U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530
May 1, 2018
Charlie Savage
The New York Times
savage@nytimes.com

Re:

FOIA No. FYl 7-070; N.Y. Times, et al. v. DOJ, No. 17 Civ. 1946 (S.D.N.Y.)

Dear Mr. Savage:
This letter partially responds to your January 28, 2017 Freedom of Information Act
("FOIA") request to the Office of Legal Counsel ("OLC"), seeking "all e-mails, memos, and
other documents related to[:] 1. Office of Legal Counsel review of proposed Trump
administration executive orders for form and legality, including during the transition period[;]
and 2. Office of Legal Counsel review of other proposed Trump White House matters, including
during the transition period," through January 28, 2017. As you know, the request is also the
subject of the above-captioned litigation, and the request has been narrowed in certain ways
pursuant to agreement through counsel, and you were provided with a chart of responsive
records on March 12, 2018.
On April 23, 2018, you were providec,i with a response regarding 1,115 pages of
responsive records, limited at the request of your counsel to those records identified in the chart
as relating to the "3110 opinion," and you were informed that a small number of responsive
records remained pending consultation with other entities. That consultation has been
completed, and we have enclosed the remaining 11 pages, with material redacted as exempt from
disclosure pursuant to FOIA Exemption Five, 5 U.S.C. § 552(b)(5), and pursuant to FOIA
Exemption Six, 5 U.S.C. § 552(b)(6). For your information, Exemption Five exempts material
protected by the attorney-client, deliberative process, and presidential communications ·
privileges, as well as the attorney work product doctrine and other privileges. Exemption Six
exempts material the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy. We have determined that none of the withheld material is appropriate for
·discretionary release.
For your information, Congress excluded three discrete categories oflaw enforcement
and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). This
response is limited to those records that are subject to the requirements of the FOIA. This is a
stan.dard notification that is given to all our requesters and should not be taken as an indication
that excluded records do, or do not, exist.
Your counsel may contact Assistant U.S. Attorney Rebecca Tinio, at 212-637-2774, for
any further assistance and to discuss any aspect of your request. Additionally, you may contact
the Office of Government Information Services ("OGIS") at the National Archives and Records

 Administration to inquire about the FOIA mediation services they offer. The contact information
for OGIS is as follows: Office of Government Information Services, National Archives and
Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001,
e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at
202-741-5769.
Although your request is the subject of ongoing litigation, and administrative appeals are
not ordinarily acted upon in such situations, I am required by statute and regulation to inform
you of your right to file an administrative appeal. You may administratively appeal by writing to
the Director, Office of Information Policy ("OIP"), United States Department of Justice, Suite
11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an
appeal through OIP's FOIAonline portal by creating an account on the following web site:
https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must be postmarked or
electronically transmitted within 90 days of the date of my response to your request. If you
submit your appeal by mail, both the letter and the envelope should be clearly marked "Freedom
oflnformation Act Appeal."
Sincerely,

/m//~
Paul P. Colborn
Special Counsel
Enclosures

cc:

Rebecca S. Tinio
Assistant United States Attorney
Southern District of New York
Benjamin H. Torrance
Assistant United States Attorney
Southern District of New York

2

 Stern, Mark (CIV)
From:

Stern, Mark {CIV)

Sent:

Thursday, January 12, 2017 12:31 PM

To:

Koffsky, Daniel L {O LC}
(b)(5)

Subject:

Attachments:

Document ID: 0.7.13767.37779

.-Mark
(b) (5)

.pdf

__
:fo
_L_c)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
(b) (6)

From:

(OLC)

Sent:

Friday, January 20, 2017 8:55 PM

To:

Gannon, Curtis E. (OLC);

Cc:

Koffsky, Daniel L (OLC)

Subject:

RE: Attached Image

Attachments:

2017-01-20 - OAAG Koffsky-Appl of anti-nep stat to WHO (book}.rtf; 2017-0120 - DAAG Koffsky - Appl of anti-nep stat to WHO (book).pdf

(b) (6)

? (OLC)

Got it [the extra space], thanks. Corrected versions attached.

-tQ>Ul
(b) (6)
Offic e o f Lega l Counse l
I

I

From: Gannon, Curtis E. (Ole}
Sent: Friday, January 20, 2017 8:50 PM
(b) (6)
To:
: (Ole) o
(b) (6 )
Cc: Koffsky, Daniel L {Ole} o
Subject: RE: Attached Image

(b) (6)

On page 1, four lines under heading I, there is an extra space in ? 3

: (Ole} ,

(b )(6 )

U.s.c.-

Otherwise, looks good to me.

(b) (6)
From:
I(OLC)
Sent: Friday, January 20, 2017 8:47 PM
To:
: (OLC)
Cc: Gannon, Curtis E. (OLC)
Subject: RE: Attached Image

>; Koffsky, Daniel L (Ole) ,

(b) (6)

Yes, that's the way they an are. First line flush left, subsequent lines hanging indent of .25 inches.

\Vhy, you ask? Tradition. Since Volume 4A at least. Before that, we didn't have headnotes; instead, we had the
clunl-y titles with the headnote-like concepts separated by em dashes.

- [t:JIGJ]
(b) (6)
Offic e o f Lega l Counse l

I

From:

(b) (6)

C:.Onto i:~irl<J\I ' "'"' l <:>r\l

Document ID: 0.7.13767.5718

(Ole)

,n

?017 Ro,l1 OM

To:IIIIIIIDJl:mlll (OLC} o
Cc: Gannon, Curtis E. {Ole) o
Subject: Re: Attached Image

(b) (6)
(b)(6)

>; Koffsky, Daniel L (OLC} o

(b)(6)

Sorry, I meant the headnote. I'm on my phone, but it looks like the first line goes to the left margin and the
subsequent lines are indented?

Sent from my iPhone
On Jan 20, 2017, at 8:38 PM, IIIIIIIDJl:mlll {OLC) o

(b)(6)

wrote:

The volume header or the short title header? They look right to me. They're both centered in the
RTF document.

- [Q>Jm]?
(b) (6)
Office of Legal Counsel

,I

From:
(b) (6)
(OLC}
Sent: Friday, January 20, 20178:33 PM
To :
(OLC} ?
(b)(6)
cc: Gannon, Curtis E. (OLC} o
(b)(6)
?
(b)(6)
Subject: Re: Attached Image

>; Koffsky, Daniell (OLC}

Doe s the first line of the header look like it's too far to the left, or is that standard? Otherwise
looks good to me.

Sent from my iPhone
On Jan 20, 2017, at 8:27 PM,IIIIIIIDJl:mlll (OLC} o

:>wrote:

(b) (6)
(b) (5)

Here are clean versions \Vith

I,

arwming

header with a short title, and the volume number corrected to 41. When you all clear,
I'll send the PDF to Peter and then post it.

_ [(DIG)]
(b) (6)
Office of Legal Coun,;e l

fro m:
(b) (6)
(OLC)
Sent: Friday, January 20, 2017 8:16 PM
To: Gannon, Curtis E. {OLC} o
(b) (6)
(b)(6)
Cc:IIIIIIIDJl:mlll (OLC} o
?
(b)(6)
Subject: Re: Attached Image
(b) ( 5)

Document ID: 0.7.13767.5718

>
Koffsky, Daniel L ( OLC}

'. Would defer to Dan andtmll

(b) (5)

Sent from my iPhone
On Jan 20, 2017, at 7:53 PM, Gannon, Curtis E. (OLC) o
wrote:

(b)(6)

(b)(5)

I agree.

is fine.

From :~
(Ole)
Sent: Friday, January 20, 2017 7:44 PM
(b)(6)
To: Koffsky, Daniell (Ole) o
(b)(6)
E. (Ole) o
>
(b)(6)
Cc:~
(Ole} o
Subject: RE: Attached Image

Gannon, Curtis

Here it is ,-vid1 that look.

- QJm1
(b) (6)
Office of Lega l Counse l

I

From : Koffsky, Daniel L{OLC}
Sent: Friday, January 20, 2017 7:42 PM
To: Gannon, Curtis E. (Ole} o
(b) (6)
(b)(6)
Cc:~
{OLC} o
(b) (6)
{OLC) o

Subject: Re: Attached Image
I hadn't thought ofUlll 's point that

(b) (5)

Sent from my iPhone
On Jan 20, 2017, at 7:36 PM, Gannon, Curtis E. (OLC)
o
(b) (6)
>wrote:

It looks like we still need a short title for the running head .
Would
(b) (5)
be appropriate?
Also.

Document ID: 0.7.13767.5718

(b) (5)

>

Finally, once w e're done with the document , does ll;JimJ
recollect some specific examples of opinions t hat
have been publicized upon signing?

orlll

(b) (6)
From:
: (OLC}
Sent: Friday, January 20, 2017 7:24 PM
(b) (6)
To:
: {OLC} o
(b) (6)
Gannon, Curtis E. {OLC} o
(b)(6)
Cc: Koffsky, Daniel L{Ole} o
Subject: RE: Attached Image

>

(b) (5)

--

(b) (6)
From:
: (OLC)
Sent: Friday, January 20, 2017 7:19 PM
(b) (6)
To: Gannon, Curtis E. (OLC) o
(b) (6)
(b)(6)
: (OLC) o
(b)(6)
Cc: Koffsky, Daniel L (OLC) o
Subject: RE: Attached Image

.>?,

(b) (5)

-

- Ob\iously I

will defer to y our judgment on this one.

(b) (6)
Office of Lesa I ~u~el

I

(b) (6)
From:
i (OLC)
Sent: Friday, January 20, 2017 5:52 PM
(b) (6)
To: Gannon, Curtis E. (OLC) o
(b) (6)
(b)(6)
: (OLC) o
(b)(6)
Cc: Koffsky, Daniel L ( OLC) o

Document ID: 0.7.13767.5718

>?,

Subject: RE: Attached Image

No, but I"d like a copy of the signed PDF for publication
records.
Here it is in publication form ,vith a few more edits based
on style conventions et al Do you want me to send it to
Peter as well as a heads-up, or do you want to contact him
separately when we are ready to put it online.

--

(b) (6)

From: Gannon, Curtis E. (OLC}
Sent: Friday, January 20, 2017 6:47 PM
(b)(6)
To:IIIIIIIG>Dmlll ( OLC} ,
,
(b)(6)
IIIIIIIG>Dmlll {OLC)
>
Cc: Koffsky, Daniel L(OLC} o
(b)(6)
Subject: RE: Attached Image
Thanks, -

>?,

? I've traded emails with Dan.

I'm attaching a Word version that reflects those changes.
take it you don't need the PDF for purposes of the website?

From: IIIIIIIG>Dmlll ( OLC)
Sent: Friday, January 20, 2017 5:39 PM
(b)(6)
To: Gannon, Curtis E. (OLC} ,
,
(b)(6)
IIIIIIIG>Dmlll {OLC)
(b)(6)
Cc: Koffsky, Daniel L (OLC} ,
Subject: RE: Attached Image

>?I

I won' t publish anything 1,vithout first circulating the
publishable document to everybo<ly, including Peter, so he
gets the heads-up he asked for.
I thinkl

(b) (5)

Application of the Aoti-N epotism Statute to a
Presidential Appointment in the White House
Office

Document ID: 0.7.13767.5718

-

(b) (5)

Jan=y 20, 2017
MEMORANDUM OPINlON FOR THE CoUNSEL TO THE

PRESIDENT

(b )(5)

..
Office o f Leia I Coun;el

I

o ,

From: Gannon, Curtis E. (Ole}
Sent: Friday, January 20, 2017 5:31 PM
To: IIIIIIIIDDJalll (Ole} o
(b )(6)
(b)(6)
CC: Koffsky, Daniel L(OlC} o
(b) (6)
(Ole} o
(b)(6)
Subject: RE: Attached Image

>

I just spoke with Peter_ Apart from the actual link once it is
published. he asked
(b) (5)

As for the headnote,

(b )(5)

? Here's a slight tweak of

(b )(5)

Document ID: 0.7.13767.5718

(b) (5)

? let's not post until fo lks have had a chance to react to
(b) (5)
that and make suggestions abou
. I assume from Dan's earlier email that he'll be
able to w eigh in soon.

From: Carr, Peter (OPA}

Sent: Friday, January 20, 2017 5:10 PM
(b)(6)
To:
0 LC} o
Cc: Gannon, Curtis E. (OLC} o
(b)(6)
Koffsky, Daniel L (OLC} o
(b)(6)
(b) (6)
(Ole) o
(b)(6)
Subject: Re: Attached Image

llllllli:>Dmlll {

>?

'

>

can someone call me before we publish?

Thx,

On Jan 20, 2017, at 5:01
o
(b)(6)

PM,llllllli:>Dmlll (Ole)
wrote:

How about:
(b)(5)

From: Gannon, Curtis E. (OLC)
Sent: Friday, January 20, 2017 5:00 PM
To: Koffsky, Daniel L ( Ole}
o
(b)(6)
Cc:
{Ole}
(b) (6)
o
(b) (6)
>;[QJll!)l
o
(b)(6)
(Ole}
carr, Peter (OPA) o
(b)(6)
Subject: Re: Attached Image
Yes. I could review.

Document ID: 0.7.1 3767.5718

>

On Jan 20, 2017, at 4:55 PM, Koffsky, Daniel
(b)(6)
l (OLC) o
wrote:

IG)U: Could you write
one? I have to leave my
current location. Curtis, would
you be able to review it? I
won't have access to emails
for about 20 minutes. Thanks.
--Dan

From:IIIIIIIIDIC:>ml (OLC)
Sent: Friday, January 20, 2017
4:53 PM

To: Koffsky, Daniell (OLC)
o
(b)(6)
Gannon, Curtis E. {OLC)
o
(b)(6 )
>
Cc:IIIIIIIIDIC:>ml (OLC)
o
(b) (6)
Carr,
Peter (OPA}
o
(b) (6)
?>
Subject: RE: Attached Image
Yes, ,vill do stat.
Wbile rm formatting it, can you

formulate a beadnote(s)?

-[ij)DJ]
(b) (6)
Cffice of legal Counse l

I

From: Koffsky, Daniel L ( Ole)
Sent: Friday, January 20, 2017
4:50PM
To: Gannon, Curtis E. (Ole}
o
(b)(6)
>?,
(Ole)
(b) (6)
o
(b)(6)
Cc:IIIIIIIIDIC:>ml {Ole)
o
(b)(6)
Carr,
Peter (OPA}

. _>

Subject: FW: Attached Image
I'm attaching the PDF and
Word versions of an opinion I
just signed.

o

Document ID: 0.7.13767.5718

, would it be possible to

put this opinion on our

website today?
Thanks.
--Dan

<2017-01-20 - DAAG Koffsky - Appl of anti-nep stat to WHO (book).rtf>
<2017-01-20 - DAAG Koffsky - Appl of anti -nep stat to WHO (book).pdf>

Document ID: 0.7.13767.5718

Gannon, Curtis E. (OLC)
From:

Gannon, Curtis E. (OLC)

Sent:

Friday, January 20, 2017 11 :14 PM

To:

Hankey, Mary Blanche (OAG)

Subject:

FYI: OLC Opinion

Attachments:

2017-01-20-anti-nepo-stat-who.pdf

Mary Blanche,
FYI: OlC responded this evening to an opinion request from the White House Counsel about whether the

anti-nepot ism statute applies to the appointment of Jared Kushner to a position in the White House Office.
The opinion, attached in PDF and placed on our website this evening
(https://www.justice.gov/sites/default/files/olc/opinions/attachments/2017/01/20/20 17-0 1-20-anti-nepo-statwho O.pdf), concludes that the statute does not prohibit the appointment.
(b) (5)

Please let me know if you'd like to discuss.
Thanks,
Curtis

Document ID: 0.7.13767.37331