November 8, 2018 Marguerite Driessen, Legal Advisor Professional Responsibility Advisory Office U.S. Department of Justice 425 New York Avenue, N.W., Suite 12000 Washington, D.C. 20530 (202) 514-0458 PRAO.FOIA@usdoj.gov Re: Freedom of Information Act Request for the Professional Responsibility Advisory Office Dear Ms. Driessen: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, we hereby request that your office produce the following records within 20 business days: 1. Any requests that the Professional Responsibility Advisory Office (PRAO) has received for advice, authorizations, determinations, guidance, or written opinions relating to ethical or legal issues arising from Matthew Whitaker’s possible involvement in, or supervision of, the investigation into Russian interference with the 2016 presidential election and related matters being conducted by Special Counsel Robert Mueller (hereinafter the “Mueller investigation”).1 2. Any advice, guidance, or written opinions that PRAO has provided regarding ethical or legal issues arising from Matthew Whitaker’s possible involvement in, or supervision of, the Mueller investigation, including issues relating to impartiality in performing official duties pursuant to 5 C.F.R. § 2635.501-503 and disqualification arising from personal or political relationships pursuant to 28 C.F.R. § 45.2. 3. Any authorizations or determinations made in relation to Matthew Whitaker’s potential involvement in, or supervision of, the Mueller investigation, including but not limited to those made pursuant to 5 C.F.R. § 2635.502(a) and 28 C.F.R. § 45.2(b). This request is for any documents dating from May 17, 2017 until the time that your response to this request is completed. For the purposes of this request, any references to PRAO are intended to encompass all individual personnel within that office during this time period. We also request any records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If your agency uses FOIA questionnaires or This investigation is authorized by Order No. 3915-2017 from the Office of the Deputy Attorney General, which is dated May 17, 2017 and available online at https://www.justice.gov/opa/press-release/file/967231/download​. 1 1 certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request. If you make a determination that any responsive record, or any segment within a record, is exempt from disclosure, we ask that you provide an index of those records at the time you transmit all other responsive records. In the index, please include a description of the record and the reason for exclusion with respect to each individual exempt record or exempt portion of a record, as provided by ​Vaughn v. Rosen,​ 484 F.2d 820 (D.C. Cir. 1973), ​cert. denied​, 415 U.S. 977 (1974). When you deem a portion of a record exempt, we ask that the remainder of the record to be provided, as required by 5 U.S.C. §§ 552(a)(8)(A)(ii) & 552(b). FEE WAIVER FOIA provides that any fees associated with a request are waived if “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). We are the Editor-in-Chief and Senior Editor for ​Lawfare​, an online publication dedicated to informing public understanding on operations and activities of the government. ​Lawfare i​ s published by The Lawfare Institute, a 501(c)(3) not-for-profit educational organization, and in cooperation with The Brookings Institution, a 501(c)(3) nonprofit public policy organization. ​Lawfare ​does not have commercial interests. This request is submitted in connection with ​Lawfare’​ s mission to publish information that is likely to contribute significantly to the public understanding of executive branch activities relating to law and national security. Matthew G. Whitaker’s recent appointment as Acting Attorney General and his apparent decision to resume supervision of the Mueller investigation raises serious potential ethical and legal concerns that relate directly to the operations and activities of several senior government officials. In addition to satisfying the requirements for a waiver of fees associated with the search and processing of records, we are entitled to a waiver of all fees except “reasonable standard charges for document duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(II). Federal law mandates that fees be limited to document duplication costs for any requester that qualifies as “a representative of the news media.” ​Id.​ ​Lawfare​ is a “news media organization[]” that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” ​Nat’l Sec. Archive v. Dep’t of Defense​, 880 F.2d 1381, 1387 (D.C. Cir. 1989). We intend to give the public access to documents transmitted via FOIA on our website, https://www.lawfareblog.com, and to provide information about and analysis of those documents as appropriate. EXPEDITED PROCESSING 2 FOIA requires provides for expedited processing where a requestor “demonstrates a compelling need.” 5 U.S.C. § 552(a)(6)(E)(i). It defines “compelling need” to include situations where a “request [is] made by a person primarily engaged in disseminating information” and there exists an “urgency to inform the public concerning actual or alleged Federal Government activity.” ​Id. ​§ 552(a)(6)(E)(v). Relevant Justice Department regulations further define “compelling need” to also include requests relating to “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.” 28 C.F.R. § 16.5(e)(iv). Lawfare i​ s an organization primarily engaged in the dissemination of information. This request addresses whether Acting Attorney General Whitaker has sought or received guidance from relevant Justice Department officials regarding possible conflicts of interest and other ethical and legal concerns arising from his supervision of the Mueller investigation. As this supervision is ongoing, there is an urgent need to inform the public regarding whether Justice Department officials have properly addressed relevant ethical and legal concerns. Further, Whitaker’s supervision of the Mueller investigation is a topic of widespread and exceptional media interest that directly relates to questions of governmental integrity. Any response could substantially affect public confidence in the government’s investigation of possible Russian interference in the 2016 presidential election and related matters. * * * Given the 20-day statutory deadline, we hope to be as helpful as possible in clarifying or answering questions about our request. Please contact us by phone or email if you require any additional information. We appreciate your cooperation and look forward to hearing from you very soon. Sincerely, /s/ Benjamin Wittes Benjamin Wittes Editor in Chief, ​Lawfare Senior Fellow in Governance Studies, The Brookings Institution P.O. Box 33226 Washington D.C. 20033-3226 (202) 797- 4368 benjamin.wittes@gmail.com s/ Scott R. Anderson Scott R. Anderson Senior Editor, ​Lawfare Fellow in Governance Studies, The Brookings Institution 3 PO. BOX 33226 Washington DC. 20033-3226 (202) 797- 6090 scott.anderson@lawfareblog.com