . . . . . . . . . . . . . . 12 Summary of the Argument . . . . . . . . . . . . . . . . . . . 15 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . 18 The Five Memoranda Are Shielded from Disclosure Under Exemption 5 . . . . . . . . . . . . . 18 A. The Five Memoranda Constitute Privileged Attorney Work Product . . . . . . 19 B. The Express Adoption Doctrine Cannot Overcome the Attorney Work-Product Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. The Rationale of the Express Adoption Doctrine Does Not Apply in the Work Product Context . . . . . . . 24 Case 17-2066, Document 51, 10/19/2017, 2152343, Page3 of 57 ii PAGE 2. The District Court Erred in Equating the Attorney-Client and WorkProduct Privileges . . . . . . . . . . . . . . . . 29 C. There Has Been No Express Adoption Here . . . . . . . . . . . . . . . . . . . . . . . 33 1. The Express Adoption Doctrine Requires That a Decisionmaker Publicly and Expressly Adopt the Reasoning of a Document as the Basis for the Agency’s Decision. . . . . . 33 2. The Prosecutorial Memoranda Were Not Expressly Adopted . . . . . . . 41 a. The Final Recommendation Memorandum and Supplemental Recommendation Memoranda . . . 41 b. The Declination Memoranda . . . . 44 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Case 17-2066, Document 51, 10/19/2017, 2152343, Page4 of 57 iii PAGE TABLE OF AUTHORITIES Cases: A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994) . . . . . . . . . . . . . . . 20, 21 Abtew v. Dep’t of Homeland Security, 808 F.3d 895 (D.C. Cir. 2015). . . . . . . . . . . . . 35, 42 Access Reports v. Dep’t of Justice, 926 F.2d 1192 (D.C. Cir. 1991). . . . . . . . 36, 38, 40 Brennan Center for Justice v. DOJ, 697 F.3d 184 (2d Cir. 2012) . . . . . . . 31, 37, 38, 40 Brinton v. Dep’t of State, 636 F.2d 600 (D.C. Cir. 1980). . . . . . . . . . . . . . . . 38 Bristol-Meyers Co. v. FTC, 598 F.2d 18 n.23 (D.C. Cir. 1978) . . . . . . . . . . . . 26 Carney v. DOJ, 19 F.3d 807 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 18 Casad v. Dep’t of Health & Human Services, 301 F.3d 1247 (10th Cir. 2002) . . . . . . . 35, 38, 39 Center for Nat’l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003). . . . . . . . . . . . . . . . 19 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980). . . . . . . . . . . . . . . . 30 Common Cause v. IRS, 646 F.2d 656 (D.C. Cir. 1981). . . . . . . . . . . . . . . . 37 Case 17-2066, Document 51, 10/19/2017, 2152343, Page5 of 57 iv PAGE Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994) . . . . . . . . . . . . . . . 32 Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 19 In re EchoStar Commc’ns Corp., 448 F.3d 1294 (Fed. Cir. 2006) . . . . . . . . . . . . . . . 32 FBI v. Abramson, 456 U.S. 615 (1982) . . . . . . . . . . . . . . . . . . . . . 27, 34 Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979) . . . . . . . . . . . . . . . . . . . . . 24, 25 FTC v. Grolier, Inc., 462 U.S. 19 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 31 Heckler v. Chaney, 470 U.S. 821 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 22 Hickman v. Taylor, 329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . . . 20, 30 Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . 19 John Doe Co. v. United States, 350 F.3d 299 (2d Cir. 2003) . . . . . . . . . . . . . . 31, 32 John Doe Corp. v. United States, 675 F.2d 482 (2d Cir. 1982) . . . . . . . . . . . . . . . . . 20 In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988) . . . . . . . . . . . . . . . . 32 Case 17-2066, Document 51, 10/19/2017, 2152343, Page6 of 57 v PAGE National Ass’n of Criminal Defense Lawyers v. DOJ Exec. Office for United States Attorneys, 844 F.3d 246 (D.C. Cir. 2016). . . . . . . . . . . . . . . . 21 National Council of La Raza v. DOJ, 411 F.3d 350 (2d Cir. 2005) . . . . . . . . . . . . . passim New Hampshire Right to Life v. Dep’t of Health & Human Services, 778 F.3d 43 . . . . . . . . . . . . . . . . . . . . 35, 38, 39, 41 New York Times Co. v. DOJ, 756 F.3d 100 (2d Cir. 2014) . . . . . . . . . . . . . . 38, 39 New York Times Co. v. DOJ, 138 F. Supp. 3d 462 (S.D.N.Y. 2015) . . . . . . . . 4, 12 New York Times Co. v. DOJ, 235 F. Supp. 3d 522 (S.D.N.Y. 2017) . . . . . . . . 5, 14 Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967 (7th Cir. 1977) . . . . . . . . . 25, 26, 27 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) . . . . . . . . . . . . . . . . . . . . passim Pacific Fisheries, Inc. v. United States, 539 F.3d 1143 (9th Cir. 2008) . . . . . . . . . . . . . . . 21 Providence Journal Co. v. Dep’t of the Army, 981 F.2d 552 (1st Cir. 1992) . . . . . . . . . . . . . . . . . 38 Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975) . . . . . . . . . . . . . . 35, 40, 44, 45 Case 17-2066, Document 51, 10/19/2017, 2152343, Page7 of 57 vi PAGE Rockwell Int’l Corp. v. DOJ, 235 F.3d 598 (D.C. Cir. 2001). . . . . . . . . . . . passim In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998). . . . . . . . . . . . . . . . 21 In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982). . . . . . . . . . . . . . . . 29 Shermco Industries, Inc. v. Sec’y of Air Force, 613 F.2d 1314 (5th Cir. 1980) . . . . . . . . . . . . . . . 38 Swisher v. Dep’t of Air Force, 660 F.2d 369 (8th Cir. 1981) . . . . . . . . . . . . . . . . 38 Tax Analysts v. IRS, 117 F.3d 617 (D.C. Cir. 1997). . . . . . . . . . . . . . . . 20 Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002) . . . . . . . . 19, 35, 37, 45 United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) . . . . . . . . . . . . . 20, 22 United States v. Armstrong, 517 U.S. 456 (1996) . . . . . . . . . . . . . . 22, 31, 40, 45 United States v. Fernandez, 231 F.3d 1240 (9th Cir. 2000) . . . . . . . . . . . . . . . 21 United States v. Nobles, 422 U.S. 225 (1975) . . . . . . . . . . . . . . . . . 20, 21, 30 Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . 18 Wood v. FBI, 432 F.3d 78 (2d Cir. 2005) . . . . . . . . . . . . . . passim Case 17-2066, Document 51, 10/19/2017, 2152343, Page8 of 57 vii PAGE Statutes: 5 U.S.C. § 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 28 U.S.C. § 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 28 U.S.C. § 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 28 U.S.C. § 519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rules: Fed. R. Civ. P. 26(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . 20 Fed. R. Crim. P. 16(a)(2) . . . . . . . . . . . . . . . . . . . . . . 21 Fed. R. Crim. P. 6(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Other Authorities: Wright & Miller, Federal Practice & Procedure § 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Case 17-2066, Document 51, 10/19/2017, 2152343, Page9 of 57 United States Court of Appeals FOR THE SECOND CIRCUIT Docket Nos. 17-2066(L), 17-2069(XAP) THE NEW YORK TIMES CO., CHARLIE SAVAGE, Plaintiffs-Appellees–Cross-Appellants, —v.— UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant–Cross-Appellee. BRIEF FOR DEFENDANT-APPELLANT– CROSS-APPELLEE Preliminary Statement This Freedom of Information Act (“FOIA”) case concerns five highly sensitive internal prosecution memoranda prepared by an Acting United States Attorney. The memoranda stem from a criminal investigation into the CIA’s interrogation of detainees overseas during the period following the terrorist attacks of September 11, 2001. Like most prosecution memoranda, the documents conclude with recommendations about whether to proceed with criminal investigations or prosecutions. They also recount extensive details of Case 17-2066, Document 51, 10/19/2017, 2152343, Page10 of 57 2 the investigations that were conducted by federal prosecutors and agents, detail prosecutors’ analysis of the types of evidence that would be sufficient to justify bringing criminal charges; evaluate that evidence’s admissibility and its strengths and weaknesses; discuss the different types of criminal charges that could be brought and analyze the strength of defenses against those charges; and describe possible litigation strategies that could be pursued if charges were to be brought. Thus, like other prosecution memoranda prepared by federal prosecutors, these documents are not only quintessential attorney work product, but they also reflect the core of the Department of Justice’s (“DOJ’s”) law enforcement mission, in particular DOJ’s exercise of the Executive’s unique constitutionally based power of criminal prosecutorial discretion. FOIA Exemption 5 protects privileged government records from disclosure, and the district court correctly recognized that the documents at issue here are privileged attorney work product. But the court erred in concluding that the memoranda lost the protection of that privilege on the theory that the documents had been expressly adopted by DOJ when the Attorney General made public statements concerning the investigations. The doctrine of express adoption was developed in the context of the deliberative process privilege; its rationale does not apply to attorney work product. In any event, there was no express adoption here. The doctrine requires that adoption be express, and that it incorporate a document’s reasoning—mere references to a recommendation or the conclusion of a document do Case 17-2066, Document 51, 10/19/2017, 2152343, Page11 of 57 3 not constitute express adoption of the document itself. Here, the Attorney General made no reference to the existence, much less the reasoning or analysis, of any of the privileged documents in any of his public statements, let alone put forward any of these documents as the authoritative rationale or as the basis for the government’s decisions. The district court’s logic would require disclosure of prosecution memoranda whenever DOJ announces a decision in a criminal matter and refers to the underlying investigation and recommendations or determinations of prosecutors, even though it does not publicly rely upon the reasoning or substance of any particular document in explaining the rationale for its decision. That result is unprecedented, contrary to Congress’s intent, and inconsistent with case law regarding express adoption. It also contravenes the Supreme Court’s repeated reminders that prosecutors exercise constitutionally protected discretion when they decide whether or not to bring criminal charges, and that such a decision is very rarely subject to judicial scrutiny. The judgment of the district court should be reversed. Jurisdictional Statement The district court had jurisdiction over this FOIA action under 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). The district court entered final judgment on April 28, 2017. (Joint Appendix (“JA”) 35758). On June 26, 2017, the government filed a timely notice of appeal. (JA 359). On July 5, 2017, plaintiffs Case 17-2066, Document 51, 10/19/2017, 2152343, Page12 of 57 4 cross-appealed. (JA 360). This Court has jurisdiction over the government’s appeal under 28 U.S.C. § 1291. Issue Presented Whether memoranda setting forth a prosecutor’s analysis of the prospect of litigation in light of a criminal investigation retain the protection of the attorney work-product doctrine after the Department of Justice publicly announces its decision to open a criminal investigation or to decline prosecution in a particular case. Statement of the Case A. Procedural Background On April 11, 2014, plaintiffs submitted two FOIA requests to DOJ. (JA 80, 85). Plaintiffs subsequently filed the complaint in this action on May 28, 2014, seeking compelled disclosure of records responsive to their requests. (JA 12-18). The parties filed cross-motions for summary judgment with respect to the applicability of FOIA Exemption 5, 5 U.S.C. § 552(b)(5). In an opinion and order dated September 30, 2015, the district court (Oetken, J.) partially granted and partially denied each party’s motion. 138 F. Supp. 3d 462 (S.D.N.Y. 2015) (Special Appendix (“SPA”) 1-32). Specifically, the district court held that certain responsive documents were exempt in their entirety pursuant to Exemption 5. (SPA 16-17, 19). The district court concluded, however, that the government had expressly adopted the five prosecution memoranda at issue in this appeal, and that those Case 17-2066, Document 51, 10/19/2017, 2152343, Page13 of 57 5 documents were therefore only protected by Exemption 5 to the extent that they did not reflect the reasoning expressed by the Department of Justice in its public statements. (SPA 17-19). The parties filed a second round of summary judgment motions, addressing whether the five memoranda that the district court had found to be adopted were nonetheless exempt under FOIA Exemptions 1, 3, 6, and 7(C), as well as the extent to which such memoranda were exempt from disclosure under Exemption 5 in accordance with the district court’s first summary judgment opinion. (JA 247, 286). The district court issued an opinion and order with respect to those summary judgment motions on February 21, 2017. 235 F. Supp. 3d 522 (S.D.N.Y. 2017) (SPA 23-48). The district court again partially granted and partially denied the party’s respective motions. (SPA 48). The district court ordered the government to produce the five prosecution memoranda, with certain information redacted pursuant to Exemptions 1, 3, 5, 6 and 7(C). (SPA 48). Final judgment was entered on April 28, 2017. (JA 357-58). On June 26, 2017, the government appealed. (JA 359). On July 5, 2017, plaintiffs cross-appealed. (JA 360). B. The Durham Investigations On January 2, 2008, Attorney General Michael Mukasey appointed John Durham as the Acting United States Attorney for the Eastern District of Virginia, and charged him with investigating the destruction of certain videotaped interrogations of detainees Case 17-2066, Document 51, 10/19/2017, 2152343, Page14 of 57 6 by the CIA. (JA 104 ¶ 5). 1 Attorney General Eric H. Holder, Jr., later expanded Durham’s mandate to include a preliminary review of whether federal laws had been violated in connection with the interrogation of certain detainees at overseas locations, and to recommend to the Attorney General whether a full criminal investigation should be opened with respect to any of these incidents. (JA 104 ¶ 6). Durham directed and supervised a team of attorneys and FBI agents in connection with this review. (JA 104 ¶ 6). Durham reported directly to the Attorney General and Deputy Attorney General. (JA 104 ¶ 7). In conducting the preliminary review, Durham’s team addressed whether DOJ should open a full criminal investigation into the treatment of any detainees interrogated by the CIA overseas following the September 11 attacks. (JA 104 ¶ 7). Durham provided a confidential report to the Attorney General and Deputy Attorney General, dated May 26, 2011, containing his final recommendations with respect to each of the 101 incidents examined in the preliminary review (the “Final Recommendation Memorandum”). (JA 108 ¶ 14). 2 In the Final Recommendation Memorandum, ————— Documents relating to the tape destruction investigation were withheld under Exemption 5 and are not at issue in the government’s appeal. (JA 117-18 ¶ 13) 1 Durham also produced two interim reports (JA 108 ¶ 14), which are not at issue in the government’s appeal. 2 Case 17-2066, Document 51, 10/19/2017, 2152343, Page15 of 57 7 Durham recommended to the Attorney General that, of the 101 incidents, 99 should be closed without further investigation, and that a full criminal investigation should be opened with respect to two incidents involving the deaths of individuals who had been in United States custody overseas. (JA 108 ¶¶ 14-15). Durham also submitted two reports (the “Supplemental Recommendation Memoranda”) related to the Final Recommendation Memorandum, dated December 14, 2010, and May 26, 2011. (JA 108 ¶ 15). The Supplemental Recommendation Memoranda set forth the legal and factual justification for the recommendation to open full criminal investigations to further examine the circumstances surrounding the deaths of two specific detainees. (JA 108 ¶ 15). The memoranda contain in-depth analyses of the evidence uncovered in the course of the preliminary reviews, and outline the key areas that Durham’s team intended to pursue if authorized to conduct those criminal investigations. (JA 108 ¶ 15). The Final Recommendation Memorandum and the Supplemental Recommendation Memoranda were confidential when Durham submitted them to the Attorney General and Deputy Attorney General. (JA 110 ¶ 19) The analysis and reasoning of those documents were not revealed to the public at that time or afterward. On June 30, 2011, Attorney General Holder announced that he had accepted Durham’s recommendations to close the review of 99 incidents and open full criminal investigations into the deaths of two individuals. (JA 147). In his statement, the Attorney General Case 17-2066, Document 51, 10/19/2017, 2152343, Page16 of 57 8 first reiterated the history behind Durham’s appointment, and outlined the scope of his mandate. (JA 147). The Attorney General also explained the process by which Durham had identified the 101 detainee cases that had been included in his preliminary review. (JA 147). With respect to Durham’s recommendations, however, the Attorney General merely said: Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that had never previously been examined by the Department. Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. . . . The Department has determined that an expanded criminal investigation of the remaining matters is not warranted. (JA 147). The Attorney General then explained the public purpose served by the thorough investigation Durham and his team had been asked to conduct: I concluded based on information available to me [at the time I announced Mr. Durham’s appointment], and continue to believe now, that the Department needed to thoroughly examine the detainee treatment issue. I am confident that Mr. Case 17-2066, Document 51, 10/19/2017, 2152343, Page17 of 57 9 Durham’s thorough review has satisfied that need. (JA 147). The Attorney General’s statement did not identify or refer to any of the three memoranda—including their reasoning or analysis, or the facts they relied on—that had been generated by Durham in the course of his preliminary review. (JA 147). Durham and his team then commenced criminal investigations into the deaths of the two detainees. (JA 109 ¶ 17). Durham ultimately concluded that the investigations should be closed without bringing criminal charges. (JA 109 ¶ 17). These determinations were embodied in two separate confidential memoranda, dated March 14, 2012, and July 11, 2012, both addressed to the Attorney General and Deputy Attorney General (the “Declination Memoranda”), which were not made available to the public. (JA 109 ¶¶ 17, 19). The Declination Memoranda analyze the criminal statutes that could potentially form the basis of an indictment, and evaluate whether there was sufficient evidence to bring criminal charges against the potential targets of the investigation. (JA 109 ¶ 18). The memoranda include extensive discussion of the relative strengths and weaknesses of the substantial volume of evidence gathered in the course of the investigations, and assess the admissibility of such evidence in any judicial proceedings. (JA 109 ¶ 18). The memoranda also evaluate the legal and factual issues that would likely arise in connection with any potential criminal prosecution (JA 109 ¶ 18), consider potential litigation strategies and vulnerabilities (JA 122 ¶ 22), Case 17-2066, Document 51, 10/19/2017, 2152343, Page18 of 57 10 and discuss the strength of various defenses that could be raised (JA 123 ¶ 23). On August 30, 2012, the Attorney General announced that the two criminal investigations had been closed, and that no charges would be brought (“August 2012 AG Statement”). (JA 120 ¶ 18, 149-50). The press release largely reiterates information contained in the Attorney General’s prior statements, including the circumstances of Durham’s appointment, the scope of his investigation, and the sources he examined in determining which matters to investigate. (JA 149-50). The Attorney General’s statements with respect to the actual declination decisions were brief: AUSA John Durham has now completed his investigations, and the Department has decided not to initiate criminal charges in these matters. In reaching this determination, Mr. Durham considered all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes. Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that were not examined during the Department’s prior reviews. Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient Case 17-2066, Document 51, 10/19/2017, 2152343, Page19 of 57 11 to obtain and sustain a conviction beyond a reasonable doubt. (JA 150). The Attorney General concluded by offering praise for the efforts of Durham and his team, and again referred to the purpose of the investigation: Mr. Durham and his team of agents and prosecutors have worked tirelessly to conduct extraordinarily thorough and complete preliminary reviews and investigations. I am grateful to his team and to him for their commitment to ensuring that the preliminary review and the subsequent investigations fully examined a broad universe of allegations from multiple sources. ... . . . I asked Mr. Durham to conduct this review based on existing information as well as new information and matters presented to me that I believed warranted a thorough examination of the detainee treatment issue. I am confident that Mr. Durham’s thorough review and determination that the filing of criminal charges would not be appropriate have satisfied that need. Case 17-2066, Document 51, 10/19/2017, 2152343, Page20 of 57 12 (JA 150). The Attorney General’s statement does not identify or mention any of the contents of the Declination Memoranda, such as their reasoning or analysis, or the factual basis for their conclusions. (JA 150). C. District Court Decisions Plaintiffs, the New York Times Co. and Charlie Savage, brought this case to challenge the government’s response to FOIA requests submitted to DOJ in 2014, seeking, among other things, any reports from Durham to the Attorney General or Deputy Attorney General “describing or presenting findings from” the interrogations investigations. (JA 132). In two opinions, the district court addressed the applicability of FOIA’s statutory exemptions. First, in 2015, the court narrowed the dispute to the five documents at issue in this appeal, holding that other responsive documents were exempt in their entirety under FOIA Exemption 5. 138 F. Supp. 3d 462 (S.D.N.Y. 2015) (SPA 16-17, 19). The court recognized that the five prosecution memoranda at issue here— the Final Recommendation Memorandum, the two Supplemental Recommendation Memoranda, and the two Declination Memoranda—are privileged under the attorney work-product doctrine. (SPA 16). FOIA Exemption 5 ordinarily protects privileged documents from disclosure, but the district court concluded that the documents lost that protection because they had been expressly adopted as a result of the public statements made by the Attorney General on June 30, 2011, and August 30, 2012. (SPA 17-22). Case 17-2066, Document 51, 10/19/2017, 2152343, Page21 of 57 13 The district court first held that the express adoption doctrine applies to attorney work product. (SPA 11-13). The district court acknowledged that this Court had declined to decide whether the doctrine can be invoked to overcome the work-product privilege. (SPA 11 (citing Wood v. FBI, 432 F.3d 78, 84 (2d Cir. 2005)). But the court pointed out that the doctrine had been applied to the attorney-client privilege, and reasoned that “the attorney-client privilege and the work product doctrine are, if not twins, at least very close siblings.” (SPA 13). The district court then held that the term “express,” as used in the “express adoption” doctrine, should not be given its ordinary meaning. (SPA 13). The court concluded that the express adoption doctrine does not require that an agency explicitly mention any specific document or its reasoning in a public statement. (SPA 14). Instead, the district court applied a standard of adoption based on the conduct of the agency, considered as a whole. (SPA 14). The district court held that the Attorney General’s June 2011 statement that he had accepted Durham’s recommendations with respect to the initiation of criminal investigations, and that Durham’s “ ‘thorough review ha[d] satisfied th[e] need’ for a DOJ investigation,” sufficed to demonstrate adoption of the Final Recommendation Memorandum and the two Supplemental Recommendation Memoranda. (SPA 17-18). The district court similarly held that the Attorney General’s August 2012 statements that “Mr. Durham considered all potentially applicable substantive criminal statutes as well as the statutes of limitation and jurisdictional Case 17-2066, Document 51, 10/19/2017, 2152343, Page22 of 57 14 provisions that govern prosecution,” and that the Department of Justice “ha[d] declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” demonstrated adoption of the Declination Memoranda. (SPA 19-20). In its 2017 opinion, the district court considered the applicability of other statutory exemptions to the five documents at issue here. The court upheld redaction of six categories of national security information pursuant to Exemptions 1 and 3, and also held that information identifying third parties was properly withheld pursuant to Exemptions 6 and 7(C). 235 F. Supp. 3d 522 (S.D.N.Y. 2017) (SPA 34-42, 43-45). The court further held that the Supplemental Recommendation Memoranda and the Declination Memoranda were not properly withheld in full under Exemption 3 and Federal Rule of Criminal Procedure 6(e), governing the secrecy of matters occurring before the grand jury, but upheld the government’s withholding of certain categories of grand jury information from the Declination Memoranda. (SPA 27-34). The district court ruled, however, that the eleven exhibits attached to the Supplemental Recommendation Memoranda had been adopted as a result of the Attorney General’s statements (SPA 46-47), even though these documents (with one exception) had not been prepared by Durham or his team, and had not been referred to in any way by the Attorney General (JA 271 ¶ 13). The exhibits in question are historical, procedural, or factual records gathered in the course of Durham’s preliminary review. (JA 271 ¶ 13). Four of Case 17-2066, Document 51, 10/19/2017, 2152343, Page23 of 57 15 the exhibits are memoranda generated by DOJ attorneys in the course of separate, prior criminal investigations into the deaths of particular detainees; they reflect legal analysis and recommendations regarding potential criminal prosecutions, and thus were privileged separate and apart from their inclusion as attachments to the Supplemental Recommendation Memoranda. (JA 271-72 ¶ 14). The district court held, however, that each of these exhibits constituted “ ‘facts’ upon which Mr. Durham and his team relied in their reasoning or conclusions,” and thus were subject to adoption as well. (SPA 47). Summary of the Argument The five prosecution memoranda at issue here are highly sensitive documents that carefully and extensively review the government’s investigations and evidence gathered in contemplation of a criminal case, including the prosecutors’ legal analysis, opinions, and deliberations. They are accordingly—and uncontestedly—protected by FOIA’s Exemption 5 as attorney work product. See infra Point A. The district court erroneously ordered their disclosure, holding that DOJ expressly adopted the prosecution memoranda by announcing to the public its decisions whether to proceed with investigations or charges, even though those announcements made no reference to the documents or their reasoning. That decision must be reversed for at least two reasons. First, the express adoption doctrine was developed as a limit on the deliberative process privilege, and Case 17-2066, Document 51, 10/19/2017, 2152343, Page24 of 57 16 there is no basis to conclude that the doctrine can overcome the quite different attorney work-product privilege. The justification for the “express adoption” doctrine, as explained by the Supreme Court in the seminal case of NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), was specific to documents shielded by the deliberative process privilege and was based on that privilege’s unique relationship with another statutory provision in FOIA, 5 U.S.C. § 552(a)(2), which requires an agency to publish its final opinions resolving adjudications of private disputes. That rationale offers no support for the district court’s decision here, which undermines the near-inviolate protection afforded to an attorney’s mental impressions and opinions. Opening up prosecutorial files for public inspection in the manner contemplated by the district court, and exposing DOJ’s candid evaluations of evidentiary issues, legal theories, and defense strategies, would risk serious harm to the Department’s law enforcement efforts. See infra Point B. Second, even if the express adoption doctrine could apply, the district court was wrong to conclude that the documents at issue here had been adopted by vague and general references to the investigation and recommendations. The district court improperly relied upon cursory statements from the Attorney General that did nothing more than announce DOJ’s decisions to initiate or close investigations, while referring generally to the existence of an investigation and the resulting recommendations. But those statements said nothing about any of the detailed and case-specific reasoning in those documents, let alone indicated that DOJ had adopted that reasoning as its own. The district court Case 17-2066, Document 51, 10/19/2017, 2152343, Page25 of 57 17 acknowledged that it had not followed the ordinary meaning of the term “express” in applying the “express adoption” doctrine—rather than considering whether an agency decisionmaker had explicitly referred to the reasoning of the documents, the district court instead evaluated whether the “conduct” of the agency evinced an intent to adopt the documents generally. That is not the standard repeatedly emphasized by this Court, which requires explicit adoption of the rationale of a particular document as the agency’s own reasoning. Without that, there is no way to know whether a decisionmaker who concurs in a conclusion does so for the same reasons set forth in a particular document recommending that conclusion. The requirement that adoption be “express” protects against the result ordered here: requiring public disclosure of extremely sensitive internal memoranda prepared by government prosecutors dealing with potential criminal prosecutions simply because the government has announced how it plans to proceed in a particular case. That contradicts the case law, and would be highly detrimental to the proper functioning of the criminal justice system. See infra Point C.1. The brief and generalized statements made by the Attorney General, the relevant portions of which were only a few sentences long, did not indicate that DOJ had adopted any, much less all, of the reasoning contained in 525 pages of five legal memoranda and accompanying exhibits. The Attorney General’s statements at most acknowledged that he agreed with the conclusions reached by Durham. But as this Court and Case 17-2066, Document 51, 10/19/2017, 2152343, Page26 of 57 18 others have made clear, a decisionmaker’s simple concurrence with a prosecutor’s bottom-line recommendations with respect to the initiation of a criminal prosecution is not sufficient to constitute express adoption of the underlying rationale, or to undercut FOIA’s Exemption 5. This guiding principle should apply with particular force here, as these memoranda lie at the core of the Executive Branch’s constitutionally protected exercise of prosecutorial discretion, a function that is generally insulated from judicial review. See infra Point C.2. Accordingly, the district court’s judgment should be reversed. ARGUMENT Standard of Review This Court reviews de novo a grant of summary judgment, including in FOIA cases. Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009). In a FOIA case, “[a]ffidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden,” and are “accorded a presumption of good faith.” Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994) (footnote and quotation marks omitted). The Five Memoranda Are Shielded from Disclosure Under Exemption 5 The five records at issue in this case—the Final Recommendation Memorandum, the two Supplemental Recommendation Memoranda, and the two Case 17-2066, Document 51, 10/19/2017, 2152343, Page27 of 57 19 Declination Memoranda—are quintessential attorney work product and thus shielded from disclosure by Exemption 5. The district court erred in concluding that the documents had been expressly adopted by the government and thus had lost the protection of Exemption 5. The express adoption doctrine does not apply to overcome the work-product privilege. Moreover, the government did not in fact expressly adopt the memoranda at issue. The district court’s decision must therefore be reversed. A. The Five Memoranda Constitute Privileged Attorney Work Product FOIA’s statutory exemptions reflect Congress’s recognition that some government records should not be disclosed. The statute strikes “a balance . . . between the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” Center for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003). FOIA Exemption 5 protects internal documents that “would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 “incorporate[s] into the FOIA all the normal civil discovery privileges.” Hopkins v. HUD, 929 F.2d 81, 84 (2d Cir. 1991). Those indisputably include the attorney work-product doctrine. Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); accord Tigue v. DOJ, 312 F.3d 70, 76 (2d Cir. 2002). The attorney work-product privilege protects documents “prepared in anticipation of litigation,” as well as “mental impressions, conclusions, opinions, or legal Case 17-2066, Document 51, 10/19/2017, 2152343, Page28 of 57 20 theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975) (“Whatever the outer boundaries of the attorney’s work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney’s theory of the case and his litigation strategy.”); A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 146 (2d Cir. 1994); Hickman v. Taylor, 329 U.S. 495, 509-10 (1947). The doctrine is designed “to avoid chilling attorneys in developing materials to aid them in giving legal advice and in preparing a case for trial.” John Doe Corp. v. United States, 675 F.2d 482, 492 (2d Cir. 1982). Without such protection, an entity would have to choose between “scrimp[ing] on candor and completeness” or disclosing its “assessment of its strengths and weaknesses . . . to litigation adversaries.” United States v. Adlman, 134 F.3d 1194, 1200 (2d Cir. 1998). The privilege (and thus FOIA Exemption 5) protects all parts of a document “prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like.” Tax Analysts v. IRS, 117 F.3d 617, 620 (D.C. Cir. 1997). The attorney work-product doctrine thus protects the zealous advocacy that is necessary for the functioning of an adversarial system of justice, and to prevent the “ ‘inefficiency, unfairness and sharp practice [that] would inevitably develop’ ” if attorneys could not prepare written materials in anticipation of litigation without fear that those documents could be demanded by an adversary. United States v. Nobles, 422 U.S. 225, 237 (1975) (quoting Hickman, 329 U.S. at Case 17-2066, Document 51, 10/19/2017, 2152343, Page29 of 57 21 511); accord Rockwell Int’l Corp. v. DOJ, 235 F.3d 598, 605 (D.C. Cir. 2001). The doctrine and its underlying policy concerns apply equally in criminal and civil litigation. See, e.g., Nobles, 422 U.S. at 238 (“its role in assuring the proper functioning of the criminal justice system is even more vital”). And the privilege also applies to documents created in anticipation of litigation contemplated but not undertaken, including a prosecutor’s impressions of an ongoing or completed criminal investigation. See National Ass’n of Criminal Defense Lawyers v. DOJ Exec. Office for United States Attorneys, 844 F.3d 246, 25455 (D.C. Cir. 2016) (citing In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)). Thus, this Court and others have consistently recognized that prosecution memoranda such as those at issue in this case, analyzing whether to initiate a criminal investigation or commence a criminal prosecution, are privileged attorney work product. Wood v. FBI, 432 F.3d 78, 84 (2d Cir. 2005); United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000); see A. Michael’s Piano, 18 F.3d at 146-47. Indeed, the definition of protected work product in the Federal Rules of Criminal Procedure includes “reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case,” Fed. R. Crim. P. 16(a)(2); see National Ass’n of Criminal Defense Lawyers, 844 F.3d at 250 (citing Rule 16(a)(2) as encompassing work-product rule in FOIA case); Pacific Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (same). Case 17-2066, Document 51, 10/19/2017, 2152343, Page30 of 57 22 In addition, a federal prosecutor’s decision to pursue or decline to bring criminal charges is generally protected from scrutiny because of the central role that the Attorney General and United States Attorneys play in the criminal justice system. The Supreme Court has repeatedly emphasized that a decision not to indict is a “ ‘special province’ of the Executive.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)); see id. (“The Attorney General and United States Attorneys retain broad discretion to enforce the Nation’s criminal laws.” (quotation marks omitted)). Unlike most other final decisions by a federal agency, the decision not to bring criminal charges is presumptively immune from judicial review. See Armstrong, 517 U.S. at 464; Chaney, 470 U.S. at 832. The work-product privilege, as applied to prosecution memoranda, shields an essential part of that constitutionally protected decisionmaking process. Plaintiffs and the district court acknowledged that the work-product doctrine applies to the five documents at issue in this case. The memoranda at issue here set forth the evidence obtained by prosecutors, discuss the sufficiency of that evidence, evaluate the potential admissibility of evidence at trial, analyze the types of criminal charges that could be brought against potential targets, and weigh the potential strengths and weaknesses of various legal strategies and possible defenses that could arise in a criminal prosecution. (JA 108-09 ¶¶ 14-18, JA 123 ¶ 23). Each memorandum was clearly prepared “because of the prospect of litigation, analyzing the likely outcome of that litigation,” Adlman, 134 F.3d at 1202, and each is replete Case 17-2066, Document 51, 10/19/2017, 2152343, Page31 of 57 23 with attorneys’ mental impressions and opinions. The five documents thus exemplify the materials protected by the attorney work-product doctrine: they provide federal prosecutors the opportunity to engage in a full and frank assessment of evidence and the law prior to bringing criminal charges, and they document the prosecutors’ detailed legal analysis for internal review and consideration by supervisors and other decisionmakers. Under basic discovery principles, there is no question that the memoranda would “not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). B. The Express Adoption Doctrine Cannot Overcome the Attorney Work-Product Privilege In another case involving DOJ prosecution memoranda, this Court expressly declined to decide whether the express adoption doctrine of Sears applies to attorney work product. See Wood, 432 F.3d at 84 (holding that prosecution memorandum had not been adopted by supervisor’s concurrence with recommendation). This case presents an appropriate opportunity to recognize that the work-product privilege is not subject to the adoption doctrine, and that prosecution memoranda in particular are not subject to disclosure on a theory of express adoption. Case 17-2066, Document 51, 10/19/2017, 2152343, Page32 of 57 24 1. The Rationale of the Express Adoption Doctrine Does Not Apply in the Work Product Context The express adoption doctrine derives from the Supreme Court’s 1975 decision in Sears, which recognized the doctrine as a limitation on the scope of the deliberative process privilege, a uniquely governmental privilege also protected by FOIA Exemption 5. The Court in Sears held that the deliberative process privilege does not apply to internal agency documents that were expressly adopted by an agency’s administrative decision resolving an adjudication involving private parties. Sears, 421 U.S. at 153-54, 161. Sears concluded that the scope of the deliberative process privilege should be bounded by FOIA’s statutory directive that agencies must publish their “final opinions” issued in the administrative “adjudication of cases” between private parties. 5 U.S.C. § 552(a)(2), cited in Sears, 421 U.S. at 153. By contrast, the Court in Sears upheld the applicability of Exemption 5 to documents protected by the attorney work-product privilege, and rejected the argument that the work-product privilege protecting those documents could be overcome by the express adoption doctrine. 421 U.S. at 160. The Court later reiterated that its holding in Sears was limited to documents covered by the deliberative process privilege, and did not reach documents protected by other Exemption 5 privileges, in particular attorney work product. Federal Open Market Committee v. Merrill, 443 U.S. 340, 360 n.23 (1979). In Merrill, the Court ob- Case 17-2066, Document 51, 10/19/2017, 2152343, Page33 of 57 25 served that the premise in Sears for the express adoption doctrine—the statutory affirmative disclosure obligation for final agency decisions—was only relevant to “the privilege for predecisional communications.” Id. (noting that nondisclosure under the work-product privilege was upheld in Sears, despite the documents’ otherwise being within the affirmative disclosure obligation of § 552(a)(2)). The Supreme Court further explained why the logic of Sears did not apply to other Exemption 5 privileges: “It should be obvious that the kind of mutually exclusive relationship between final opinions and statements of policy, on one hand, and predecisional communications, on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges.” Id. The Supreme Court’s narrow decision in Sears does not support a broader application of the express adoption doctrine to circumstances beyond an agency’s adoption of internal deliberative documents by final agency opinions in adjudication of private party disputes, and certainly does not support expansion of the doctrine to overcome the work-product privilege in the context of prosecution memoranda. The D.C. Circuit has correctly recognized that the express adoption doctrine cannot overcome the attorney work-product privilege where a DOJ document protected by the workproduct privilege was not subject to the affirmative disclosure requirement in § 552(a)(2). See Rockwell, 235 F.3d at 603. This Court should do the same. The district court relied in part on Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 974 (7th Cir. 1977). (SPA 11 n.1, 21). But Niemeier was Case 17-2066, Document 51, 10/19/2017, 2152343, Page34 of 57 26 based on a misreading of Sears—assuming that the Supreme Court had held that express adoption would overcome the work-product doctrine, see id. at 974 n.23 —which the Supreme Court later corrected in Merrill. 3 The Seventh Circuit has not considered the effect of Merrill on the scope of the express adoption doctrine. Niemeier also differs from the present case, as the Seventh Circuit observed that the legal memoranda at issue there had been explicitly incorporated into a final agency opinion within the meaning of § 552(a)(2)(A). Id. at 972-73. The government’s decisions here—to end the preliminary review of some matters, to open full criminal investigations into others, and not to bring charges following a grand jury investigation—are not final opinions subject to FOIA’s affirmative disclosure requirement in § 552(a)(2). Indeed, the court in Niemeier was clear that its “very narrow” holding did not extend to prosecution memoranda of the type at issue here, noting that in Sears, the Supreme Court specifically found that an analogy between an agency adjudication and a prosecutor’s decision “ ‘not to prosecute’ ” was flawed. 565 F.2d at 972 (quoting 421 U.S. at 156 n.22); see Sears, 421 U.S. at 156 n.22 (rejecting analogy between NLRB’s decision in that case and a “ ‘public ————— Similarly, Bristol-Meyers Co. v. FTC, 598 F.2d 18, 24 n.11, 29 n.23 (D.C. Cir. 1978), which stated but did not hold (as the question was not presented) that express adoption could overcome work-product protection, was also decided before Merrill. As noted above, since Merrill, the D.C. Circuit has held to the contrary in Rockwell. 3 Case 17-2066, Document 51, 10/19/2017, 2152343, Page35 of 57 27 prosecutor’s authority to decide whether a criminal case should be brought’ ”). 4 The express adoption doctrine is simply inapt in the context of a prosecutor’s decision about whether to open or end an investigation, or whether to bring charges. The fact that the Department of Justice publicly announces its ultimate charging decisions—an announcement that informs and benefits the public— in no way undermines the need to maintain the confidentiality of the prosecutors’ detailed analysis of the strengths and weaknesses of a potential criminal case. To the contrary, the public acknowledgment of a charging decision does nothing to diminish the compelling need to protect the inviolability of a prosecutor’s confidential analysis regarding legal strategy, litigation risks, legal precedent, and the viability of potential defense arguments. See FBI v. Abramson, 456 U.S. 615, 630 (1982) (while “purposes behind Exemption 5” of protecting predecisional process are not violated by disclosure of expressly adopted record, purposes of other exemptions “may well remain intact” despite incorporation into other records). To the extent this Court were to disagree with the government’s argument that the express adoption doctrine should not be applied to the attorney work-prod————— Niemeier also incorrectly treated the work-product privilege as a subset of the attorney-client privilege, failing to acknowledge the important differences between the two privileges. 565 F.2d at 974 n.23. 4 Case 17-2066, Document 51, 10/19/2017, 2152343, Page36 of 57 28 uct privilege, the government seeks to preserve for further review its argument that the express adoption doctrine in FOIA cases recognized in Sears should be understood to apply only in certain administrative adjudicatory contexts. It is the government’s position that, if a relevant litigation privilege would otherwise be recognized under Exemption 5, the express adoption doctrine displaces the application of Exemption 5 only where, as in Sears, an agency’s “final opinion” in an administrative “adjudication” of a “case[ ]” involving a private party “expressly” adopts as the agency’s adjudicatory rationale the internal agency memorandum sought in a FOIA request. 5 The government ————— The Court in Sears reasoned that, although FOIA “ ‘does not apply’ to” any document protected by a FOIA exemption listed in § 552(b), see Sears, 421 U.S. at 136, 148, the Court was “reluctant . . . to construe Exemption 5 to apply to the documents described in 5 U.S.C. § 552(a)(2),” “at least” to the extent that they involve “ ‘final opinions . . . made in the adjudication of cases.’ ” Id. at 153; see id. at 136 & n.1 (quoting § 552(a)(2)). Sears thus ultimately “h[e]ld” that, as the Court understood the government to concede, “Exemption 5 does not apply to any document which falls within the meaning of the phrase “ ‘final opinion . . . made in the adjudication of cases.’ ” Id. at 148 (quoting § 552(a)(2)); accord id. at 153-154. The Court then determined that the agency decision documents before it constituted “ ‘final opinions’ made in the ‘adjudication of cases’ ” under the Administrative Procedure Act. Id. at 158-59. In that particular adjudicatory context, Sears held that “if an agency chooses expressly to adopt 5 Case 17-2066, Document 51, 10/19/2017, 2152343, Page37 of 57 29 acknowledges, however, that the panel is bound by the precedential decisions of this Court, which have extended the express adoption doctrine beyond that adjudicatory context. 2. The District Court Erred in Equating the Attorney-Client and Work-Product Privileges In holding that the express adoption doctrine could be applied to overcome the attorney work-product privilege, the district court erroneously analogized the work-product doctrine to the attorney-client privilege. (SPA 12-13). This Court has held that the latter can be overcome by express adoption. National Council of La Raza v. DOJ, 411 F.3d 350, 360 (2d Cir. 2005) (holding that purpose served by attorney-client privilege “evaporates” when document is adopted as agency policy). But there is no justification for extending that holding to the work-product doctrine. The attorney work-product and attorney-client privileges serve distinct purposes, and have different scopes. “ ‘The purposes of the work product privilege are more complex’ ” than those supporting the attorney-client privilege, Rockwell, 235 F.3d at 605 (quoting In re ————— or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum” is no longer protected by Exemption 5. Id. at 161 (second emphasis added); see also id. at 138 (emphasizing that the particular “administrative process” at issue in Sears was “[c]rucial to the [Court’s] decision”). Case 17-2066, Document 51, 10/19/2017, 2152343, Page38 of 57 30 Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982)); see Nobles, 422 U.S. at 238 n.11 (1975) (work product is “distinct from, and broader than, the attorney-client privilege”). While the attorney-client privilege focuses on encouraging candid and confidential communications between attorneys and clients for the purpose of ensuring the provision of fully informed legal advice, La Raza, 411 F.3d at 360, work product exists to protect the zealous advocacy that is necessary for the functioning of an adversarial system of justice, and to prevent the “ ‘inefficiency, unfairness and sharp practices [that] would inevitably develop’ ” if attorneys could not prepare written materials in anticipation of litigation without fear that those documents could be demanded by an adversary. Nobles, 422 U.S. at 237 (quoting Hickman, 329 U.S. at 511); accord Rockwell, 235 F.3d at 605 (“The purpose of the privilege . . . [is] to protect the adversary trial process itself.” (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980))). The district court disregarded the important differences between the two privileges. In so doing, the district court failed to acknowledge that the functions served by the work-product doctrine do not “evaporate[ ],” La Raza, 411 F.3d at 360, but remain in full force even after the government announces a decision in a particular case. This is particularly true with respect to the types of prosecutorial memoranda at issue here. Disclosure of such memoranda would jeopardize the government’s position not just in one particular case, but in numerous future prosecutions. (JA 125 ¶ 24, JA 106 ¶ 10 (analysis in Case 17-2066, Document 51, 10/19/2017, 2152343, Page39 of 57 31 memoranda “appl[ies] to other current or contemplated prosecutions involving similar evidence or similar contemplated charges”)). An intrusion into the realm of prosecutorial deliberations of the type the district court ordered here has the potential to chill law enforcement, undermine the effectiveness of prosecutions, and diminish deterrence by disclosing enforcement considerations. See, e.g., Armstrong, 517 U.S. at 465; FTC v. Grolier, Inc., 462 U.S. 19, 30-31 (1983) (Brennan, J., concurring) (explaining that recurrence of legal and factual issues in government cases means disclosure of work product would allow adversaries insights into government’s strategic approaches, contrary to policy of work-product rule). The district court also concluded that, because both the work-product and attorney-client privileges can be waived, the express adoption doctrine should apply to both. (SPA 12-13) (citing John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003)). Yet the adoption doctrine in Sears is not founded on the principles of waiver that limit the attorney-client or work-product privileges. Even assuming waiver doctrines were relevant to this inquiry, the fact that work-product protection can in some instances be waived or forfeited does not justify equating the two privileges for purposes of determining whether they can be overcome by the express adoption doctrine. For example, the Brennan Center Court relied on waiver principles in determining that Exemption 5 did not shield a document that was attorney-client privileged. See 697 F.3d at 207-08. But the waiver doctrine invoked in Brennan Center would not Case 17-2066, Document 51, 10/19/2017, 2152343, Page40 of 57 32 apply to opinion work product. See, e.g., In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1300-02 (Fed. Cir. 2006); Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994); In re Martin Marietta Corp., 856 F.2d 619, 626 (4th Cir. 1988). Unlike attorney-client communications, not every disclosure of attorney work-product to a third party results in waiver. See 8 Wright & Miller, Federal Practice & Procedure § 2024 & n.67 (3d ed.) (citing cases). 6 Relying upon these principles, the D.C. Circuit concluded in an analogous case that the work-product privilege was not waived when the Department of Justice relied on legal memoranda to justify prosecutorial decisions, even where the agency made selective disclosures from those memoranda. Rockwell, 235 F.3d at 606-07. The D.C. Circuit reasoned that DOJ’s actions in releasing only portions of the underlying prosecutorial memoranda were not inconsistent with keeping the remaining portions of the memoranda secret. Id. at 605. In this case, the government has not made any disclosures, selective or otherwise, from the memoranda at issue. The government has done nothing more than announce the initiation, and then the conclusion, of various criminal investigations. As discussed further ————— This Court’s decision in John Doe Co. illustrates the point: the Court there held that there was no forfeiture of fact work product where a reference to workproduct material did not subject an opposing party to any unfairness. 350 F.3d at 302-04. 6 Case 17-2066, Document 51, 10/19/2017, 2152343, Page41 of 57 33 below, these routine actions are insufficient to vitiate the work-product protections that indisputably apply to prosecutorial memoranda. C. There Has Been No Express Adoption Here Even assuming that the express adoption doctrine could overcome the work-product privilege, there was no adoption of the five prosecution memoranda at issue in this appeal. The district court pointed to two DOJ statements referring generally to the Durham investigation, praising its thoroughness, agreeing with Durham’s conclusions, and announcing the government’s decisions regarding the criminal investigations. Those statements do not satisfy the stringent requirements consistently recognized by this Court as essential to application of the express adoption doctrine. For the doctrine to overcome a document’s privileged status, (1) the adoption must be express, and (2) the specific reasoning of the otherwise privileged document must be adopted by the agency decisionmaker. Neither has occurred here. 1. The Express Adoption Doctrine Requires That a Decisionmaker Publicly and Expressly Adopt the Reasoning of a Document as the Basis for the Agency’s Decision The express adoption doctrine applies only when an agency expressly adopts the reasoning of the privileged document as its own reasoning and the rationale for the agency’s official position. The Attorney General’s bare and cursory statements, which do not even Case 17-2066, Document 51, 10/19/2017, 2152343, Page42 of 57 34 explicitly refer to any of the five prosecution memoranda, do not suffice to constitute the kind of express adoption that overcomes the protections of the attorney work-product privilege and results in disclosure of sensitive prosecution memoranda. Indeed, those statements say nothing about the particular documents at issue here or their rationale. The district court’s approach was flawed at the outset because it was premised on the erroneous belief that an agency can adopt the analysis of a privileged document within the meaning of Sears and La Raza, even if the agency’s public statements do not expressly or explicitly adopt the document’s rationale as the agency’s own, or even refer to the existence of the privileged document. (SPA 13-14 (concluding that “ ‘express’ . . . does not mean ‘express’ as that term is ordinarily used”)). That holding is at odds with governing law. In Sears, the Supreme Court emphasized—literally—the requirement that adoption be express: a document loses Exemption 5 protection under the deliberative process privilege “if an agency chooses expressly to adopt or incorporate [it] by reference.” 421 U.S. at 161 (emphasis in original). Similarly, the Court repeated the word “expressly” in a later decision (also addressing the deliberative process privilege). See Abramson, 456 U.S. at 630 (“purposes behind Exemption 5, protecting the give-and-take of the decisional process, were not violated by disclosure once an agency chooses expressly to adopt a particular text as its official view”). This Court and others have clearly and consistently adhered to the requirement that adoption must be “express.” Case 17-2066, Document 51, 10/19/2017, 2152343, Page43 of 57 35 Accordingly, it is well established that courts cannot simply infer that an agency has adopted the reasoning of an otherwise privileged document as its own, even where the agency has accepted the document’s conclusions. In Renegotiation Board v. Grumman Aircraft Engineering Corp., for example, the Supreme Court held that public disclosure of a predecisional document is not required “even when [the agency] agrees with [its] conclusions” in a final opinion, unless the agency expressly adopts the reasoning of that document as its own reasoning and as the basis for the final opinion. 421 U.S. 168, 184-86 (1975) (no disclosure of document absent “indication that its reasoning has been adopted” by the agency). Similarly, this Court has stated that when an agency “simply adopted only the conclusions” of a privileged document, disclosure may not be ordered. La Raza, 411 F.3d at 358. “Mere reliance on a document’s conclusions does not necessarily involve reliance on a document’s analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference.” Id. (citing Grumman, 421 U.S. at 185-86); accord Wood, 432 F.3d at 84; Abtew v. Dep’t of Homeland Security, 808 F.3d 895, 899 (D.C. Cir. 2015) (“wrong and misleading to think that initialing [of memo by final decisionmaker] necessarily indicates adoption or approval of all of the memo’s reasoning”); New Hampshire Right to Life v. Dep’t of Health & Human Services, 778 F.3d 43, 55 (1st Cir.), cert. denied, 136 S. Ct. 383 (2015); Casad v. Dep’t of Health & Human Services, 301 F.3d 1247, 1252-53 (10th Cir. 2002); Tigue, 312 F.3d at 81 (emphasizing distinction “be- Case 17-2066, Document 51, 10/19/2017, 2152343, Page44 of 57 36 tween ‘reference to a report’s conclusions [and] adoption of its reasoning,’ and noting that ‘it is the latter that destroys the privilege’ ” (quoting Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1197 (D.C. Cir. 1991))). In particular, “where an agency, having reviewed a subordinate’s non-binding recommendation, makes a ‘yes or no’ determination without providing any reasoning at all, a court may not infer that the agency is relying on the reasoning contained in the subordinate’s report.” La Raza, 411 F.3d at 359. Although specific language is not necessary, id. at 357 n.5, this Court has been clear and consistent that adoption of a document’s reasoning must be “express.” See Wood, 432 F.3d at 84. In La Raza, for example, the Court concluded that DOJ had adopted a memorandum prepared by the Office of Legal Counsel (“OLC”) because the Department had repeatedly, publicly, and expressly “embraced the OLC’s reasoning as its own.” 411 F.3d at 359. The Court held that DOJ’s invocation of the memorandum to assure the public of the lawfulness of its actions, and to urge states and localities to take action, showed that DOJ “explicitly adopted the OLC Memorandum as part of its policy.” Id. at 359-60 (emphasis added); see id. at 360 n.7 (referring to “the reasoning referenced and relied on by Department officials”). In contrast, Wood held that the requirements for express adoption had not been met, in part because there was no evidence “that DOJ adopted the reasoning of the Memo.” Id. Indeed, in that case “neither [the endorsing official] nor any other high-level officials made any public references” at all to the document at Case 17-2066, Document 51, 10/19/2017, 2152343, Page45 of 57 37 issue. Id. And in Tigue, the Court held that “minor references” to a document were not sufficient to show express adoption of a document’s reasoning. 312 F.3d at 81; accord Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981) (“[C]asual allusion in a post-decisional document to subject matter discussed in some pre-decisional, intra-agency memoranda is not the express adoption or incorporation by reference which . . . would remove the protection of Exemption 5.”). Similarly, in Brennan Center, this Court rejected express adoption arguments concerning two of the three documents at issue. 697 F.3d at 205-06. The Court concluded that one document had been adopted because an agency had made “explicit reference” to both the document and its rationale in public statements, demonstrating the agency’s reliance on that document. Id. at 204-05 (finding “sufficient reliance on both the conclusion and reasoning of the OLC memorandum”). But as for the other two documents, there had been no “specific reference to the . . . memoranda” or their reasoning by the relevant agencies. Id. at 206 (“[T]he fact that the agencies acted in conformity with the July memoranda [does not] establish that the agencies adopted their reasoning.”). The Court rejected an argument that a generalized reference to “guidance from the Department of Justice” was sufficient to indicate that the agency had “adopted the reasoning” of the specific OLC memoranda at issue. Id. Even though the agencies had acted consistently with the conclusions of those two documents, there was no evidence that they had “expressly adopted or incorporated by reference” the reasoning of those documents, Case 17-2066, Document 51, 10/19/2017, 2152343, Page46 of 57 38 and therefore Exemption 5 protected them from disclosure. Id. This Court’s cases thus make clear that “express adoption” based on public statements must indeed be express—the decisionmaker must make a considered public reference to the document, demonstrating reliance on the reasoning of the document as the basis for agency policy. Other courts of appeals agree: an “ ‘implied adoption’ theory is neither supported by the plain language of Exemption 5 nor the related caselaw, and would disserve the recognized aims of Exemption 5.” Providence Journal Co. v. Dep’t of the Army, 981 F.2d 552, 558 (1st Cir. 1992); see New Hampshire Right to Life, 778 F.3d at 54; Casad, 301 F.3d at 1252; Access Reports, 926 F.2d at 1197 (possible reference to report “fell far short of the express adoption required by Sears”); Brinton v. Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980) (even where documents later “used extensively” by agency, that is insufficient for express adoption); Shermco Industries, Inc. v. Sec’y of Air Force, 613 F.2d 1314, 1319-20 (5th Cir. 1980). In short, Sears held that “adoption or incorporation must be express.” Swisher v. Dep’t of Air Force, 660 F.2d 369, 371 (8th Cir. 1981). In departing from this authority, the district court relied on this Court’s decision in New York Times Co. v. DOJ, 756 F.3d 100, 116 (2d Cir.), opinion amended on denial of reh’g, 758 F.3d 436 (2d Cir. 2014). (SPA 14). But that decision is inapposite. New York Times relied on a waiver theory for its holding, not the express adoption rule. And in fact there were explicit Case 17-2066, Document 51, 10/19/2017, 2152343, Page47 of 57 39 references to the substance and analysis of the document at issue in that case. Id. at 115-16. New York Times, therefore, does not support the district court’s conclusion that express adoption need not be express. In sum, contrary to the district court’s decision, express adoption under Sears does not occur whenever an agency merely announces that a decision has been made, but does not publicly rely on the reasoning of any particular document as the basis for that decision. The district court’s conclusion would lead to an improper inquiry into, or assumption about, the motivations of the decisionmaker: where the Attorney General merely accepts a prosecutor’s recommendations, without indicating agreement with each (or any) of the bases the prosecutor may have articulated in arriving at that recommendation, it would be improper to assume that the Attorney General agreed with the entire rationale of any underlying recommendation. The district court’s approach “would require that every document relied upon by an agency in reaching a decision be subject to disclosure. Put another way, the greater the role a document played in the predecisional process, the more likely the document would be subject to disclosure. This argument turns exemption five on its head.” Casad, 301 F.3d at 1252; accord New Hampshire Right to Life, 778 F.3d at 54 (adoption argument based on mere adherence to advice is unsupported “unless one presumes that every time an agency acts in accord with counsel’s view it necessarily adopts counsel’s view as ‘policy of the Agency.’ As a categorical rule this makes no sense . . . .”). The re- Case 17-2066, Document 51, 10/19/2017, 2152343, Page48 of 57 40 quirement that express adoption be indicated by express reference to and reliance on the document’s reasoning ensures that the public does not improperly attribute to the decisionmaker reasons that might not reflect the actual basis for the decision. See Brennan Center, 697 F.3d at 206; Access Reports, 926 F.2d at 1197. That caution is particularly important in the context of prosecutorial judgment, where there is no obligation to provide any detailed explanation for a decision to open or close a criminal investigation, or to decline to bring charges. Cf. Armstrong, 517 U.S. at 464; Grumman, 421 U.S. at 191-92 (rejecting view that agency has an “affirmative obligation under [FOIA] to make public the reasons for its decisions; and that it must disclose its opinion or the nearest thing to an opinion in every case”). Indeed, the district court’s position would discourage the Executive Branch from providing the public with even basic information about investigations and charging decisions. As the D.C. Circuit observed in Rockwell, forcing DOJ to choose between greater transparency and protecting the underlying work product of its prosecutors would ill serve the public interest, as government officials should have “every incentive to disclose the results of internal investigations.” 235 F.3d at 607. But to require the government to disclose sensitive prosecutorial memoranda simply because an official announces the charging decision, refers to a recommendation, or briefly describes the underlying investigation, would create a strong deterrent to even the most basic efforts at transparency, thereby making the public less well in- Case 17-2066, Document 51, 10/19/2017, 2152343, Page49 of 57 41 formed about the operations of its government, contrary to the central purpose of FOIA. See New Hampshire Right to Life, 778 F.3d at 55 (requiring disclosure of legal advice “could well reduce the likelihood that advice will be sought”). 2. The Prosecutorial Memoranda Were Not Expressly Adopted None of the Attorney General’s statements, taken separately or together, establish that DOJ expressly adopted the analysis contained in any of the five prosecution memoranda as the official justification for the decisions reached. a. The Final Recommendation Memorandum and Supplemental Recommendation Memoranda The district court concluded that the Final Recommendation Memorandum and related Supplemental Recommendation Memoranda were expressly adopted by the Attorney General in the June 2011 public statement, which included the following language: “Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. . . . The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.” (JA 147). Yet the Attorney General did not discuss or refer to any rationale underlying Durham’s recommendations, or any rationale for his own decision to accept those recommendations. The district court erred in concluding that this statement expressly adopted the memoranda. Case 17-2066, Document 51, 10/19/2017, 2152343, Page50 of 57 42 The Attorney General’s cursory acceptance of Durham’s recommendations is similar to the facts in Wood, 432 F.3d at 84, where a DOJ official simply indicated his concurrence with a memorandum recommending against a criminal prosecution. Id. This Court held that was not sufficient to establish express adoption, because when a decisionmaker merely accepts a recommendation set forth in a memorandum, it is not evident that the decisionmaker had also adopted the reasoning of the memorandum. Id.; accord Abtew, 808 F.3d at 899 (holding that a supervisor’s acceptance of a recommendation did not “transform” that recommendation into the agency’s “final decision”). As in Wood and Abtew, the Attorney General here accepted Durham’s recommendations without any substantive comment about any rationale, and his public statement “did not mention [the memoranda] at all.” Abtew, 808 F.3d at 899. Therefore, his acceptance of the recommendations did not mean he accepted the memoranda’s reasoning. The district court reasoned that the Attorney General presented Durham’s recommendations as “DOJ’s authoritative examination of ‘the detainee treatment issue.’ ” (SPA 18). That description is both inapposite and factually inaccurate: the Attorney General observed that Durham had “thoroughly examine[d] the detainee treatment issue,” but the statement did not describe the investigation as “authoritative.” (JA 147). But a description of a thorough (or even an authoritative) investigation is not in any event an adoption of, or even a reference to, any reasoning or analysis underlying the recommendations that came out of that investigation. Case 17-2066, Document 51, 10/19/2017, 2152343, Page51 of 57 43 Nor is there anything in the language of the DOJ statement to support the district court’s observation that the Attorney General “invoke[d] Durham’s legal analysis to justify and explain the Department’s policy,” or “frame[d] Durham’s recommendation as a basis for his decision.” (SPA 18 (alterations and quotation marks omitted)). In fact, the DOJ statement included no reference to (let alone any adoption of) any legal analysis by Durham. It made no announcements with regards to DOJ policy, let alone any invocation of the recommendation memoranda to explain DOJ policy. Wood, Brennan Center, and other cases make clear that the mere acceptance of a recommendation is not sufficient to demonstrate express adoption of a document’s reasoning. The district court’s overly broad approach to express adoption is reflected in its holding that even the exhibits attached to the Supplemental Recommendation Memoranda were expressly adopted as the official policy of DOJ because they constituted “facts” upon which Durham’s conclusions were based. (SPA 47). That conclusion was not based on any public reference to those attachments (indeed, there was no such reference). Moreover, with one exception, those documents were not even prepared by Durham or his team; nor do they reflect or set forth Durham’s reasoning in recommending that the Attorney General authorize a full criminal investigation. (JA 271-72 ¶¶ 13-14). It is impossible to conclude that these exhibits were expressly adopted simply because the Attorney General announced he was accepting Durham’s recommendation to initiate criminal investigations. The district court’s Case 17-2066, Document 51, 10/19/2017, 2152343, Page52 of 57 44 expansion of the adoption doctrine would impermissibly sweep within it documents that may not reflect agency policy, including even documents with which the decisionmaker disagrees. See Grumman, 421 U.S. at 185-86. Nothing in Sears, La Raza, or Brennan Center supports such a result. b. The Declination Memoranda Similarly, the district court erred in determining that DOJ expressly adopted the rationale of the two Declination Memoranda when the Attorney General announced in August 2012 that the criminal investigations were being closed. Again, the August 2012 statement does not refer to any detailed reasoning of the Declination Memoranda. Indeed, it does not even identify the documents. In holding that the Attorney General had adopted the Declination Memoranda’s rationale, the district court first stated that the Attorney General’s public statements “present[ed] the decision not to prosecute as fundamentally a determination made by Durham.” (SPA 19 (emphasis omitted)). But irrespective of who makes a decision to prosecute, the government is under no obligation to disclose the reasons for that decision. Unlike the NLRB charging decisions in Sears, DOJ’s prosecution decisions are not subject to FOIA’s affirmative disclosure requirement—which requires an agency to disclose its decisions in adjudications of private disputes. 5 U.S.C. § 552(a)(2)(A). The Supreme Court has consistently and repeatedly emphasized that the Attorney General and United States Attorneys “retain broad discretion to enforce the Nation’s Case 17-2066, Document 51, 10/19/2017, 2152343, Page53 of 57 45 criminal laws . . . because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’ ” Armstrong, 517 U.S. at 464 (citing 28 U.S.C. §§ 516, 547); accord id. (citing cases); 28 U.S.C. §§ 509, 515(a), 519 (responsibility of Attorney General). That authority to decline to bring a prosecution is not reviewable, and compelling the disclosure of recommendations underlying those decisions would be inconsistent with the Supreme Court’s consistent refusal to second-guess the prosecutorial judgment of the Attorney General and others who make such decisions. In any event, even if the public statement could be read to refer to the memoranda’s conclusions, it does not expressly adopt or even mention their reasoning. The Attorney General praised Durham’s thorough investigation and consideration of the governing legal authorities, but did not describe or adopt Durham’s analysis. At most, this was the type of “minor reference[ ]” that “cannot be said to be an express adoption or incorporation” of the lengthy and detailed legal and factual analysis in the Declination Memoranda. Tigue, 312 F.3d at 81; see Grumman, 421 U.S. at 185-86 (where agency decisionmaker may have different reasons for reaching the same conclusion, disclosure of an internal recommendation would be “affirmatively misleading”). “Accordingly, these reports are not ‘final opinions’ [and] they do fall within the protection of Exemption 5.” Grumman, 421 U.S. at 186. Case 17-2066, Document 51, 10/19/2017, 2152343, Page54 of 57 46 The district court emphasized the statement’s characterization of the government’s decision: “the Department ha[s] declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” (SPA 19). That unadorned explanation of the government’s decision does not purport to describe or adopt any of the detailed reasoning in the Declination Memoranda. The district court correctly described it as “a fairly general reason for declining to prosecute.” (SPA 19). Indeed, the statement merely reiterates the standard that governs all DOJ decisions to commence or decline federal prosecution, as mandated by the publicly available “Principles of Federal Prosecution.” See United States Attorney’s Manual § 9-27.220 (prosecutors should commence or recommend prosecution upon belief that “the person’s conduct constitutes a federal offense [and] that the admissible evidence will probably be sufficient to obtain and sustain a conviction”). DOJ’s public reliance on these generally applicable principles cannot be deemed to constitute express reliance on any case-specific reasoning underlying the Department’s decision not to bring criminal charges. * * * In short, the public statements here do not suffice to show that DOJ publicly and explicitly “embraced” any particular document’s “reasoning as its own.” La Raza, 411 F.3d at 359. The Attorney General did not even allude to these protected documents, let alone affirmatively hold out the rationale of those memoranda as the justification or the basis for DOJ’s decisions. Case 17-2066, Document 51, 10/19/2017, 2152343, Page55 of 57 47 The Attorney General’s announcements of the decisions reached with respect to each investigation, accompanied only by bare references to Durham’s recommendations and to the thoroughness of the investigations, do not overcome the privileges that attach to the memoranda and properly shield them from public view. Case 17-2066, Document 51, 10/19/2017, 2152343, Page56 of 57 48 CONCLUSION The judgment of the district court requiring disclosure of the memoranda should be reversed. Dated: New York, New York October 19, 2017 Respectfully submitted, JOON H. KIM, Acting United States Attorney for the Southern District of New York, Attorney for Defendant-Appellant– Cross-Appellee. JEANNETTE A. VARGAS, BENJAMIN H. TORRANCE, Assistant United States Attorneys, Of Counsel. CHAD A. READLER, Acting Assistant Attorney General, DOUGLAS N. LETTER, MATTHEW M. COLLETTE, H. THOMAS BYRON III, Attorneys, Appellate Staff Civil Division, Department of Justice Case 17-2066, Document 51, 10/19/2017, 2152343, Page57 of 57 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned counsel hereby certifies that this brief complies with the type-volume limitation of the Federal Rules of Appellate Procedure and this Court’s Local Rules. As measured by the word processing system used to prepare this brief, there are 10,937 words in this brief. JOON H. KIM, Acting United States Attorney for the Southern District of New York By: JEANNETTE A. VARGAS, Assistant United States Attorney