Case 1:19-cv-01278-RBW Document 107 Filed 10/13/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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JASON LEOPOLD, BUZZFEED, INC.,
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Plaintiffs,
)
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v.
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Civil Action No. 19-cv-1278 (RBW)
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UNITED STATES DEPARTMENT OF
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JUSTICE, et al.
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)
Defendants.
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___________________________________ )
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CABLE NEWS NETWORK,
)
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Plaintiff,
)
)
v.
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Civil Action No. 19-cv-1626 (RBW)
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FEDERAL BUREAU OF
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INVESTIGATION,
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Defendant.
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___________________________________ )
DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR A
COURT ORDER TO REPROCESS THE FD-302s
INTRODUCTION
There is no basis to require the Federal Bureau of Investigation (“FBI”) to reprocess over
4,000 pages of FD-302s from the Special Counsel’s investigation into Russian interference in the
2016 Presidential election by October 28. The President’s recent statements on Twitter referencing
the “declassification” of information were not an order to the Department of Justice (the
“Department” or “DOJ”) to declassify the materials in this case. Decl. of G. Bradley Weinsheimer
¶¶ 4–5 (Oct. 13, 2020). The Twitter statements do not constitute a self-executing declassification
order. Id. ¶ 5. Indeed, they provide no more authority to the Department to declassify material

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that the Presidential Memorandum giving the Attorney General authority to declassify information
that the President signed on May 23, 2019. 1 See id. As with that memorandum, the President’s
Twitter statements do not require the declassification of any particular documents and have not
resulted in the declassification of any FD-302s at issue in this case. Id.
The Twitter statements also provide no basis for the Court to order the FBI to release
material that has been withheld under any Freedom of Information Act (“FOIA”) exemptions. The
Twitter statements do not even reference such material, and they “do not require altering any
redactions on any record at issue in this case, including, but not limited to, any redactions taken
pursuant to any discretionary FOIA exemptions.” Id.
Accordingly, there is no basis for the Court to order the release of classified or otherwise
exempt material in this case. Plaintiffs’ motion should be denied.
BACKGROUND
For the past year, the FBI has undertaken extraordinary efforts in extremely challenging
circumstances to diligently process the typewritten narratives of the FD-302s from the Special
Counsel’s investigation, and, as of October 1, has completed its processing of all the FD-302s. 2
Prior to production to Plaintiffs and in coordination with other governmental agencies, the FBI
redacted the FD-302s under various applicable exemptions, including Exemption 1 to prevent
disclosure of classified information; Exemption 3 to protect material that must be withheld
pursuant to a statute; and Exemption 5, to prevent the disclosure of privileged information. On

1

See Memorandum on Agency Cooperation with Attorney General’s Review of Intelligence Activities Relating to
the 2016 Presidential Campaigns (May 23, 2019), available at https://www.whitehouse.gov/presidentialactions/memorandum-agency-cooperation-attorney-generals-review-intelligence-activities-relating-2016presidential-campaigns/ (last accessed Oct. 12, 2020).
2

As the Court is aware, the FBI has sent certain FD-302s to other governmental agencies for consultation/coordination,
which will be produced to Plaintiffs at a later date.

2

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September 3, 2020, the Court upheld the Department’s withholding of information subject to the
attorney work-product doctrine and the presidential communications privilege under Exemption
5. 3 See Mem. Op., Dkt. 86; Order, Dkt. 87.
On October 6, 2020, the President issued two statements on Twitter in which he stated the
following:
I have fully authorized the total Declassification of any & all documents pertaining
to the single greatest political CRIME in American History, the Russia Hoax.
Likewise, the Hillary Clinton Email Scandal. No redactions!
All Russia Hoax Scandal information was Declassified by me long ago.
Unfortunately for our Country, people have acted very slowly, especially since it is
perhaps the biggest political crime in the history of our Country. Act!!!
Pls.’ Mot., Exh. A, Dkt. 102-1. Two days later, Plaintiffs filed their “emergency” motion, arguing
that these statements entitled them to the release of the majority of the information in the FD-302s
by October 28, 2020. See Pls.’ Mot., Dkt. 102.
The Court then ordered the Department to file a response addressing “the plaintiffs’ claim
that the tweets by President Donald Trump referred to in the plaintiffs’ motion resulted in the
waiver of exemptions under the Freedom of Information Act for the FD-302 reports prepared by
the Federal Bureau of Investigation of witness interviews from Special Counsel Robert Mueller’s
investigation into Russian interference in the 2016 United States presidential election.” Order,
Dkt. 103. The Court further ordered the Department to “confer with the White House in order to
advise the Court as to the White House’s official position regarding the declassification and release
to the public of information related to the Russia investigation.” Id.

3

Because the Court upheld the Department’s withholding of information subject to those privileges, the Court did not
consider whether certain information could also be withheld under the deliberative process privilege pursuant to
Exemption 5. See Mem. Op. 5 n.3, Dkt. 86.

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In compliance with the Court’s Order, the Department conferred with the White House
Counsel’s Office and obtained the White House’s official position on those matters, which is set
forth in the attached declaration from G. Bradley Weinsheimer, an Associate Deputy Attorney
General for the Department of Justice. See Weinsheimer Decl. ¶¶ 4–5.
ARGUMENT
I.

The President’s Statements on Twitter Did Not Declassify Any Information

The President has the authority to declassify documents that are otherwise currently and
properly classified. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (“The President, after all, is
the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, § 2.
His authority to classify and control access to information bearing on national security . . . flows
primarily from this constitutional investment of power in the President and exists quite apart from
any explicit congressional grant.”); cf. E.O. 13,526 § 3.1(d), 75 Fed. Reg. 707, 713 (Dec. 29, 2009)
(authorizing agency officials to declassify otherwise properly classified information in the public
interest on a discretionary basis). The President has not exercised this authority with respect to
any of the FD-302s remaining at issue in this case. See Weinsheimer Decl. ¶¶ 4–5.
Plaintiffs claim that the President exercised his authority to declassify all of the information
withheld from the FD-302s under Exemption 1 based on two statements the President made on
Twitter. See Pls.’ Mot. 2. But the Twitter statements “were not self-executing declassification
orders and do not require the declassification of any particular documents.” Weinsheimer Decl.
¶ 5. Plaintiffs have pointed to no order declassifying the documents at issue in this case. See
generally Pls.’ Mot. And DOJ is not aware of any order that either declassified the remaining
documents at issue or directed declassification of them. Weinsheimer Decl. ¶ 4.

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The Court cannot infer that any such sweeping order exists based on the President’s Twitter
statements because they merely suggest that the President “authorized” the “declassification” of
unspecified information. See Pls.’ Mot. Exh. A. The Twitter statements do not refer to any specific
document and do not indicate that the President was exercising his Constitutional authority to
declassify specific information. See id. They were not an order to declassify particular material.
Weinsheimer Decl. ¶¶ 4–5. In contrast to the ambiguous Twitter statements at issue in Plaintiffs’
motion, the President has previously clearly declassified and disclosed information when he
wished to do so. See, e.g., Letter from White House Counsel Donald McGahn to Representative
Devin Nunes (Feb. 2, 2018) (explaining that the President declassified a memorandum and
attaching that memorandum to the letter). 4
The Department of Justice did not receive any similar directive to declassify the FD-302s
at issue in this case. Weinsheimer Decl. ¶¶ 4–5. After the President made those statements on
Twitter, DOJ officials conferred with the White House Counsel’s Office and were informed that
there was no order requiring declassification or disclosure of any document at issue in this case.
Id. “The Department was further informed that the President’s statements on Twitter were not
self-executing declassification orders and do not require the declassification of any particular
documents.” Id. ¶ 5. Although in May 2019, the President did delegate declassification authority
to the Attorney General, to date, the Attorney General has not exercised that declassification
authority to release any of the redacted material in this case based on the President’s Twitter
statements. Id. In sum, the Twitter statements are not an order to declassify any FD-302s, the
Department has never received such an order, and the Department subsequently confirmed with

4

The letter is available at https://docs.house.gov/meetings/IG/IG00/20180129/106822/HMTG-115-IG00-20180129SD001.pdf (last accessed Oct. 10, 2020).

5

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the White House Counsel’s Office that there was and is no order to declassify materials at issue in
this case based on the Twitter statements. Id. ¶¶ 4–5.
Accordingly, because the Department has confirmed that the President’s statements on
Twitter did not constitute or reflect a presidential order to declassify any information, the Court
should not order disclosure of any information withheld under Exemption 1 in this case. See James
Madison Project v. Dep’t of Justice, Case No. 17-cv-00597 (APM), 2020 WL 1033301, at *2
(D.D.C. Mar. 3, 2020) (concluding that, upon review of a DOJ declaration that a White House
press release “did not constitute or reflect a presidential order to declassify” any materials, the
Department properly withheld classified information pursuant to Exemption 1); Poulsen v. Dep’t
of Def., 373 F. Supp. 3d 1249, 1279 (N.D. Cal. 2019) (“The President’s September 2018
‘declassification’ directive was not an ‘order’ from the President covering this material, just a
statement from the White House asking the executive agencies to undertake a review and further
justify the redactions.”).
II.

The President’s Statements on Twitter Did Not Waive Any Other FOIA
Exemptions

In addition to withholding classified information under Exemption 1, the FBI withheld
information from the FD-302s pursuant to multiple other exemptions, including, for example,
Exemptions 3, 5, 6, and 7. Plaintiffs argue that, because the President stated on Twitter that
documents related to Russian interference in the 2016 presidential election have been
“declassified,” “any FOIA exemptions have been waived with the exception of disclosures
prohibited by the Privacy Act, Rule 6(e) [of the Federal Rules of Criminal Procedure], or other
statutes that prohibit release.” Pls.’ Mot. 2, Dkt. 102. But the Twitter statements provide no basis
for the Court to make such an extraordinary finding.

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The Twitter statements, which reference purported “declassification” of unspecified
information, are entirely silent about information withheld on other grounds. See Pls.’ Exh. A,
Dkt. 102-1. And the White House has made clear that the Twitter statements “do not require
altering any redactions on any record at issue in this case, including, but not limited to, any
redactions taken pursuant to any discretionary FOIA exemptions.” Weinsheimer Decl. ¶ 5. “Nor
do the President’s statements on Twitter prevent the Department from taking appropriate
exemptions and redacting documents consistent with law and the positions the Department takes
in FOIA matters.” Id. Therefore, the Twitter statements do not, as Plaintiffs argue, operate as a
waiver of any of these exemptions.
Nor should the Court infer waiver. To take just one example, the D.C. Circuit has held
that, because executive privileges such as the presidential communications and deliberative
process privileges exist “to aid the governmental decisionmaking process, a waiver should not be
lightly inferred.” In re Sealed Case (Espy), 121 F.3d 729, 741 (D.C. Cir. 1997). Because the
Twitter statements do not mention privileged information, they cannot possibly constitute an
express waiver of executive privileges. See id.; see also Nixon v. Sirica, 487 F.2d 700, 717 (D.C.
1973) (finding that an explicit statement by President Nixon that “[e]xecutive privilege will not be
invoked” was insufficient to find waiver). Indeed, this Court recently determined that the
President’s statement on Twitter that “he ‘had the RIGHT to use [e]xecutive [p]rivilege,’ but that
he ‘did[] n[o]t!’” was insufficient to constitute a waiver of the presidential communications
privilege. Mem. Op. 17, Dkt. 86. If that statement was insufficient to constitute a waiver of
Exemption 5, a statement that is entirely silent about any privileged information should not have
a different result, especially given the subsequent clarification that the Twitter statements do not
operate as a waiver of any redaction. See Weinsheimer Decl. ¶ 5.

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The FBI redacted information from the FD-302s for other reasons as well, including, for
example, to prevent the disclosure of intelligence and law enforcement information and to protect
personal privacy. These redactions reflect “legitimate governmental and private interests [that]
could be harmed by release” of the underlying information. FBI v. Abramson, 456 U.S. 615, 621
(1982). DOJ’s declaration makes clear that the Twitter statements did not alter any of these
redactions. Weinsheimer Decl. ¶ 5. Accordingly, the Court should not order the mass disclosure
of information that could harm legitimate governmental and private interests based on Twitter
statements that are entirely silent about this material. 5
CONCLUSION
The Department’s declaration makes plain that the President’s Twitter statements did not
declassify or direct the release of any information in this case. Accordingly, the Court should deny
Plaintiffs’ motion.

Dated: October 13, 2020

Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
Civil Division
ELIZABETH J. SHAPIRO
Deputy Director
Federal Programs Branch
/s/ Courtney D. Enlow
COURTNEY D. ENLOW (N.C. Bar No. 46578)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch

5

Plaintiffs concede that the President’s statements on Twitter have no effect on the Department’s withholding of
federal grand jury information or intelligence sources and methods under the National Security Act pursuant to
Exemption 3 and certain information redacted to protect personal privacy. See Pls.’ Mot. 2 (stating that Plaintiffs are
not seeking information withheld pursuant to “the Privacy Act, Rule 6(e) [of the Federal Rules of Criminal Procedure],
or other statutes that prohibit release,” such as the National Security Act).

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1100 L Street, N.W.
Room 12102
Washington, D.C. 20005
Tel: (202) 616-8467
Email: courtney.d.enlow@usdoj.gov
Counsel for Defendant

9

 Case Document 107-1 Filed 10/13/20 Page 1 of 3

DECLARATION OF G. BRADLEY WEINSI-IEIMER

I, G. Bradley Weinsheimer, declare the following to be true and correct:

(1) I am an Associate Deputy Attorney General for the Department of Justice
(Department). I serve as the highest ranking career of?cial in the Department. I have held this
position since July 2018. Prior to that time, I served in the Department?s National Security
Division, from March 2016 to July 2018, serving as Acting Chief of Staff to the Assistant
Attorney General from May 2016 until approximately February 2018. I have worked at the
Department since 1991, including twenty years as an Assistant United States Attorney
in Washington, DC. As an AUSA, I handled a wide variety of narcotics, violent
crime, and public corruption cases, and held numerous supervisory positions, including Chief of
the Superior Court Division and Chief of the Grand Jury Section.

(2) The attorneys who served on the senior management team in the Special
Counsel?s Of?ce have left the Department. I did not directly work on or supervise the
Department?s investigation into Russia?s interference in the 2016 presidential election and
related matters (?Russia I do, however, work on issues relating to disclosure of
Russia Investigation documents both to Congress and pursuant to Freedom of Information Act
requests. I also participated in the review of Special Counsel Robert S. Mueller 
March 22, 2019 con?dential report to the Attorney General (?Mueller Report?) to determine
what material should be redacted. From this work, I generally am familiar with the investigatory
documents that were prepared during the Russia Investigation and with the Mueller Report?s

contents and redactions.

 

I The parameters of the Russia Investigation are described in DOJ Order No. 3915-2017.

Case Document 107-1 Filed 10/13/20 Page 2 of 3

(3) In the course of my of?cial duties, I have become familiar with the litigation
surrounding OIA requests related to the Russia Investigation, as well as the existence of similar
requests. I also have seen two statements the President made on Twitter on October 6, 2020,
relating to Russia Investigation documents.2 This declaration is based upon personal knowledge
as well as information provided to me in the course of my of?cial duties.

(4) As concerns the above?referenced tweets from the President, the Department has
not received a declassi?cation order from the President related to the materials at issue in this or
any other OIA case. After the President issued his statements on Twitter, I and other
Department of?cials consulted with the White House Counsel?s Of?ce about the matters
discussed in those statements, including potential declassi?cation of documents related to the
Russia Investigation and Hillary Clinton?s emails, and whether the Twitter statements were
meant as an order to alter any redactions that have already been taken on any materials in this
case and other FOIA cases. The purpose of this consultation was to obtain the of?cial position
of the White House regarding the meaning and effect of the President?s statements.

(5) The White House Counsel?s Office informed the Department that there is no
order requiring wholesale declassi?cation or disclosure of documents at issue in this matter. The
Department was further informed that the President?s statements on Twitter were not self-
executing declassi?cation orders and do not require the declassi?cation of any particular
documents. Instead, the President has authorized the Attorney General to declassify documents
as part of his ongoing review of intelligence activities relating to the 2016 Presidential election
and certain related matters. The Attorney General has not ordered the declassi?cation and

release of any of the redacted material in this case based on the President?s tweets. The

 

2 See 
I 3 1365 0640699224069.

2

Case Document 107-1 Filed 10/13/20 Page 3 of 3

Department was further informed that the President?s statements on Twitter do not require
altering any redactions on any record at issue in this case, including, but not limited to, any
redactions taken pursuant to any discretionary 01A exemptions. Nor do the President?s
statements on Twitter prevent the Department from taking appropriate exemptions and redacting

documents consistent with law and the positions the Department takes in FOIA matters.

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true

and correct.

Executed this QT?Lday of October, 2020.

 

 

G. Bradley Weinsheimer