April 11, 2018 VIA ELECTRONIC MAIL Melissa Golden Lead Paralegal and FOIA Specialist Office of Legal Counsel U.S. Department of Justice 950 Pennsylvania Avenue NW, Room 5511 Washington, DC 20530-0001 usdoj-officeoflegalcounsel@usdoj.gov Re: Freedom of Information Act Request Dear Ms. Golden: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing regulations of the Department of Justice (DOJ), 28 C.F.R. Part 16, American Oversight makes the following request for records. According to DOJ regulations, “[t]he Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General,” and only then for good cause. In light of Attorney General Sessions’s recusal, Deputy Attorney General Rod Rosenstein may exercise the duties of the attorney general in regard to Special Counsel Robert Mueller. On April 10, 2018, the president’s authority to fire the Special Counsel was the subject of several questions at the White House press briefing. In one series of questions, White House Press Secretary Sarah Huckabee Sanders had the following exchange with a reporter: 1 2 3 Q: I just want to clarify something you said earlier. You said the president believes he has the power to fire Robert Mueller, because 28 C.F.R. § 600.7(d). See 28 U.S.C. § 508(a); see also Rebecca R. Ruiz & Mark Landler, Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation, N.Y. TIMES, May 17, 2017, https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russiainvestigation.html. See Press Briefing by Press Secretary Sarah Sanders, The White House (Apr. 10, 2018), https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders041018/; see also Ayesha Rascoe & Susan Davis, White House: Mueller Is Overreaching and Trump Has the Power to Fire Him, NPR (Apr. 10, 2018, 5:19 PM), https://www.npr.org/2018/04/10/601213958/white-house-mueller-is-overreaching-and-trump-hasthe-power-to-fire-him. 1 2 3 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org usually, most legal experts believe that he would have to order Deputy Attorney General Rod Rosenstein to fire Mueller, and Rosenstein could, of course, refuse. SANDERS: I know a number of individuals in the legal community, and including at the Department of Justice, [believe] that he has the power to do so. But I don’t have any further announcements on — Q: They’ve consistently said that it is. They’ve told me; I’ve asked. They’ve said it’s Rod Rosenstein oversees the Special Counsel, and only he has the power to fire the Special Counsel. SANDERS: Again, we’ve been advised that the president certainly has the power to make that decision. I can’t go anything beyond that. 4 American Oversight seeks records to shed light on what final legal analysis the White House is relying. Requested Records American Oversight requests that DOJ produce the following within twenty business days: All records reflecting any final legal advice—including, but not limited to, opinions, memoranda, file memos, talking points, emails, or other informal communications— regarding the president’s authority to remove the Special Counsel. Please provide all responsive records from January 20, 2017, to the date the search is conducted. Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records are exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed 5 6 7 See Press Briefing by Press Secretary Sarah Sanders, supra note 3. FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). 4 5 6 7 2 DOJ-18-0255 justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” 8 In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. 9 You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, DOJ is on notice that litigation is reasonably foreseeable. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis. Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.10(k), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. 10 11 American Oversight requests a waiver of fees because disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of government operations and activities. The Special Counsel investigation is one of the highestprofile current activities of the federal government. Who has the authority to remove the Robert Mueller from the position of Special Counsel and what it would mean if the president were the 12 Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 28 C.F.R. § 16.10(k)(1). Id. 28 C.F.R. § 16.10(k)(1), (2)(i)–(ii). 8 9 10 11 12 3 DOJ-18-0255 13 one who attempted to do so are of significant public interest. The requested records will help American Oversight and the general public understand whether and to what extent the White House Press Secretary was revealing final legal advice received by the Office of Legal Counsel. American Oversight is committed to transparency and makes the responses agencies provide in response to FOIA requests publicly available. The subject of this request is a matter of public interest, and American Oversight would make these records publicly available. 14 This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. As another example, American Oversight has a project called “Audit the Wall,” where the 15 16 17 See Mike DeBonis, Capitol Hill Throws Up Red Flags as Trump Moves on Sessions and Possibly Mueller, WASH. POST, July 25, 2017, https://www.washingtonpost.com/powerpost/capitolhill-throws-up-red-flags-as-trump-moves-on-sessions-and-possibly-mueller/2017/07/25/e1e3e05e715a-11e7-9eac-d56bd5568db8_story.html?utm_term=.96abc4050ddd; Maggie Haberman & Michael S. Schmidt, Trump Sought to Fire Mueller in December, N.Y. TIMES, Apr. 10, 2018, https://www.nytimes.com/2018/04/10/us/politics/trump-sought-to-fire-mueller-in-december.html; Rascoe & Davis, supra note 3; Darren Samuelsohn, Trump Keeps Playing Nice with Mueller, for Now, POLITICO, (Dec. 2, 2017, 6:45 AM), https://www.politico.com/story/2017/12/02/trumpmueller-probe-strategy-275982; Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, N.Y. TIMES, Jan 25, 2018, https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counselrussia.html; Paul Waldman, What if Trump Fires Mueller?, THE WEEK, Oct. 31, 2017, http://theweek.com/articles/734087/what-trump-fires-mueller. 28 C.F.R. § 16.10(k)(iii)(A)–(B). American Oversight currently has approximately 11,900 page likes on Facebook, and 41,700 followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/ (last visited Apr. 11, 2018); American Oversight (@weareoversight), TWITTER, https://twitter.com/weareoversight (last visited Apr. 11, 2018). DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance. Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents. 13 14 15 16 17 4 DOJ-18-0255 organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.Mexico border. 18 Accordingly, American Oversight qualifies for a fee waiver. Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with DOJ on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Cerissa Cafasso at foia@americanoversight.org or 202.869.5244. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight Audit the Wall, AMERICAN OVERSIGHT, https://www.americanoversight.org/investigation/auditthe-wall. 18 5 DOJ-18-0255