A federal court has decided public statements — including a handful of tweets — from President Trump aren’t enough to undercut the DOJ’s Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)
The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could “reasonably be expected to interfere with law enforcement proceedings.”
One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can’t even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn’t engaged in.
The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar — not after President Trump himself appears to have confirmed he’s a target of an FBI investigation. The court notes it’s not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn’t enough to overcome the exemption. From the opinion [PDF]:
Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President’s summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.
In addition to Trump’s strange insistence that former FBI Director James Comey told him “three times” he wasn’t under investigation (in his letter to Comey informing him he’d been fired), the plaintiffs point to a television interview where Trump reiterated his “three times” claim, and a number of tweets about “witch hunts” issued by the president.
The court notes there’s a lack of specificity in Trump’s public statements. Trump’s claims he was told multiple times he was not under investigation doesn’t necessarily indicate the DOJ or FBI hold records containing this information. Trump supposedly received this info from Comey three times in three different personal conversations with the FBI director — none of which required official documentation.
The tweets are, unfortunately, not very precise either. As the court points out, “rambling” emissions during early morning hours are hardly hard proof the FBI/DOJ have records pertaining to investigations/non-investigations of President Donald Trump. The court makes it pretty clear Trump’s tweets should not be read as official statements confirming the existence of anything.
As stated before, an official acknowledgment cannot be based on “public speculation, no matter how widespread.” Here again, plaintiffs admit that President Trump’s exclamations were sparked by information disseminated by the press, rather than government documents, so those tweets cannot constitute an official acknowledgment.
Plaintiffs argue that the problem is cured in this situation because the President’s tweets officially acknowledged the “authenticity” of the leaked questions. That is quite a stretch. The President complains that it was “disgraceful that the questions concerning the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the questions” (emphasis added), the tweet does not confirm or even imply that the published list is accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single article in a rambling set of comments issued at 4:00 in the morning.
The second and third tweets in the series are even further from official acknowledgments than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is vociferously attacking the investigators makes the proposition that he was speaking on their behalf in this instance somewhat dubious.
And so it goes for the rest of the President’s public statements, made during interviews with television shows and websites. The statements made are vague and tend not to confirm existence of documents. Most of what the President has said about the investigation the DOJ can neither confirm nor deny has been “impassioned but disjointed.” The court says the plaintiffs need far more than imprecise ramblings to prevail and grants the DOJ’s motion to dismiss the case.
Precision matters when you’re going up against the government in a FOIA case. Interpretations of imprecise statements tends to end up weighing in the favor of non-disclosure, despite the FOIA’s statutory presumption of transparency. A public official rambling on about witch hunts at 4 a.m. probably shouldn’t be treated as a trustworthy source of inside information — especially when that official routinely inverts the Glomar by confirming and denying (“I’m not under investigation,” “WITCH HUNT!”) an investigation exists.