Federal Court Rejects FBI’s Attempt To Glomar Its Way Out Of A Trump-Related FOIA Lawsuit
from the denied?-confirmed! dept
After Donald Trump was forced to vacate the Oval Office to make way for its newest tenant, he apparently decided to cement his legacy by walking off with boxes full of classified documents. When the National Archive and Records Administration began filing away the records Trump actually deigned to turn over to it, it found a bunch of classified information. This led to an investigation by the DOJ and, ultimately, a raid of Trump’s Mar-a-Lago residence to recover any other classified documents the ex-president might have taken with him.
Trump’s response to this investigation and raid was just as nonsensical as his response to any other of his numerous scandals: he claimed he had issued a standing order to immediately declassify any classified documents he walked out the door with. This obviously makes no sense. First, the President can’t actually issue this sort of order. Second, even if a President could, there would still need to be a declassification review process to ensure documents were properly redacted before being placed into the public domain.
Finally, his claim of a standing declassification order was rebutted by several Trump administration officials, his former national security advisor (John Bolton), his former Attorney General (Bill Barr), and two former White House Chiefs of Staff.
The Massachusetts branch of the ACLU decided to ask around to see if any of the many agencies generating classified documents had a copy of this supposed standing order from the President. It sent FOIA requests to the CIA, Defense Department, Office of the Director of National Intelligence (ODNI), NSA, DHS, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency (NGA). It also made the same request to the FBI, shortly after it performed its raid on Trump’s residence.
The DHS, NRO, and NGA told the ACLU they had no responsive documents. Other recipients apparently decided to let the FBI and its legal counseI answer for them. And that “answer” came in the form of a Glomar response: a refusal to confirm or deny the existence of this standing order. The ACLU sued.
And it has won, at least in terms of the FBI’s non-response response. The federal court handling the FOIA litigation says the FBI can’t play dumb here. Either the order exists (it doesn’t) or it doesn’t (it doesn’t), and the FBI — answering for other agencies — needs to tell the ACLUM whether or not the order exists. (It doesn’t.)
The court decision [PDF] points out all of the above. It notes that other agencies felt comfortable telling the ACLU they were never in possession of this standing order. It points out plenty of government officials have already gone on record to publicly state the order never existed. It’s only the FBI that seems to believe any confirmation of existence/non-existence would jeopardize its investigation, despite this investigation being anything but behind-the-scenes and cloaked in a dense layer of secrecy. Not only are other agencies and officials willing to publicly discuss this, but the FBI’s actions and statements have been part of headline news since the inception of this investigation.
If confirming or denying the order’s existence was going to jeopardize a sensitive law enforcement investigation, surely this jeopardization would have happened by now.
Three agencies—namely, the DHS, NGA, and NRO—already have responded to the ACLUM’s FOIA requests and stated that they do not have any responsive records. Seidel’s affidavit is silent as to how additional confirmation from Defendants would lead to any interference with the FBI’s investigation, where multiple other agencies have already disclosed the non-existence of responsive records in their respective possession. Seidel’s affidavit is also silent as to whether any of the alleged interference or harm has already occurred in light of the DHS’s, NGA’s, and NRO’s disclosures.
The FBI also argues that even if the court doesn’t believe its claim that scattershot confirmations would harm its investigation (and the court doesn’t), surely it must believe that the cumulative effect of the remaining FOIA respondents (those currently hiding behind the FBI’s Glomar skirt) denying the existence of this order would wreck up things for the g-men.
Nope, says the court. This argument is no better than the first one.
Defendants also emphasize that Defendants here include the head of the intelligence community, the ODNI, and the Department of Defense, where nine organizations of the intelligence community reside. But there is no explanation as to why it must be an all-or-nothing approach. In other words, if the potential harm is that the ODNI’s and DOD’s disclosure would be more informative than the disclosure of the DHS, NGA, and NRO, there is no explanation as to why the invocation of Glomar and Exemption 7(A) by certain other Defendants, like the CIA, is proper, especially where certain members of the intelligence community have already responded to the ACLUM’s request. Ultimately, the DHS’s, NGA’s, and NRO’s disclosures make Defendants’ and the FBI’s invocation of Glomar and Exemption 7(A) less logical or plausible, because the FBI never claimed that these disclosures interfered with its investigation.
On top of that, there’s all the prior public discussion of the confirmed nonexistence of Trump’s imaginary declassification order:
Moreover, not only did the DHS, NGA, and NRO state that they do not have responsive records, but over a dozen former top Trump administration officials have denied the existence of the Alleged Declassification Standing Order. These denials were issued publicly and to national news outlets, so to the extent the FBI is concerned that additional confirmation or denial from Defendants “might lead persons of interest to alter their testimony; destroy, adulterate, or fabricate evidence; . . . refuse to cooperate with the government altogether; . . . [or] to mold his or her statements in light of the prematurely disclosed evidence[;] . . . [or] provide those intent on interfering with the investigation additional pieces of information necessary to target their behaviors to maximize the effect of any efforts to undermine the investigation,” it appears that such persons would already have access to that information.
That’s just on the “denial” side of the thing the FBI doesn’t want to confirm or deny. But there’s also the “confirm” side, which has been the source of public statements from the only former government official to “confirm” the existence of a standing order no one else can seem to locate:
Moreover, to the extent responsive records do exist, Trump has already asserted that the Alleged Declassification Standing Order exists on national television, a forum where such persons were likely to hear it. Along these lines, it is not only Defendants and the FBI that have knowledge as to whether the order and other responsive records exist; that knowledge is also in Trump’s possession. This further undermines Defendants’ invocation of Exemption 7(A) for their Glomar responses.
If the target of your investigation already knows whether or not a document exists, it can’t possibly harm an investigation targeting them if others confirm or deny existence of this (nonexistent) declassification order.
The FBI now has until May 25th to answer the question it’s been dodging since it started answering for other federal agencies late last summer. This is truly a ridiculous use of the FBI’s time and legal resources. And we’re the ones who have to pay for this obnoxious, truly stupid waste of time. Everyone knows the document doesn’t exist. All we want is for these agencies to officially confirm what everyone already knows so that it’s only Trump who can continue living in denial.
Filed Under: classified documents, declassification, donald trump, fbi, foia, glomar, glomar resonse, transparency
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