Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF STATE ) 2201 C Street, NW ) Washington, DC 20520 ) ) Defendant. ) ) ______________________________________ ) BENJAMIN WITTES 1775 Massachusetts Avenue NW Washington, DC 20036 Civil Action No. 18-1073 COMPLAINT 1. On January 11, 2017, President-elect Donald Trump held a press conference to address how he planned to handle potential conflicts of interest during his presidency. Although the President-elect said that he would not divest from his businesses entirely, he said that he would resign from the Trump Organization (“Organization”) and place his stake in a trust. 2. Since his inauguration, however, President Trump has showed no signs of keeping himself at arm’s length from the Organization. According to reports, he has remained involved with the company, and is informed enough about its finances to express unease about the impact of his presidency on its future. Watchdog groups have sounded the alarm about the conflicts of interest that could arise from this arrangement. 3. One particularly concerning conflict is the use of the Trump International Hotel (“Hotel”) in Washington, D.C. The Hotel has been used for events hosted by the Republican Party, lobbying groups, and the U.S. Government itself. It has also become common for foreign 1 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 2 of 8 dignitaries to stay at the Hotel when visiting Washington. The Organization has resisted calls to disclose how much money it has received from foreign sources during the Administration; in fact, it would not even make public the reimbursement it gave to the U.S. Treasury meant to cover all foreign profits. 4. The Department of State (“Department” or “State Department”) regularly arranges and pays for accommodations for visiting officials. The American public has no idea how much money the Department has given to the Organization to accommodate diplomats, heads of states, and other foreign visitors to Washington. 5. On January 19, 2018, Plaintiff Benjamin Wittes submitted a request to the Department under the Freedom of Information Act (“FOIA”) to obtain information related to reimbursements and direct payments that the Department had made for foreign officials and diplomats who had stayed at the Hotel. The public has an important interest in knowing whether the Department of State has been furthering the President’s business interests, and undermining crucial democratic norms, by steering U.S. Government funds to the Hotel. Indeed, payment of U.S. Government funds to Trump Hotel would represent an alarming new reality: the President’s monetization of the machinery of the federal government. 6. The Department failed to respond to the Plaintiff’s request within the statutory deadline. Plaintiff brings this action against Defendant to compel compliance with FOIA, 5 U.S.C. § 552. JURISDICTION AND VENUE 7. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. 8. Venue is proper in this district pursuant to § 552(a)(4)(B). 2 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 3 of 8 PARTIES 9. Plaintiff Benjamin Wittes is the editor-in-chief of Lawfare, an online publication published by The Lawfare Institute, a 501(c)(3) not-for-profit educational organization in cooperation with The Brookings Institution, a 501(c)(3) nonprofit public policy organization. Lawfare is dedicated to informing public understanding on operations and activities of the government. Plaintiff intends to give the public access to documents he obtains via this FOIA request on Lawfare’s website (www.lawfareblog.com) and to provide information about and analysis of those documents as appropriate. 10. Defendant State Department is an agency of the federal government of the United States and is headquartered at 2201 C Street, NW, Washington, DC 20520. Defendant has possession, custody, and control of the documents that Plaintiff seeks in response to its FOIA request. STATEMENT OF FACTS 11. On January 11, 2017, President-elect Trump held a press conference promising to insulate himself from his sprawling business empire. At that press conference, President-elect Trump seemed reluctant to cut himself off from the Trump Organization. “I could actually run my business and run government at the same time,” he said. “I don’t like the way that looks but I’d be able to do that if I wanted to.” 12. President Trump has failed to separate himself from his businesses since his inauguration in January 2017. He has maintained a particular interest in the performance of the Trump International Hotel in Washington, DC. See Betsy Woodruff, “Trump Inc. Had a Rough Year, but His D.C. Hotel is Killing It,” The Daily Beast (Dec. 28, 2017), available at https://www.thedailybeast.com/trump-inc-had-a-rough-year-but-his-dc-hotel-is-killing-it. 3 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 4 of 8 13. Foreign dignitaries and officials often stay at the Hotel when visiting Washington. 14. Amid reports that foreign officials have paid for services at the Hotel, state attorneys general filed litigation alleging that payments to the Hotel by foreign governments would violate the Emoluments Clause of the Constitution. See Katelyn Polantz, “Judge Allows Lawsuit Alleging Trump Took Illegal Foreign Gifts,” CNN (Mar. 28, 2018), available at https://www.cnn.com/2018/03/28/politics/emoluments-lawsuit-trump-hotel/index.html. 15. The Trump Organization has refused to disclose how much money it has received in hotel profits from foreign governments and has not publicized the details of a payment made to the U.S. Treasury that was supposed to compensate for hotel profits generated by foreign governments. See Peter Overby, “Trump Pays Treasury Undisclosed Sum for Hotel Profits From Foreign Governments,” NPR (Feb. 26, 2018), available at https://www.npr.org/2018/02/26/588984309/trump-pays-treasury-undisclosed-sum-for-hotelprofits-from-foreign-governments. 16. One detail that was not disclosed about the payment made to the U.S. Treasury was whether the Organization reimbursed the U.S. Government not just for payments that were made directly by foreign officials who were staying at the Hotel or affiliated properties, but also for payments that were made to the Hotel by the State Department on behalf of foreign officials. 17. The Department routinely pays for or reimburses accommodations for foreign diplomats, dignitaries, or other official visitors. 18. Even if the Trump Organization is not receiving payments directly from foreign governments, the use of State Department funds to facilitate diplomatic presence at the Hotel contributes to a problem about which ethics experts have warned since President Trump took office: that “the hotel’s political appeal has turned it into one giant lily pad where tourists, 4 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 5 of 8 lobbyists and foreign leaders can schmooze and win favor with Trump loyalists.” Katie Rogers, “Trump Hotel at Night: Lobbyists, Cabinet Members, $60 Steaks,” New York Times (Aug. 25, 2017), available at https://www.nytimes.com/2017/08/25/us/politics/trump-hotelwashington.html. 19. Public interest in President Trump’s relationship with his business interests has remained high throughout his presidency, as nonpartisan reports denounce the events that continue to be held at the Hotel by foreign governments. Julia Ainsley and Rich Gardella, “Watchdog: Foreign Regimes, Others Spend Big at Trump Properties to ‘Curry Favor,’” NBC News (Jan. 16, 2018), available at https://www.nbcnews.com/politics/donald-trump/watchdogforeign-regimes-others-spend-big-trump-properties-curry-favor-n837851. 20. The prospect of U.S. Government funds being steered to Trump Hotel in connection with foreign visitors raises concerns that go beyond ordinary conflicts of interest. The President’s authority over the executive branch confers tremendous power, which is ordinarily constrained by well-established norms as well as legal limitations. Enlisting executive agencies to funnel U.S. Government funds to benefit the President would pose a fundamental challenge to our democracy by collapsing the separation between the President’s personal interests and the vast machinery of the executive branch. This risk extends beyond the baseline potential for corruption inherent in foreign leaders or representatives perceiving an advantage in driving revenue to the President’s business. It would also amount to the monetization of the executive branch by the President of the United States. FOIA Request to State Department and Agency’s Failure to Respond 21. On January 19, 2018, Plaintiff sent a FOIA request to Defendant State Department. 5 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 6 of 8 22. In the request, Plaintiff requested records from the State Department regarding: 1. All records relating to the reimbursement . . . of foreign officials and diplomats, for stays at the Trump International Hotel in Washington, D.C., from January 20, 2017, until the date that a search is conducted, for records responsive to this FOIA request. This request includes, but is not limited to, communications, receipts, invoices, itineraries, and billing statements. 
 2. All records relating to directly booking accommodations . . . at the Trump International Hotel in Washington, D.C. on behalf of foreign officials and diplomats, from January 20, 2017, until the date that a search is conducted for records responsive to this FOIA request. This request includes, but is not limited to, communications, receipts, invoices, itineraries, and billing statements. 
 3. All records relating to . . . reimbursement of, or payment for, hotel accommodations for foreign officials and diplomats visiting Washington, D.C. This request is for policies effective from January 20, 2017, until the date that a search is conducted for records responsive to this FOIA request. This request includes, but is not limited to, policies regarding the selection of hotel, the cost of accommodations, and procedures relating to the reimbursement or payment on behalf of foreign officials or diplomats. 
 4. All records relating to . . . budgeting and accounting of reimbursement of, or payment for, hotel accommodations for foreign officials and diplomats visiting Washington, D.C., from January 20, 2017, until the date that a search is conducted for records responsive to this FOIA request. 
 See Exhibit A (FOIA request). 23. Plaintiff also requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or 5 U.S.C. § 552(a)(4)(A)(ii)(II). Id. 24. Colleagues of the Plaintiff received an email from Defendant State Department dated February 12, 2018, confirming that it would now “proceed with handling” the FOIA request. See Exhibit B (State Department email). 25. The email followed a brief exchange during which Plaintiff, through colleagues, agreed to “streamline” the language of his initial request so as to make it easier for the Department to process it. Id. 6 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 7 of 8 26. Pursuant to FOIA, within 20 business days of receipt of Plaintiff’s request, Defendant was required to “determine . . . whether to comply with such request” and to “immediately notify” Plaintiff of “such determination and the reasons therefor,” and, in the case of an adverse determination, notify the Plaintiff of his appeal rights. 5 U.S.C. § 552(a)(6)(A)(i). 27. To date, Defendant has failed to make the required determination and notifications. Nor has Defendant made a determination regarding Plaintiff’s request for a fee waiver. COUNT I
 (Violation of FOIA, 5 U.S.C. § 552) 28. Plaintiff re-alleges and incorporates by reference all preceding paragraphs. 29. Defendant is in violation of FOIA by failing to respond to Plaintiff’s request 
 within the statutorily prescribed time limit and by unlawfully withholding records responsive to Plaintiff’s request. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court: (1) Order Defendant, by a date certain, to conduct a search that is reasonably likely to lead to the discovery of any and all records responsive to Plaintiff’s request; (2) Order Defendant, by a date certain, to demonstrate that it has conducted an adequate search;
 (3) Order Defendant, by a date certain, to produce to Plaintiff any and all non-exempt records, or portions of records, responsive to Plaintiff’s request, as well as a Vaughn index of any records, or portions of records, withheld due to a claim of exemption; (4) Enjoin Defendant from improperly withholding records responsive to Plaintiff’s request; 7 Case 1:18-cv-01073 Document 1 Filed 05/07/18 Page 8 of 8 (5) Order Defendant to grant Plaintiff’s request for a fee waiver; (6) Grant Plaintiff an award of attorney fees and other reasonable litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E); and (7) Grant Plaintiff such other relief as the Court deems appropriate. Respectfully submitted, Date: May 7, 2018 /s/ Laurence M. Schwartztol LAURENCE M. SCHWARTZTOL (pro hac vice to be filed) Larry.Schwartztol@protectdemocracy.org JUSTIN FLORENCE (Bar No. 988953) Justin.Florence@protectdemocracy.org The Protect Democracy Project, Inc. 10 Ware Street Cambridge, MA 02138 Phone: 202-599-0466 Fax: 929-777-8428 Allison F. Murphy (Bar No. 975494) The Protect Democracy Project, Inc. 2020 Pennsylvania Ave., NW #163 Washington, DC 20006 Phone: 202-599-0466 Fax: 929-777-8428 Counsel for Plaintiff 8