Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR PUBLIC INTEGRITY,
Plaintiff,
v.
U.S. DEPARTMENT OF DEFENSE et al.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 19-3265 (CKK)

MEMORANDUM OF AMICI CURIAE AMERICAN OVERSIGHT AND DEMOCRACY
FORWARD FOUNDATION IN SUPPORT OF PLAINTIFF CENTER FOR PUBLIC
INTEGRITY’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 2 of 33

DISCLOSURE STATEMENT
Pursuant to Local Civil Rule 7(o)(5) of this Court and Rules 26.1 and 29(a)(4)(A) of the
Federal Rules of Appellate Procedure, amici curiae state the following:
American Oversight does not have a parent company, subsidiaries, or affiliates, and no
publicly held corporation owns 10 percent or more of its stock. American Oversight is a nonprofit corporation organized under section 501(c)(3) of the Internal Revenue Code.
Democracy Forward Foundation does not have a parent company, subsidiaries, or
affiliates, and no publicly held corporation owns 10 percent or more of its stock. Democracy
Forward Foundation is a non-profit corporation organized under section 501(c)(3) of the Internal
Revenue Code.

i

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 3 of 33

TABLE OF CONTENTS
STATEMENT OF INTEREST ....................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I. The Presidential Communications Privilege Is Narrow and Reaches Purely Intraor Inter-Agency Records Only in Limited Circumstances. .......................................... 5
II. Directives, Agency Actions, and the Reasons for Them Are Not Privileged. ............ 10
III. Information Concerning Government Misconduct Does Not Fall Within the Scope
of the Deliberative Process Privilege. ......................................................................... 15
IV. The Presidential Communications Privilege Should Not Reach Communications
Concerning Government Misconduct, Particularly Where the President
Participated in or Directed That Misconduct. ............................................................. 21
V. Atypical Privilege Claims Over Small Numbers of Documents Warrant In Camera
Review. ....................................................................................................................... 23
CONCLUSION ............................................................................................................................. 25

ii

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 4 of 33

TABLE OF AUTHORITIES
CASES
Alexander v. FBI,
186 F.R.D. 154 (D.D.C. 1999).................................................................................................. 17
Brinton v. Dep’t of State,
636 F.2d 600 (D.C. Cir. 1980) .................................................................................................. 11
*Carter v. U.S. Dep’t of Commerce,
830 F.2d 388 (D.C. Cir. 1987) ............................................................................................ 23, 24
*Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec.,
514 F. Supp. 2d 36 (D.D.C. 2007) ...................................................................................... 6, 7, 9
*Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec.,
592 F. Supp. 2d 111 (D.D.C. 2009) ........................................................................................ 7, 9
Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854 (D.C. Cir. 1980) .................................................................................................. 11
*Ctr. for Effective Gov’t v. U.S. Dep’t of State,
7 F. Supp. 3d 16 (D.D.C. 2013) ......................................................................................... passim
Elec. Frontier Found. v. U.S. Dep’t of Justice,
739 F.3d 1 (D.C. Cir. 2014) ...................................................................................................... 16
Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency,
87 F. Supp. 3d 223 (D.D.C. 2015) ............................................................................................ 13
Envtl. Prot. Agency v. Mink,
410 U.S. 73 (1973) ...................................................................................................................... 3
Hunton & Williams LLP v. EPA,
346 F. Supp. 3d 61 (D.D.C. 2018) ............................................................................................ 11
*In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ........................................................................................... passim
Judicial Watch of Fla., Inc. v. U.S. Dep’t of Justice,
102 F. Supp. 2d 6 (D.D.C. 2000) .............................................................................................. 20
*Judicial Watch, Inc. v. U.S. Dep’t of Defense,
913 F.3d 1106 (D.C. Cir. 2019) ........................................................................................ 8, 9, 12

iii

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 5 of 33

*Judicial Watch, Inc. v. U.S. Dep’t of Justice,
365 F.3d 11085 (D.C. Cir. 2004) ....................................................................................... passim
Judicial Watch, Inc. v. U.S. Dep’t of State,
No. 13-CV-772 (CKK), 2019 WL 4228341 (D.D.C. Sept. 5, 2019) ........................................ 24
Lam Lek Chong v. DEA,
929 F.2d 729 (D.C. Cir. 1991) .................................................................................................. 23
Loving v. U.S. Dep’t of Def.,
550 F.3d 32 (D.C. Cir. 2008) .............................................................................................. 11, 12
Maydak v. U.S. Dep’t of Justice,
218 F.3d 760 (D.C. Cir. 2000) .................................................................................................. 20
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) .................................................................................................................... 3
Nat’l Sec. Archive v. CIA,
752 F.3d 460 (D.C. Cir. 2014) .................................................................................................. 16
*Nat’l Whistleblower Ctr. v. U.S. Dep’t of Health & Human Servs.,
903 F. Supp. 2d 59 (D.D.C. 2012) ...................................................................................... 17, 19
Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425 (1977) .................................................................................................................. 12
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978) .................................................................................................................... 3
NLRB v. Sears, Roebuck & Co.,
421 U.S. 132 (1975) .................................................................................................................. 11
Petroleum Info. Corp. v. U.S. Dep’t of Interior,
976 F.2d 1429 (D.C. Cir. 1992) ............................................................................................ 3, 11
*Prop. of the People, Inc. v. Office of Mgmt. & Budget,
330 F. Supp. 3d 373 (D.D.C. 2018) ........................................................................................ 7, 9
*Quiñon v. FBI,
86 F.3d 1222 (D.C. Cir. 1996) ............................................................................................ 23, 24
Ray v. Turner,
587 F.2d 1187 (D.C. Cir. 1978) ................................................................................................ 23

iv

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 6 of 33

Renegotiation Bd. v. Grumman Aircraft,
421 U.S. 168 (1975) .................................................................................................................. 11
*Tax Reform Research Group v. IRS,
419 F. Supp. 415 (D.D.C. 1976) ......................................................................................... 17, 19
Tri-State Hosp. Supply Corp. v. United States,
226 F.R.D. 118 (D.D.C. 2005).................................................................................................. 17
United States v. Nixon,
418 U.S. 683 (1974) .................................................................................................................... 3

STATUTES
5 U.S.C. § 552 ......................................................................................................................... 20, 23

OTHER AUTHORITIES
December 12, 2019 Production, Ctr. For Public Integrity v. DOD et al., Case No. 19-3265
(D.D.C.) .................................................................................................................................... 14
December 20, 2019 Production, Ctr. For Public Integrity v. DOD et al., Case No. 19-3265
(D.D.C.) .................................................................................................................................... 14
Jacques Singer-Emery & Jack Goldsmith, The Role of OMB in Withholding Ukraine Aid,
Lawfare (Oct. 16, 2019, 4:00 PM), https://bit.ly/2SJRKp9 ...................................................... 19
Jacques Singer-Emery, Margaret Taylor & Jack Goldsmith, More on the Role of OMB in
Withholding Ukrainian Aid, Lawfare (Oct. 23, 2019, 2:39 PM), https://bit.ly/37tQhbS ......... 19
Kate Brannen (@K8brannen), TWITTER, (Jan. 28, 2020, 9:37 AM), https://bit.ly/2waBciu ........ 25
Kate Brannen, Exclusive: Unredacted Ukraine Documents Reveal Extent of Pentagon’s
Legal Concerns, Just Security, Jan. 2, 2020, https://bit.ly/2UOiLdT ....................................... 25
S. Conf. Rep. No. 1200, 93d Cong. 2d Sess. (1974)..................................................................... 23
Sam Berger, Trump’s Hold on Ukraine Military Aid Was Illegal, Just Security,
Nov. 26, 2019, https://bit.ly/2OSwKM3................................................................................... 19
The Trump-Ukraine Impeachment Inquiry Report, H.R. Permanent Select Comm. on
Intelligence, Dec. 2019, https://bit.ly/2w9OxYn ................................................................ 19, 22

v

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 7 of 33

U.S. Gov’t Accountability Office, B-331564, Decision Matter of: Office of Management
and Budget—Withholding of Ukraine Security Assistance, Jan. 16, 2020,
https://bit.ly/37ldhde ................................................................................................................. 18

vi

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 8 of 33

STATEMENT OF INTEREST
Amici curiae are non-profit organizations that support government transparency and
accountability and promote government ethics, including through the use of Freedom of
Information Act (FOIA) requests.1 Each has substantial experience and expertise in the practical
workings of FOIA. Amici also frequently litigate FOIA cases including cases involving the
government’s application of both the deliberative process privilege and the presidential
communications privilege and have developed expertise on these privileges. Amici seek to file
this amicus curiae memorandum to supplement the Court’s understanding of the proper scope of
the presidential communications privilege and deliberative process privilege and the potential
consequences of expanding those privileges in the way the government attempts to do in this
case.
American Oversight is a nonpartisan, nonprofit section 501(c)(3) organization committed
to the promotion of transparency in government, the education of the public about government
activities, and ensuring the accountability of government officials. Through research and FOIA
requests, American Oversight uses the information it gathers, and its analysis of it, to educate the
public about the activities and operations of the federal government through reports, published
analyses, press releases, and other media. American Oversight frequently requests records from
federal government agencies that potentially implicate the privileges at issue here. American
Oversight also has extensive experience litigating the scope of those privileges. In the last year
alone, American Oversight has briefed questions regarding the proper scope of the presidential

Amici confirm that no party’s counsel authored this brief in whole or in part; no party or party’s
counsel contributed money that was intended to fund preparing or submitting the brief; and no
person, other than amici, their members, or their counsel, contributed money that was intended to
fund preparing or submitting the brief.
1

1

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 9 of 33

communications privilege on several occasions, including in situations not dissimilar to the one
at issue here, where an agency has relied on the presidential communications privilege to
withhold communications that are wholly internal to an executive agency, or do not directly
involve the President or any other senior presidential advisor. See, e.g., Cross-Mot. for Summ. J.,
Am. Oversight v. DOD et al., No. 18-787 (Dec. 4, 2019), ECF No. 31-1; Cross-Mot. for Summ.
J. at 30–36, Am. Oversight v. GSA et al., No. 18-2419 (Dec. 4, 2019), ECF No. 23-1; Cross-Mot.
for Summ. J. at 31–35, Am. Oversight v. OMB, No. 18-2424 (June 28, 2019), ECF No. 19-1.2
Democracy Forward Foundation (“Democracy Forward”) is a nonpartisan non-profit
corporation organized under section 501(c)(3) of the Internal Revenue Code and incorporated
under the laws of the District of Columbia. Democracy Forward works to promote transparency
and accountability in government, in part, by enhancing public awareness of unlawful
government actions and policies. As part of this work, Democracy Forward regularly requests
federal agency records through FOIA, including records that potentially implicate the privileges
at issue in this case. Democracy Forward regularly litigates FOIA requests in which agencies
have asserted the privileges at issue in this case, and Democracy Forward has litigated the proper
scope of privileges under Exemption 5 of FOIA. See, e.g., Cross-Mot. for Summ. J., Democracy
Forward Found. v. Ctrs. for Medicare & Medicaid Servs., 18-cv-635 (Jan. 13, 2020).

Amicus American Oversight also currently has pending litigation regarding its own FOIA
requests relating to OMB’s decision to withhold aid from Ukraine, and in response to which
OMB has relied on many of the same exemptions they have applied in this case. See Am.
Oversight v. OMB et al., No. 19-3213 (D.D.C. filed Oct. 25, 2019). The records at issue in that
case overlap to some extent with the records at issue in this case, but there are additional nonoverlapping records involved in both cases.
2

2

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 10 of 33

ARGUMENT
The deliberative process privilege, at its core, is intended to protect candid pre-decisional
advice and recommendations to senior decisionmakers in the formulation of agency policy. 3 The
presidential communications privilege is even narrower, limited only to ensuring that presidential
decisionmaking is informed by robust advice and relevant information from senior presidential
aides.4 Agencies may not assert these privileges in support of broad exemption claims that
operate not to protect a decisionmaking process but instead to conceal or obscure government
conduct; withhold directives or guidance issued by senior decisionmakers; hide the real rationale
underlying government decisions; or suppress embarrassing or troubling information.
It undermines both FOIA and the values of transparency and accountability the statute
embodies if agencies can conceal from citizens basic facts about what the government is up to.
Congress enacted FOIA to give the public access to information about government operations in
order to inform public participation in democratic decisionmaking and ensure that the public can
hold the government accountable for its actions. As the Supreme Court has repeatedly explained,
“[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors accountable to
the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004) (emphasizing that the public’s
knowledge of government action is “a structural necessity in a real democracy.”). These

Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (“The
deliberative process privilege, we underscore, is centrally concerned with protecting the process
by which policy is formulated.”) (citing Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87 (1973)).
3

United States v. Nixon, 418 U.S. 683, 708 (1974) (“A President and those who assist him must
be free to explore alternatives in the process of shaping policies and making decisions and to do
so in a way many would be unwilling to express except privately.”).
4

3

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 11 of 33

promises of transparency and accountability are made real only if courts rigorously evaluate
whether the agency has demonstrated the elements necessary to show that a claimed privilege
actually applies, construe the exemptions narrowly as precedent demands, and compel agencies
to give the public the information it is entitled to under the law.
This is particularly the case where FOIA requesters seek timely disclosure of records
related to high-profile matters of intense public interest, such as the records at issue in this case.
Because the validity of agency withholding decisions is typically only resolved on summary
judgment after production is complete, improper or overbroad exemption claims can delay
disclosures until the public controversy has passed, depriving the public of the information it
needs to participate in an informed manner and potentially allowing officials to evade
accountability for their conduct. Thus, it is incumbent on the Court to carefully evaluate the
government’s claims of privilege here to ensure that the government has met its burden of
demonstrating that the requisite elements are, in fact, present.
The cursory support provided by Defendants appears to fall far short. To begin with, the
presidential communications privilege is narrow and typically applies only to communications
directly involving the president, vice president, or senior White House advisors to the president.
Nearly all, if not all, of the redacted communications appear to reach only DoD and, in some
cases, OMB officials, and were not received by any covered White House officials. Binding D.C.
Circuit precedent makes clear that the presidential communications privilege extends to purely
internal or inter-agency communications only in very limited circumstances, and Defendants
have not established that those narrow conditions are met here.
Both the agency declarations and a review of the redacted records also suggest that the
withheld material may, in some instances, contain information about agency actions; directives

4

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 12 of 33

or guidance by senior decisionmakers to agency officials; and the reasons for those actions,
directives, or guidance. But widely disseminated communications implementing decisions that
have already been made fall outside the scope of both the deliberative process privilege and the
presidential communications privilege.
Finally, the records at issue in this case appear to relate to troubling governmental
misconduct—that is, an unlawful withholding of funds appropriated by Congress in violation of
the Impoundment Control Act of 1974 in furtherance of an improper scheme to coerce a foreign
ally to investigate the President’s political opponents. As cases in this district have recognized,
the deliberative process privilege does not apply to communications concerning governmental
misconduct or violations of the law. Likewise, the presidential communications privilege—
which is supported by a policy rationale very similar to the one underpinning the deliberative
process privilege—should also not apply to protect such communications, particularly where, as
here, there is evidence that the President was involved in the relevant government misconduct.
At a minimum, the facts of this case—including the unusual and attenuated nature of the
privileges asserted, the possibility these records involve governmental misconduct, and the
likelihood of waiver given the large amount of information regarding these issues already
publicly disclosed—weigh strongly in favor of in camera review of the redacted materials.
I.

The Presidential Communications Privilege Is Narrow and Reaches Purely Intra- or
Inter-Agency Records Only in Limited Circumstances.
The presidential communications privilege is a narrow privilege that protects certain

communications between the president, vice president, and senior presidential advisors regarding
presidential decisionmaking. Its purpose is to “ensure that presidential decisionmaking is of the
highest caliber, informed by honest advice and full knowledge.” In re Sealed Case, 121 F.3d
729, 750 (D.C. Cir. 1997). The D.C. Circuit has repeatedly emphasized that it must be “carefully

5

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 13 of 33

circumscribed” and “construed as narrowly as is consistent with ensuring that the confidentiality
of the President’s decisionmaking process is adequately protected.” Id. at 752. Because of the
“dangers of expanding it too far,” Judicial Watch, Inc. v. U.S. Dep’t of Justice (Judicial Watch
I), 365 F.3d 1108, 1114–15 (D.C. Cir. 2004), the D.C. Circuit has advised that “[t]he presidential
communications privilege should never serve as a means of shielding information regarding
governmental operations that do not call ultimately for direct decisionmaking by the President,”
In re Sealed Case, 121 F.3d at 752.
Given its focus on protecting direct presidential decisionmaking, as a general matter, the
privilege does not reach purely internal agency communications or interagency communications
for the simple reason they are not communications with the president, vice president, or a
covered senior presidential advisor. The D.C. Circuit has explained that “the privilege should not
extend to staff outside the White House in executive branch agencies.” In re Sealed Case,
121 F.3d at 752. Thus, for example, in a FOIA case involving the Department of Justice’s Office
of the Pardon Attorney, the D.C. Circuit held that the presidential communications privilege does
not extend to internal agency records, even when those records contain information relevant to
presidential decisionmaking, so long as those communications were not themselves “authored or
solicited and received” by a senior presidential advisor. See Judicial Watch I, 365 F.3d at 1116–
17. Following this precedent, courts in this district have denied summary judgment to agencies
claiming the privilege as to “communications that were not actually transmitted to the White
House advisers or their staff,” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
Homeland Sec. (CREW I), 514 F. Supp. 2d 36, 50 (D.D.C. 2007); see also Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec. (CREW II), 592 F. Supp. 2d

6

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 14 of 33

111, 118 (D.D.C. 2009); Prop. of the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d
373, 389 (D.D.C. 2018).
This limitation on the privilege holds true even where internal or inter-agency
communications contain information with some connection to presidential decisionmaking, but
were not themselves “solicited and received” by a covered White House official. The D.C.
Circuit expressly held that the privilege does not reach internal agency deliberations, including
the gathering of information, even if the purpose of those internal discussions is ultimately to
inform agency advice or recommendations to the president, see Judicial Watch I, 365 F.3d
at 1115, including with respect to internal agency documents that were created “for the sole
purpose of advising the President on a non-delegable duty,” id. at 1117. According to the D.C.
Circuit, an extension of the privilege to purely internal agency records would be “unprecedented
and unwarranted.” Id. This is due in no small part to the fact that the “presidential
communications privilege, as its name and the Circuit’s opinions suggest, extends only to
communications,” not information writ large that may, at some later point, also be included in a
separate communication to the White House. CREW II, 592 F. Supp. 2d at 118 (emphasis
added); see also Prop. of the People, Inc, 330 F. Supp. 3d at 389 (“the presidential
communications privilege does not shield internal agency communications that never reached the
President or immediate White House advisers, even if the documents bear on matters of
Presidential decisionmaking”); CREW I, 514 F. Supp. 2d at 49 (holding that the mere fact that
internal agency communications are “‘intended’ for White House advisers or ‘revealing’
communications with White House advisers” is insufficient to trigger the presidential
communications privilege).

7

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 15 of 33

To be sure, the D.C. Circuit has recognized that there may be limited circumstances
where an agency can establish that the presidential communications privilege properly applies to
a record without demonstrating that the record itself was communicated to a covered White
House official, provided that the agency demonstrates that the record memorializes prior advice
or recommendations that were communicated to the president or to a senior presidential advisor
for purposes of advising presidential decisionmaking. See, e.g., Judicial Watch, Inc. v. U.S.
Dep’t of Defense (Judicial Watch II), 913 F.3d 1106, 1111–12 (D.C. Cir. 2019) (holding that the
presidential communications privilege applied to five records memoralizing legal advice to the
president and senior White House advisors regarding the raid on Osama bin-Laden’s compound).
Even in those circumstances, however, it is necessary for the agency to show that the record
reflects advice or recommendations actually communicated to a covered White House official,
not just internal agency preparations to gather information or provide recommendations that
might subsequently be used in presidential communications.
There are substantial questions about whether the presidential communications privilege
can properly apply to the records at issue in this case when these limitations on the privilege are
taken into account. The records for which Defendants have invoked the presidential
communications privilege here appear to be almost exclusively internal agency records or
communications between OMB and DOD, two federal agencies subject to FOIA. Defendants do
not argue that any covered White House official solicited and received these particular
communications themselves. And as discussed above, internal agency and inter-agency
communications that only contain information gathered in connection with potential future
presidential deliberations, but which are not themselves communications with covered senior
presidential advisors, are not covered by the privilege. See Judicial Watch I, 365 F.3d at 1115–

8

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 16 of 33

17; CREW I, 514 F. Supp. 2d at 48–50; CREW II, 592 F. Supp. 2d at 118; Prop. of the People,
Inc., 330 F. Supp. 3d at 389. Defendants also do not aver that these records fall into the narrow
category of internal agency records that reflect the substantive content of prior advice or
recommendations to the president and therefore also might properly be subject to the privilege.
Cf. Judicial Watch II, 913 F.3d at 1111–12. Consequently, Defendants have not met their burden
of establishing that the privilege properly extends to these records.
Rather than make these required showings, Defendants instead fall back on cursory and
insufficient claims about the records. Defendants’ Vaughn Index variously describes the bulk of
the records at issue as inter- or intra-agency email exchanges that “include[] references to
communications involving the President or his immediate advisors,” 5 or involving “the
President, the Vice President, or his immediate advisors,”6 and sometimes as inter- or intraagency email exchanges that “include[] a specific reference to communications involving the
President or his immediate advisors”7 (emphasis added). The other two records are described as
“briefing materials and talking points prepared for [the Secretary of Defense] in anticipation of a
meeting with the President or his immediate advisors.”8 These minimal descriptions plainly fail
to establish either that these particular communications were “solicited and received” by a
covered White House official, or that they contain information that reflects the substantive
content of prior advice and recommendations to such an official.9 OMB provides no basis to

Decl. of Heather Walsh at Ex.3, ECF No. 22-4 (“Vaughn Index”), Doc. Nos. 12, 13, 20, 33, 44,
56, 63, 64, 78 & 107.
5

6

Vaughn Index Doc. Nos. 34 & 35.

7

Vaughn Index Doc. Nos. 37, 57, 82, 83, 92, 95 & 99.

8

Vaughn Index Doc. Nos. 108 & 109.

The bare assertion that an internal or interagency email “references” in some way some
communication with the president, the vice president, or an unspecified immediate advisor to the
president does not suffice to show the privilege properly applies. OMB’s declaration provides no
9

9

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 17 of 33

conclude that any generic “references” to communications—indeed, even “specific” references
to communications—disclose information regarding the content of advice or recommendations
actually provided to the president. Internal agency records containing bare references that simply
indicate a communication occurred, but do not reflect the content of any advice or
recommendations to the president, are not covered by the privilege.
II.

Directives, Agency Actions, and the Reasons for Them Are Not Privileged.
The unredacted portions of the records at issue as well as Defendants’ description of the

discussions contained in those records also strongly suggest that much of the redacted material
consists of post-decisional information such as directives from senior officials to agency
employees and discussions about the implementation of such decisions. Of course, directives to
agencies to take an action, actual actions taken by an agency, and the reasons for those decisions
are not shielded from disclosure under the deliberative process privilege and would only be
protected by the presidential communications privilege in the relatively rare circumstances when

support for the conclusion that the withheld material reflects the substantive content of any actual
advice or recommendation to the president or a senior presidential advisor in any way
whatsoever. This paucity of information is only further underscored by the elaboration that only
a small subset of the emails include a “specific” reference to a communication with the president,
the vice president, or presidential advisor, whatever the distinction between a (presumably
general) reference and a specific reference may be in this context. Nor does the generic assertion,
without reference to any particular document, that the redacted portions of these documents
include information purportedly solicited and received by the President or by the Senior Advisor
to the White House Chief of Staff, see Decl. of Heather Walsh, at ¶ 32 ECF No. 22-4 (“Walsh
Decl.”), suffice to meet Defendants’ burden. To begin with, an assistant to the chief of staff,
twice removed from the president, such as Robert Blair, does not qualify as an “immediate”
advisor to the president, and Defendants have offered no evidence that he was acting on behalf of
a qualifying White House official. Even setting that aside, such a generic statement divorced
from any particular document lacks the specificity necessary to meet the agencies’ burden,
particularly given that the declaration is written in terms of “information” rather than actual
communications protected by the privilege. This shortcoming is further underscored by the
failure of the declaration’s promise that these facts are “reflected in the Vaughn Index,” id., to be
borne out by review of the relevant entries on that index.

10

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 18 of 33

the information was confidential and closely held.
Consistent with its purpose of protecting the agency’s policymaking process, the
deliberative process privilege is limited to materials that are “‘predecisional’ and ‘deliberative.’”
Loving v. U.S. Dep’t of Def., 550 F.3d 32, 38 (D.C. Cir. 2008) (citing In re Sealed Case, 121
F.3d at 737). A record is “predecisional” when “it was ‘prepared in order to assist an agency
decisionmaker in arriving at his decision,’ rather than to support a decision already made,” and
“deliberative” when it “reflects the give-and-take of the consultative process.” Petroleum Info.
Corp., 976 F.2d at 1434 (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184
(1975) and Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).
Documents are not “predecisional” and “deliberative” if they “simply state or explain a decision
the government has already made or protect material that is purely factual.” In re Sealed Case,
121 F.3d at 737. Thus, “Exemption 5 does not protect final statements of policy or final actions
of agencies, which have the force of law or which explain actions the agency has already taken;
nor does it protect communications that promulgate or implement an established policy of an
agency.” Brinton v. Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980) (citing NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 153–54 (1975)). Similarly, “[d]irectives from decisionmakers are
not covered by the deliberative process privilege.” Hunton & Williams LLP v. EPA, 346 F. Supp.
3d 61, 79 (D.D.C. 2018) (citing Coastal States Gas Corp., 617 F.2d at 866); see also Brinton,
636 F.2d at 605 (describing the inapplicability of the privilege to “final opinions,” which “flow
from a superior with policy-making authority to a subordinate who carries out the policy”).
The presidential communications privilege, for similar reasons, cannot be applied to
presidential directives that are “distributed and implemented widely throughout the Executive
Branch.” Ctr. for Effective Gov’t v. U.S. Dep’t of State, 7 F. Supp. 3d 16, 25 (D.D.C. 2013). The

11

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 19 of 33

presidential communications privilege exists primarily to ensure sufficient space to allow the
president to “obtain frank and informed opinions from his senior advisers.” Judicial Watch II,
913 F.3d at 1110 (citing Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 448–49 (1977)); In re
Sealed Case, 121 F.3d at 750 (“T]he privilege itself is rooted in the need for confidentiality to
ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and
full knowledge.”). To be sure, courts have found that the presidential communications privilege
may protect certain post-decisional communications by the president that remain confidential
and closely held among senior presidential advisors, where the continued confidentiality of those
directives is necessary to preserve the space for robust presidential deliberations. See Loving, 550
F.3d at 37–38 (“The privilege covers documents reflecting ‘presidential decisionmaking and
deliberations,’ regardless of whether the documents are predecisional or not.”) (citing In re
Sealed Case, 121 F.3d at 744–45). But the presidential communications privilege does not apply
to final decisions by the president that are widely circulated and implemented within the broader
executive branch. See Ctr. for Effective Gov’t, 7 F. Supp. 3d at 25.
This follows from the fact that the privilege “should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President's decisionmaking process is
adequately protected.” In re Sealed Case, 121 F.3d at 752; see also Judicial Watch I, 365 F.3d at
1112 (emphasizing need for courts “to strike a balance between the twin values of transparency
and accountability of the executive branch [and] protection of the confidentiality of Presidential
decision-making and the President's ability to obtain candid, informed advice”). Thus,
“[c]onfidentiality is the touchstone of the privilege.” Ctr. for Effective Gov’t, 7 F. Supp. 3d at
24–25. And the president’s confidentiality interests are not implicated where information is
widely shared beyond those senior presidential advisors with “close operational proximity” to the

12

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 20 of 33

president. Id.; see also In re Sealed Case, 121 F.3d at 752 (“[T]he privilege should not extend to
staff outside the White House in executive branch agencies.”); see also supra Section I.
Thus, courts in this district have properly held that widely distributed presidential
directives are not protected by the presidential communications privilege. See Ctr. for Effective
Gov’t, 7 F. Supp. 3d 16 (D.D.C. 2013); Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 87 F. Supp.
3d 223, 233 (D.D.C. 2015) (agreeing with Ctr. for Effective Gov’t’s holding that widely
distributed presidential directives are not subject to Exemption 5). In Center for Effective
Government, this court considered for the first time whether the privilege could apply to a
“presidential directive.” 7 F. Supp. 3d at 21; see also id. at 24 n.8. The court ruled that the
directive in question, which was a “final, non-classified, communication [that was] widely
distributed within the Executive Branch and implemented by lower-level staff members,” id. at
30, could not be withheld. As the Court explained, “the purposes of the [presidential
communications] privilege are not furthered by protecting from public disclosure presidential
directives distributed beyond the President's closest advisers for non-advisory purposes.” Id. at
27. The court rejected the government’s “unbounded” position, which seemed to claim that “the
mere fact that a President's direct involvement in a communication, either as an author or
recipient, renders it automatically protected.” Id. at 28. Instead, the Court emphasized the limited
nature of the privilege, explaining that “the privilege’s application to ‘final’ decisions, as in any
other circumstance, is no broader than necessary to ensure that the confidentiality of the
presidential decision-making process, and its concomitant decision-making benefits, are
‘adequately protected.’” Id. at 24 (citing Judicial Watch I, 365 F.3d at 1116).
In this case, there is good reason to believe the withheld and redacted material includes
non-privileged, post-decisional material. OMB’s declaration describes the discussion contained

13

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 21 of 33

in the responsive records as addressing “how best to execute a series of short-term budgetary
apportionment actions.” Walsh Decl. ¶ 18. An apportionment action, of course, follows a final
agency decision. Records describing how a decision is implemented, or “execute[d],” likewise
cannot be withheld since the deliberative process privilege cannot shield records of actions
actually taken by agencies. Further, Defendants appear to have failed to segregate
nondeliberative factual information in several locations.10
Likewise, OMB describes the redacted information as “reflecting communications by
either the President, the Vice President, or the President’s immediate advisors regarding
Presidential decision-making about the scope, duration, and purpose of the hold on military
assistance to Ukraine,” Walsh Decl. ¶ 31, although the actual entries in the Vaughn Index only
describe the redacted content as containing “references” to such communications, not as
“reflecting” them. Of course, information provided to federal agencies reflecting decisions about
the scope, duration, or purposes of a hold on spending obligated funds would not be privileged
given that it is post-decisional and was not closely held. Similarly, it is unclear why information
about “the status of an ongoing decision-making process,” id. ¶ 32, so long as it did not disclose
the content of the deliberations, would itself be privileged.
A review of the unredacted portions of the records reinforces these concerns. The
disclosed portions of the records suggest that they reflect ordinary internal and inter-agency
discussions about how to implement decisions that have already been made, or possibly
directives from senior decisionmakers that agency employees are executing. At best, although

Plaintiff in this action has posted the records produced by Defendants on the internet. See
December 12, 2019 Production at 096–101, Ctr. For Public Integrity v. DOD et al., Case No. 193265 (D.D.C.), https://bit.ly/2OSFdyM; December 20, 2019 Production at 015–16, Ctr. For
Public Integrity v. DOD et al., Case No. 19-3265 (D.D.C.), https://bit.ly/37shqfs.
10

14

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 22 of 33

neither the declarations nor the Vaughn Index establish these facts, some of the redacted records
might possibly be examples, like in Center for Effective Government, of employees of executive
branch agencies who are not White House officials and “serve no role in either the Cabinet or
NSC” being informed of a presidential directive so that they could implement the White House’s
already-made and widely-discussed decision. 7 F. Supp. 3d at 25.11 Regardless, these actions,
and the reasons provided for these decisions, are not privileged.
III.

Information Concerning Government Misconduct Does Not Fall Within the Scope
of the Deliberative Process Privilege.
It is well-established that the scope of the deliberative process privilege is limited by the

admonition that it cannot shield agency records from disclosure where they concern misconduct
or unlawful action. The privilege exists to encourage honest, candid advice in governmental
decisionmaking processes. But when decisionmakers have engaged in misconduct or unlawful
action, the interests underlying the privilege are not served by preventing disclosure of
documents containing communications relevant to those actions. The privilege is not intended to
ensure candor when government actors are deliberating over how to break the law. It is not a coconspirators’ privilege. Where, as here, a FOIA requester can show that there is a substantial
likelihood that agency actions were unlawful and related to misconduct—such as by pointing to a
formal finding by a government oversight body and the testimony of numerous government

December 12, 2019 Production at 106–08, Ctr. For Public Integrity v. DOD et al., Case No.
19-3265 (D.D.C.), https://assets.documentcloud.org/documents/6575105/CPI-v-DoD-12-Dec-19Release.pdf; December 20, 2019 Production at 022–23, Ctr. For Public Integrity v. DOD et al.,
Case No. 19-3265 (D.D.C.), https://assets.documentcloud.org/documents/6590667/CPI-v-DoDDec-20-2019-Release.pdf.
11

15

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 23 of 33

officials—the deliberative process privilege cannot shield agency communications about those
actions from disclosure.
Courts have long recognized that the central policy rationale underlying the existence of
the deliberative process privilege is that it serves “to encourage the candid and frank exchange of
ideas in [an] agency’s decisionmaking process” by ensuring such candor necessary for effective
decisionmaking is not chilled by the threat of disclosure. Nat’l Sec. Archive v. CIA, 752 F.3d
460, 462 (D.C. Cir. 2014); see also Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 13
(D.C. Cir. 2014). The privilege consequently “disappears altogether when there is any reason to
believe government misconduct occurred,” because “shielding internal government deliberations
in [the] context [of misconduct] does not serve ‘the public’s interest in honest, effective
government.’” In re Sealed Case, 121 F.3d at 738, 746.
Importantly, this misconduct exception limits the scope of the privilege’s protection, and
defines records concerning potential government misconduct to be entirely outside that scope.
Thus the presence of a reason to believe that deliberations involve official misconduct or
unlawful acts is not simply a factor to be weighed in determining whether a party overcomes the
qualified privilege through a showing of need;12 rather the misconduct exception defines the
scope of the privilege such that deliberations concerning potential misconduct are not privileged
in the first instance. See id. (“[T]he privilege disappears altogether when there is any reason to
believe government misconduct occurred.”); Alexander v. FBI, 186 F.R.D. 154, 164
(D.D.C. 1999) (rejecting government argument that balancing test was required to overcome

The deliberative process privilege is a qualified privilege, which can be overcome by a
sufficient showing of need for the privileged information. In re Sealed Case, 121 F.3d at 737 n.5,
746. In the FOIA context, some courts have concluded that, because a FOIA requester’s reasons
for seeking the requested information are not relevant under the statute, qualified privileges
cannot be overcome on the basis of a showing of “need” for the information. Id. at 737 n.5.
12

16

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 24 of 33

deliberative process privilege and holding “that the deliberative process privilege does not apply
if there is a discrete factual basis for the belief that ‘the deliberative information sought may shed
light on government misconduct’” (quoting In re Sealed Case, 121 F.3d at 746)); Tri-State Hosp.
Supply Corp. v. United States, 226 F.R.D. 118, 135 (D.D.C. 2005) (“Under the government
misconduct exception, there is no need to engage in a balancing test because the privilege does
not apply at all.”).
Consequently, courts in this District have for decades recognized that the government
misconduct exception prevents agencies from withholding information related to government
misconduct under the deliberative process privilege in FOIA cases. In Tax Reform Research
Group v. IRS, for instance, the court held that memoranda related to White House deliberations
over using the IRS in a “selective and discriminatory fashion” against opponents of the Nixon
administration were not “part of the legitimate governmental process intended to be protected by
Exemption 5,” and were thus subject to disclosure. 419 F. Supp. 415, 426 (D.D.C. 1976). The
court reasoned that deliberations need not be protected from disclosure when they were not “part
of any proper governmental process,” and, in an uncanny echo of recent events, concludes that
the communications regarding the use of “a government agency to deliberately harass an
opposition political party” cannot be privileged. Id. Courts considering the misconduct exception
have concluded that it applies when FOIA requesters “provide an adequate basis for believing
that [the requested documents] would shed light upon government misconduct.” Nat’l
Whistleblower Ctr. v. U.S. Dep’t of Health & Human Servs., 903 F. Supp. 2d 59, 67–68 (D.D.C.
2012) (citation omitted) (finding that Office of Special Counsel letter concluding there was a
“substantial likelihood” agency violated a law or regulation and declarations from agency

17

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 25 of 33

employees supported in camera review to determine if withheld records would shed light on
government misconduct).13
The documents at issue in this case—which Defendants have broadly redacted under an
assertion of the deliberative process privilege—plainly contain information directly related to
unlawful government actions and governmental misconduct of the highest order. The records
contain communications between OMB and DoD concerning the obligation of funds
appropriated by Congress to provide security assistance to Ukraine during a time period when
OMB was improperly acting to prevent those appropriated funds from being released. The
Government Accountability Office (“GAO”) specifically and formally determined that OMB
repeatedly violated the Impoundment Control Act of 1974 (“ICA”) by using footnotes in
apportionment schedules to improperly withhold funds appropriated to DOD to provide security
assistance to Ukraine. See U.S. Gov’t Accountability Office, B-331564, Decision Matter of:
Office of Management and Budget—Withholding of Ukraine Security Assistance, Jan. 16, 2020,
https://bit.ly/37ldhde.14 Furthermore, the alleged misconduct does not stop with these violations

Some courts in this district have mistakenly, in the view of the amici, conflated the
government misconduct exception to the deliberative process privilege—which defines
deliberations concerning misconduct as outside the scope of the privilege—with the showing of
need a plaintiff may make in civil litigation to gain access to privileged information and thus
found that the misconduct exception does not apply to FOIA cases because the plaintiff’s need is
not relevant under the statute. See Judicial Watch, Inc. v. U.S. Dep’t of State, 241 F. Supp. 3d
174, 183 (D.D.C.), amended on reconsideration on other grounds, 282 F. Supp. 3d 338 (D.D.C.
2017). The D.C. Circuit in In re Sealed Case, however, clearly distinguished between the
balancing of need that may overcome the qualified deliberative process privilege in civil
litigation, and the fact that “the privilege disappears altogether when there is any reason to
believe government misconduct occurred.” 121 F.3d at 746 (emphases added).
13

Legal experts on the power of the executive branch—including a former head of the
Department of Justice’s Office of Legal Counsel and a former senior OMB lawyer—agree that
OMB cannot lawfully use its apportionment power to withhold appropriated funds to achieve
policy aims, and that OMB’s action to prevent obligation of appropriated security assistance to
Ukraine was unlawful. See Jacques Singer-Emery & Jack Goldsmith, The Role of OMB in
Withholding Ukraine Aid, Lawfare (Oct. 16, 2019, 4:00 PM), https://bit.ly/2SJRKp9; Jacques
14

18

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 26 of 33

of the ICA; rather, the evidence indicates that these unlawful acts were part and parcel of a
concerted effort by President Trump to use official acts to pressure Ukraine into investigating his
political rival, former Vice President Biden, and his family. High-ranking officials testified, and
provided documentary evidence, that they understood these unlawful delays in the assistance to
Ukraine were improperly motivated by the president’s desire to pressure Ukraine to announce an
investigation of one of his political opponents.15
The agencies’ violation of the law identified by GAO, particularly viewed in the context
of the evidence developed by congressional inquiries of a larger campaign to use official actions
by the U.S. government to coerce a foreign government to investigate a political rival of the
President, shows precisely the type of “extreme government wrongdoing”—here, misconduct
that threatens the separation of powers and the very foundations of American democracy—
concerning the subject matter of the records at issue in this case that prevents a finding that the
relevant documents are properly privileged. Nat’l Whistleblower Ctr., 903 F. Supp. 2d at 68.
Deliberations that are not part of a “legitimate governmental process”—like those which concern
“using a government agency to deliberately harass an opposition political party”—cannot be
shielded from disclosure by the deliberative process privilege. Tax Reform Research Grp., 419 F.
Supp. at 426. In light of the substantial reason to believe that the withheld materials relate to this
governmental misconduct, Defendants have failed to meet their burden of demonstrating that

Singer-Emery, Margaret Taylor & Jack Goldsmith, More on the Role of OMB in Withholding
Ukrainian Aid, Lawfare (Oct. 23, 2019, 2:39 PM), https://bit.ly/37tQhbS; Sam Berger, Trump’s
Hold on Ukraine Military Aid Was Illegal, Just Security, Nov. 26, 2019,
https://bit.ly/2OSwKM3.
See The Trump-Ukraine Impeachment Inquiry Report at 127–39, H.R. Permanent Select
Comm. on Intelligence, Dec. 2019, https://bit.ly/2w9OxYn (summarizing testimony of
Ambassadors Gordon Sondland, Bill Taylor, Kurt Volker, and other officials supporting the
finding that releasing the hold on assistance appropriated to aid Ukraine was conditioned on
Ukraine announcing or undertaking an investigation of former Vice President Biden and his son).
15

19

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 27 of 33

communications surrounding that misconduct are properly privileged and exempt from
disclosure.16 Moreover, even if there were some technical view in which portions of these
records were properly privileged, Defendants also have not adequately made the independent and
required showing that withholding the redacted information is necessary because of a foreseeable
harm to an interest protected by an exemption, see 5 U.S.C. § 552(8)(A)(i)(I). In light of the
evidence of misconduct, there is no—and logically can be no—foreseeable harm from the
disclosure of evidence of governmental wrongdoing to the interest of the deliberative process
privilege in protecting candor in legitimate decisionmaking processes. Given that there is reason
to believe that disclosing the redacted material would shed light on unlawful actions and
governmental misconduct with respect to Defendants’ unlawful actions to withhold assistance
Congress appropriated to aid Ukraine as part of a scheme to coerce Ukraine to investigate one of
the President’s political rivals, records containing deliberations concerning those actions are not
properly subject to the deliberative process privilege. 17

It is the government’s burden to prove the applicability of all FOIA exemption claims it
asserts. Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). Although the
government may not generally have to prove in the first instance that all documents over which it
asserts the deliberative process privilege do not concern government misconduct, in the face of
substantial evidence of such misconduct the government must provide evidence of the absence of
such wrongdoing to meet its burden. Cf. Judicial Watch of Fla., Inc. v. U.S. Dep’t of Justice, 102
F. Supp. 2d 6, 15 (D.D.C. 2000) (finding that the government was not required to show the
absence of misconduct “in the first instance” where the FOIA requester “failed to provide an
adequate basis for believing” misconduct occurred).
16

Between the GAO’s formal finding of unlawful acts and the evidence produced in
congressional inquiries that these unlawful acts were part of a broader, improper scheme to use
official governmental acts to coerce Ukraine to investigate one of the President’s political rivals,
there is undoubtedly sufficient prima facie evidence the records relate to governmental conduct
to shift the burden to Defendants to demonstrate that the records do not, in fact, relate to
misconduct. Moreover, even if Defendants dispute GAO’s formal finding that the agencies’
actions unlawfully violated the Impoundment Control Act of 1974, the question of whether the
delays in funding were unlawful is a legal question appropriate for resolution by the courts.
Anything less would limit the misconduct exception to cases in which the executive branch
17

20

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 28 of 33

IV.

The Presidential Communications Privilege Should Not Reach Communications
Concerning Government Misconduct, Particularly Where the President
Participated in or Directed That Misconduct.
For similar reasons, the presidential communications privilege should be construed not to

reach communications regarding misconduct or unlawful governmental conduct, at least where
there is reason to believe the president is directly involved in that misconduct or unlawful act.
Courts have not ruled directly on whether the government misconduct exception applies to the
presidential communications privilege. However, that privilege exists for purposes that are
nearly identical to the deliberative process privilege: to ensure “the President’s access to honest
and informed advice and his ability to explore possible policy options privately” in the service of
“presidential decisionmaking.” In re Sealed Case, 121 F.3d at 751. The policy interest in
protecting presidential decisionmaking upon which the privilege rests does not extend to
presidential decisions to engage in governmental misconduct or to direct government actors to
violate the law. Just as the deliberative process privilege cannot be invoked to prevent disclosure
of deliberations that were not “part of any proper governmental process,” Tax Reform Research
Group, 419 F. Supp. at 426, the presidential communications privilege should not shield
documents from disclosure that were not part of a legitimate “presidential decisionmaking”
process.
Amici acknowledge that the court in In re Sealed Case reasoned that separation of powers
concerns should prevent the courts or Congress from easily negating the constitutionally based
presidential communications privilege, 121 F.3d at 745, and stated in dicta that overcoming the
privilege “seemingly” requires a showing of need, id. at 746. But the facts at issue in that case

agrees it has transgressed, a standard that would be rarely met and could be easily circumvented
by minimal protestations of innocence in the face of substantial independent evidence.
21

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 29 of 33

differ materially from the facts here. In re Sealed Case involved allegations of misconduct by a
senior administration official, former Secretary of Agriculture Mike Espy, but there were no
allegations that the President was himself implicated in any way in the alleged wrongdoing. Id.
at 734–35. The court consequently expressed concern about the president’s ability to receive
frank advice and accurate information concerning his subordinates’ misconduct in order to take
action to remediate that conduct, particularly through the appointment and removal power and
the duty to take care that the laws are faithfully executed. Id. at 753–54.
These concerns do not apply where, as here, there is substantial evidence that the
President himself was directly and personally involved in governmental misconduct. In cases
where the president has personally participated in, or even directed, the relevant government
misconduct, the separation of powers concerns the Circuit expressed in In re Sealed case simply
do not apply with any logical force. Here, witnesses in the congressional impeachment inquiry
have provided evidence that the President himself, in order to secure an announcement of an
investigation of one of his political opponents, directed that OMB improperly withhold aid that
Congress appropriated to assist Ukraine. See The Trump-Ukraine Impeachment Inquiry Report
at 127–39, H.R. Permanent Select Comm. on Intelligence, Dec. 2019, https://bit.ly/2w9OxYn.
Defendants have asserted that the presidential communications privilege (in conjunction with the
deliberative process privilege) prevents a number of the records at issue—records concerning the
withholding of assistance to Ukraine—from being disclosed. But applying the presidential
communications privilege to shield the communications of the President or his senior advisors
concerning the relevant misconduct here—unlike in In re Sealed Case—would not protect any
legitimate presidential decisionmaking process or serve the interests of ensuring that the
president is able to consider frank advice regarding how best to take care that the laws are

22

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 30 of 33

faithfully executed or whether to remove officials who may have acted unlawfully. Instead the
privilege, in the absence of applying a misconduct exception, would merely operate to shield the
President’s own wrongdoing from disclosure. And, as above, even if the privilege technically
applied, Defendants have failed to make the independent and necessary showing that disclosing
the information would cause a foreseeable harm to an interest protected by the exemption, as the
presidential communications privilege exists to protect the candor of legitimate presidential
deliberations, not to conceal evidence of presidential wrongdoing. See 5 U.S.C. § 552(8)(A)(i)(I).
V.

Atypical Privilege Claims Over Small Numbers of Documents Warrant In Camera
Review.
In camera review is particularly appropriate in FOIA cases where, as here, an agency

makes an atypical privilege claim over a small number of records. FOIA mandates that a “district
court must ‘determine the matter de novo’ and ‘may examine the contents of such agency records
in camera....’” Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987) (emphasis
in original) (citing 5 U.S.C. § 552(a)(4)(B). The “decision to conduct an in camera review is
committed to the ‘broad discretion of the trial court judge.’” Quiñon v. FBI, 86 F.3d 1222, 1227
(D.C. Cir. 1996) (quoting Lam Lek Chong v. DEA, 929 F.2d 729, 735 (D.C. Cir. 1991); see also
id. (“While in camera examination need not be automatic, in many situations it will plainly be
necessary and appropriate.”) (quoting S. Conf. Rep. No. 1200, 93d Cong. 2d Sess. 9
(1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6287). The D.C. Circuit has explained that, “[t]he
ultimate criterion” for a court to decide whether to conduct in camera review is “[w]hether the
district judge believes that in camera inspection is needed in order to make a responsible de novo
determination on the claims of exemption.” Carter, 830 F.2d at 392 (citing Ray v. Turner, 587
F.2d 1187, 1195 (D.C. Cir. 1978)). In camera review is “particularly appropriate” when (1) “the
agency affidavits are insufficiently detailed to permit meaningful review of exemption claims or

23

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 31 of 33

there is evidence of bad faith on the part of the agency,” (2) “the number of the withheld
documents” is low, and (3) “the dispute turns on the contents of the withheld documents, and not
the parties’ interpretations of those documents.” Quiñon, 86 F.3d at 1228 (internal citations
omitted).
The posture of this case militates in favor of in camera review. First, the number of
documents is relatively few. Second, Defendants have raised privileges in several atypical ways,
with only vague explanations to justify their assertions, leaving Plaintiff and the Court with
asymmetrical information about the underlying information, and making it unlikely the Court
can reach a “responsible de novo determination on the claims of exemption” without further
information. Carter, 830 F.2d at 392. Specifically, Defendants claimed the presidential
communications privilege over internal agency records and OMB communications with DoD
that did not include a covered White House official.18 And unredacted portions of the records
over which Defendants invoke the deliberative process privilege strongly suggest that the
redacted information is post-decisional. Third, there are, at a minimum, significant questions
about whether the redacted information relates to misconduct or an unlawful act. Finally, public
reports by individuals who have reviewed unredacted versions of the records in question have
indicated that the redactions appear to be improper and that information was withheld to conceal
embarrassing facts—suggesting reason to be concerned about “bad faith on the part of the

Courts in this district have reviewed records in camera in deciding whether agencies properly
asserted the presidential communications privilege. See, e.g. Judicial Watch I, 365 F.3d at 1115
(discussing district court’s in camera review); Ctr. for Effective Gov’t, 7 F. Supp. 3d at 19;
Judicial Watch, Inc. v. U.S. Dep’t of State, No. 13-CV-772 (CKK), 2019 WL 4228341, at *2
(D.D.C. Sept. 5, 2019). For “[t]he very reason that presidential communications deserve special
protection, namely the President’s unique powers and profound responsibilities, is
simultaneously the very reason why securing as much public knowledge of presidential actions
as is consistent with the needs of governing is of paramount importance.” Ctr. for Effective
Gov’t, 7 F. Supp. 3d at 24 (citing In re Sealed Case, 121 F.3d at 749).
18

24

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 32 of 33

agency.” See Kate Brannen, Exclusive: Unredacted Ukraine Documents Reveal Extent of
Pentagon’s Legal Concerns, Just Security, Jan. 2, 2020, https://bit.ly/2UOiLdT; see also Kate
Brannen (@K8brannen), TWITTER, (Jan. 28, 2020, 9:37 AM), https://bit.ly/2waBciu (“Having
viewed unredacted copies of the emails, I can report that several redactions merely hide
embarrassing details . . .”).
Collectively these facts indicate in camera review is appropriate here.
CONCLUSION
The overbroad understanding of the deliberative process and presidential
communications privileges advanced by Defendants here would have wide-ranging and
deleterious consequences for governmental transparency and accountability. Expanding these
narrowly drawn privileges as Defendants propose would threaten to conceal or obscure broad
swathes of governmental decisions, actions, and the reasons for them from public scrutiny. FOIA
was designed “to pierce the veil of administrative secrecy and to open agency action to the light
of public scrutiny” and these purposes underscore the importance of careful assessment and
narrow construction of exemptions to meaningfully realize the statute’s strong presumption in
favor of disclosure. For these reasons, amici respectfully suggest that this Court should grant
Plaintiff’s cross-motion for summary judgment with regard to the withheld materials discussed
herein and deny Defendants’ motion for summary judgment.

25

 Case 1:19-cv-03265-CKK Document 25-1 Filed 02/14/20 Page 33 of 33

Dated: February 14, 2020

Respectfully submitted,
/s/ Austin R. Evers
Austin R. Evers
D.C. Bar No. 1006999
Christine Monahan
D.C. Bar No. 1035590
Daniel A. McGrath
D.C. Bar No. 1531723
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5246
austin.evers@americanoversight.org
christine.monahan@americanoversight.org
daniel.mcgrath@americanoversight.org
Sean A. Lev, D.C. Bar No. 449936
Nitin Shah, D.C. Bar No. 156035
DEMOCRACY FORWARD
FOUNDATION
1333 H Street NW, 11th Floor
Washington, DC 20005
(202) 448-9090
slev@democracyforward.org
nshah@democracyforward.org
Counsel for Amici Curiae