Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff, Civil Action No. 19-2267 (LLA) v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the court on a motion for summary judgment by Defendant, the U.S.

Department of Justice (“DOJ”), ECF No. 25, and a cross-motion for summary judgment by

Plaintiff, Citizens for Responsibility and Ethics in Washington (“CREW”), ECF No. 27. Plaintiff

claims that DOJ violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by unlawfully

withholding certain records pertaining to an investigation into potential campaign finance

violations and obstruction of justice by individuals associated with Donald Trump’s presidential

campaign. The court will partially grant DOJ’s motion for summary judgment and deny CREW’s

motion for summary judgment.

I. Background

A. DOJ’s Investigation

The documents at issue in this case originate with Special Counsel Robert S. Mueller’s

investigation into Russian interference in the 2016 presidential election. During the course of the

Special Counsel’s broader investigation, officials discovered evidence suggesting that Michael

Cohen, President Trump’s former attorney, had engaged in potential wire fraud and violations of

the Federal Election Campaign Act, 52 U.S.C. § 30101 et seq. Special Counsel Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election

(“Special Counsel Report”), Vol. I App’x D, at D-4 (Mar. 2019). 1 The Special Counsel referred

this evidence to the U.S. Attorney’s Office for the Southern District of New York (“SDNY”) and

the Federal Bureau of Investigation (“FBI”) New York Field Office, which opened an investigation

in February 2018. Id.; see ECF No. 25-4; ECF No. 27-5, at 6-8. SDNY prosecutors later charged

Mr. Cohen with one count of unlawful corporate contribution, one count of making an excessive

campaign contribution, five counts of tax evasion, and one count of making false statements to a

bank. ECF No. 25-2 ¶¶ 6-7.

In August 2018, Mr. Cohen pleaded guilty to several felony counts and admitted that he

had coordinated a series of illegal contributions to President Trump’s campaign. See generally

ECF No. 27-6; ECF No. 27-7. Specifically, he admitted to making hush-money payments to two

women who claimed to have had extra-marital affairs with President Trump in order to prevent

their stories from coming to light until after the election. ECF No. 27-7, at 11-14. Government

filings make clear that the scheme was conducted in coordination with other individuals, including

executives at American Media, Inc. (“AMI”), a corporation with which DOJ entered into a

non-prosecution agreement. Id. at 11-14; 2 ECF No. 27-12, at 6. Several senior campaign officials,

including President Trump, were implicated in the scheme. ECF No. 27-6, at 12 (asserting that

Mr. Cohen “and one or more members of the [Trump] campaign[] offered to help deal with

negative stories”); ECF No 27-7, at 11 (explaining that Mr. Cohen “coordinated his actions with

1 The full report is available at https://perma.cc/GZQ4-JFPJ. 2 ECF No. 27-7—the Government’s Sentencing Memorandum in United States v. Cohen, No. 18-CR-602—refers to “Corporation-1.” This entity is AMI. ECF No. 27-1, at 3; see ECF No. 27-7 (describing the actions taken by Corporation-1); ECF No. 27-12, at 5-6 (same, but naming AMI). 2 one or more members of the campaign, including through meetings and phone calls, about the fact,

nature, and timing of the payments”).

SDNY prosecutors, assisted by the FBI, conducted a related investigation into whether

“certain individuals made false statements, gave false testimony or otherwise obstructed justice in

connection with the campaign finance investigation.” ECF No. 25-2 ¶ 9. Both investigations

continued through 2019. Id. ¶ 6. No individuals other than Mr. Cohen were charged based on

either investigation. Id. ¶¶ 7, 9.

The Special Counsel’s investigation proceeded in parallel with the SDNY investigation.

See ECF No. 27-1, at 2-3. President Trump publicly criticized DOJ during the investigations and

made several attempts to interfere. Special Counsel Report, Vol. II, 1-7, 48-61, 77-98, 107-13. In

particular, he criticized then-Attorney General Jeff Sessions for recusing from the investigation.

Id. at 3-4, 111. Mr. Sessions resigned in November 2018, and William Barr replaced him as

Attorney General in February 2019. ECF No. 27-1, at 9.

B. CREW’s FOIA Requests

CREW filed several FOIA requests in July 2019, seeking records “related to the now closed

investigation conducted by [the SDNY] into (1) who, besides Michael Cohen, was involved in and

may be criminally liable for the two campaign finance violations to which Mr. Cohen pled guilty;

and (2) whether certain individuals made false statements, gave false testimony, or otherwise

obstructed justice in connection with [the] investigation.” ECF No. 25-5, at 4. CREW specifically

sought “witness statements, investigative reports, prosecution memoranda, and FBI 302s,” 3 and

requested expedition because of the “exceptional media interest” at issue and the potential for the

3 FBI 302s are formal witness interview records memorialized on a standard form. See, e.g., United States v. Moore, 651 F.3d 30, 99 n.24 (D.C. Cir. 2011). 3 records to raise “questions about the government’s integrity that affect public confidence.” Id.

at 4, 6. At the end of July, CREW filed suit challenging DOJ’s refusal to expedite. ECF No. 1,

at 1, 9. The following month, CREW amended its complaint and added a claim for wrongful

withholding of non-exempt records. ECF No. 6, at 12.

The parties have worked together to resolve many of their disputes, such that only three

groups of documents remain at issue: (1) three memoranda and associated correspondence

between SDNY and DOJ leadership from November 29, 2018 through March 2, 2019 (the “SDNY

Correspondence”); (2) materials related to search warrants; and (3) documents related to interview

records, including documents created as a result of the interviews and the underlying materials

shared with interviewees as part of the process. See generally ECF Nos. 30, 32, 44.

The parties filed cross-motions for summary judgment in 2021. ECF Nos. 25, 27. In

July 2023, DOJ filed notice with the court that it had become aware of new information that could

be relevant to the case. ECF No. 35, at 1. The court (Sullivan, J.) stayed the case to allow the

parties to determine whether an agreement could be reached to further narrow the documents at

issue. ECF No. 44, at 1. The case was subsequently reassigned to the undersigned. Dec. 14, 2023

Dkt. Entry. In February 2024, the parties informed the court that they had agreed to exclude a

large group of documents pertaining to interview records from the case. Id. at 3. Nevertheless,

they maintained that the legal issues raised in their 2021 cross-motions remained ripe and in need

of decision. Id. at 3-4. The court lifted the stay, Feb. 26, 2024 Minute Order, and now turns to the

pending motions.

II. Legal Standard

The purpose of FOIA is “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Am. C.L. Union v. U.S. Dep’t of Just., 655 F.3d 1, 5 (D.C.

4 Cir. 2011) (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). Congress

nonetheless included nine exemptions to disclosure that “are intended ‘to balance the public’s

interest in governmental transparency against the legitimate governmental and private interests

[that] could be harmed by release of certain types of information.’” Tipograph v. Dep’t of Just.,

83 F. Supp. 3d 234, 238 (D.D.C. 2015) (quoting United Techs. Corp. v. U.S. Dep’t of Def., 601

F.3d 557, 559 (D.C. Cir. 2010)).

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). A court shall grant summary judgment “if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The agency invoking a FOIA exemption

bears the burden of demonstrating it applies. U.S. Dep’t of Just. v. Reps. Comm. for Freedom of

the Press, 489 U.S. 749, 755 (1989). Summary judgment may be awarded to the agency if it can

demonstrate that no material facts are in dispute, that it conducted an adequate search for

responsive records, and that each record has either been produced or is exempt from disclosure.

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 59 F. Supp. 3d 184, 189 (D.D.C. 2014). This

burden is met when agency affidavits or declarations “describe the justifications for nondisclosure

with reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). “Ultimately, an agency’s

justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

Wolf v. Cent. Intel. Agency, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. Cent. Intel.

Agency, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). “To successfully challenge an agency’s showing

5 that it complied with the FOIA, the plaintiff must come forward with specific facts demonstrating

that there is a genuine issue with respect to whether the agency has improperly withheld extant

agency records.” Manna v. U.S. Dep’t of Just., 106 F. Supp. 3d 16, 18 (D.D.C. 2015) (quoting

Span v. U.S. Dep’t of Just., 696 F. Supp. 2d 113, 119 (D.D.C. 2010)).

FOIA authorizes the court, within its “broad discretion,” to examine requested agency

records “in camera to determine whether such records or any part thereof shall be withheld” under

any of the law’s exemptions. Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998);

5 U.S.C. § 552(a)(4)(B). In camera review is generally disfavored, but it may be appropriate

where agency affidavits are “conclusory . . . or if they are too vague or sweeping.” Protect

Democracy Project v. U.S. Nat’l Sec. Agency, 443 F. Supp. 3d 1, 6 (D.D.C. 2020) (quoting Hayden

v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979)).

III. Discussion

A. The SDNY Correspondence

DOJ invokes FOIA Exemptions 5, 6, and 7(C) to justify its withholding of the SDNY

Correspondence, which is comprised of two groupings of memoranda and emails shared between

SDNY officials, the Office of the Attorney General (“OAG”), and the Office of the Deputy

Attorney General (“ODAG”) from late 2018 into early 2019. ECF No. 25, at 34-38; ECF No. 27-1,

at 14-15; ECF No. 30, at 9-21. The first batch of correspondence originated in November 2018.

DOJ states that around that time, ODAG requested that the SDNY “provide a list of certain current

open investigations, along with current investigative steps.” ECF No. 25-2 ¶ 36. The SDNY

shared this list, which consisted of “a brief description of the investigation, its status, and

anticipated investigative steps” in a November 29, 2018 email. Id. ODAG later asked the SDNY

to create a memorandum summarizing these investigations, which resulted in a December 15

memorandum “address[ing] the current status” of the pending investigations. Id. ¶ 38. The second 6 batch of correspondence was created “in connection with a meeting between the [newly confirmed]

Attorney General and the Deputy U.S. Attorney on or about February 25, 2019.” Id. ¶ 41. A

memorandum dated February 22, 2019 “summarized” sensitive pending investigations in advance

of the meeting, and a subsequent March 1 memorandum “was prepared to provide additional

information and to respond to certain questions asked by the Attorney General at the February 25

meeting.” Id.

The court finds that the portions of DOJ’s declarations related to the SDNY

Correspondence are too conclusory and vague to support application of Exemptions 5, 6, or 7(c).

However, as discussed further below, instead of ordering disclosure or in camera review of the

correspondence, the court will permit DOJ to supplement its declarations ex parte and under seal.

1. Exemption 5

FOIA Exemption 5 permits the government to withhold “intra-agency memorandums or

letters that would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). To fall within the exemption, a document’s “source must be a

Government agency, and it must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it.” U.S. Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). DOJ invokes two bases

for Exemption 5: the deliberative process privilege and the attorney work-product privilege. ECF

No. 25-1, at 34-37. Both fail at this stage.

Deliberative Process Privilege. “The deliberative process privilege ‘covers documents

reflecting advisory opinions, recommendations, and deliberations that are part of a process by

which Government decisions and policies are formulated.’” Reps. Comm. for Freedom of the

Press v. FBI, 3 F.4th 350, 361 (D.C. Cir. 2021) (quoting Klamath Water Users Protective Ass’n,

532 U.S. at 8). Its purpose is to “prevent injury to the quality of agency decisions” that might 7 otherwise be chilled or tempered by the possibility of disclosure. NLRB v. Sears, Roebuck & Co.,

421 U.S. 132, 151 (1975). To fall within its protection, a document must be both predecisional,

meaning that it was created prior to the adoption of a particular position or policy, and deliberative,

in that it reflects “the give-and-take of the consultative process.” Judicial Watch Inc. v. U.S. Dep’t

of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017) (quoting Pub. Citizen, Inc. v. Off. of Mgmt. &

Budget, 598 F.3d 865, 874 (D.C. Cir. 2010)). Such a determination is highly dependent on the

particular circumstances under which a document is created. See Judicial Watch, Inc. v. U.S. Dep’t

of Just., 20 F.4th 49, 55-57 (D.C. Cir. 2021) (“Judicial Watch I”). The agency invoking the

privilege bears the burden of proof and must explain “(1) ‘what deliberative process is involved’

and (2) ‘the role played by the documents in issue in the course of that process.’” Id. at 55 (quoting

Senate of Puerto Rico v. U.S. Dep’t of Just., 823 F.2d 574, 585-86 (D.C. Cir. 1987)). The agency

should also explain the “decisionmaking authority” of the author of the document and the “relative

positions in the agency’s chain of command occupied by the document’s author and recipient.”

Id. (quoting Senate of Puerto Rico, 823 F.2d at 586).

DOJ has not carried its burden because it does not explain how the SDNY Correspondence

is predecisional or how it is deliberative. Crucially, DOJ has not identified what deliberative

process or decision is in play. It states that when a subordinate litigating component like the SDNY

provides information to the OAG or ODAG, the superior components are deciding “whether and

how to weigh in on the investigations, including by endorsing, modifying, or rejecting the

contemplated actions of subordinate offices, especially when information relates to high-profile

and sensitive investigations.” ECF No. 30, at 10 (citing ECF No. 25-11 ¶¶ 13-15, 17-18, 21). This

does not clarify “what deliberative process is involved”—instead, it vaguely gestures to some

undefined potential decision. See Judicial Watch I, 20 F.4th at 55. The court does not know “the

8 ‘where,’ i.e., the stage within the broader deliberative process in which the withheld material

operates; and the ‘how,’ i.e., the way in which the withheld material facilitated agency

deliberation.” Id. at 56.

Reporters Committee provides a useful point of reference. 3 F.4th 350. There, the court

held that the privilege applied to a batch of emails discussing the FBI director’s draft letter to the

editor of a major newspaper in which he defended a departmental policy. Id. at 362. The emails

served to “figure out how to best promote and ensure the continuation of the FBI’s policy in the

face of intense congressional and public criticisms.” Id. at 363. The “where” and “how” were

clear—the emails arose in the early stages of the letter-drafting process and informed the contours

of the final letter. Id. at 363-64. There is no corollary here. Although the declarations provided

here make reference to the potential prosecution of individuals other than Mr. Cohen, they lack a

clear explanation of how the SDNY Correspondence relates to any concrete decision, like a

commitment to prosecute or a public relations strategy for the investigation. FOIA demands more.

As CREW notes, an intra-case comparison is additionally revealing. As part of his

declaration, SDNY Assistant United States Attorney Thomas McKay describes three memoranda

created in March and August 2018 as “classic prosecution memoranda.” 4 ECF No. 25-2 ¶ 33. He

specifies that two were prepared by Assistant United States Attorneys for review by SDNY

Executive Staff, and another was prepared by the Deputy United States Attorney for review and

consideration by the Deputy Attorney General and his staff. Id. ¶ 32. Mr. McKay uses specific

terms to describe their content: the memoranda evaluate the nature of the evidence, strength of the

case, what charges should be instituted, and more. Id. ¶ 33. Next, he identifies decisions

4 CREW does not contest DOJ’s withholding of these memoranda. ECF No. 27-1, at 12-13 n.1. 9 implicated by the memoranda, like whether to bring criminal charges or take certain investigative

steps. Id. ¶ 34. Mr. McKay clearly explains how those memoranda “formed an important part” in

tangible, specific decisions. Id.

Mr. McKay’s description of the SDNY Correspondence is markedly different. He states

that the documents were prepared by SDNY officials at the request of ODAG and he notes that

they “describe[] the status” of the relevant investigations. Id. ¶ 35. Rather than identifying a

particular decision, like an investigative step, his descriptions are one level removed—the

documents were prepared “for the purpose of briefing” and to “provide additional information.”

Id. ¶¶ 40-41. Although Mr. McKay broadly states that the memoranda were produced in

“anticipation of litigation,” he does not identify a decision (like a prosecution) or decisionmaker

(like the Deputy Attorney General). Nor does he explain how the documents played a role in any

process. Because it is not clear “what deliberative process [was] involved” or how the documents

contributed to deliberations, DOJ cannot invoke the deliberative process privilege on the record

currently before the court. Judicial Watch, Inc. I, 20 F.4th at 55 (quoting Senate of Puerto Rico,

823 F.2d at 585).

Work Product Privilege. The work-product privilege protects “materials ‘prepared in

anticipation of litigation or for trial by or for another party or its representative.” Judicial Watch,

Inc. v. U.S. Dep’t of Homeland Sec., 926 F. Supp. 2d 121, 137 (D.D.C. 2013) (“Judicial Watch II”)

(quoting Fed. R. Civ. P. 26(b)(3)(A)). The privilege protects the adversarial process, ensuring that

an attorney’s thoughts and mental impressions cannot be used against them. Nat’l Ass’n of Crim.

Def. Laws. v. Dep’t of Just., 844 F.3d 246, 251 (D.C. Cir. 2016). To assess its applicability, the

court must make a “case-specific determination that a particular document in fact was prepared in

anticipation of litigation.” Id. The D.C. Circuit has created a two-part test for the privilege: first,

10 the author of the document must have believed litigation was a real possibility at the time the

document was created; second, the document must have been created “because of” the prospect of

litigation. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 391 F. Supp. 3d 43, 50-51 (D.D.C. 2019)

(“Judicial Watch III”); see Equal Emp’t Opportunity Comm’n v. Lutheran Soc. Servs., 186 F.3d

959, 968 (D.C. Cir. 1999). The government must satisfy both prongs. Judicial Watch III, 391 F.

Supp. 3d at 50-51. The privilege must be narrowly construed, and it “does not extend to a

‘government attorney’s advice on political, strategic, or policy issues, valuable as it may [be].’”

Citizens for Resp. & Ethics in Wash. v. Dep’t of Just., 538 F. Supp. 3d 124, 135 (D.D.C. 2021)

(“CREW I”) (quoting Judicial Watch II, 926 F. Supp. at 144-45). “The government cannot satisfy

[its] burden with affidavits that are vague or conclusory, or merely parrot the statutory standard.”

Env’t Integrity Project v. Small Bus. Admin., 151 F. Supp. 3d 49, 53 (D.D.C. 2015).

For many of the same reasons explained above, DOJ has not carried its burden to support

application of the work-product privilege. DOJ’s declarations are so conclusory that the court

cannot determine with certainty whether the privilege applies. Larson, 565 F.3d at 862.

Mr. McKay states that the SDNY Correspondence was “prepared in anticipation of potential

prosecution of one or more individuals,” including an individual or individuals other than former

President Trump. ECF No. 25-2 ¶¶ 39, 42; ECF No. 30-1 ¶¶ 9-13. However, DOJ does not

provide detailed and specific information supporting a credible conclusion that litigation was

sufficiently concrete to warrant work-product privilege—it merely restates the legal standard with

little more detail. See ECF No. 25-2 ¶¶ 39, 42; ECF No. 30-1 ¶¶ 9-13.

The lack of detail is problematic because it is not obvious whether the author of the

documents believed that litigation was a real possibility or whether the documents were created

“because of” the prospect of litigation. Judicial Watch III, 391 F. Supp. 3d at 50-51. The

11 documents at issue “describe the status” of the relevant investigations and “provide additional

information” to agency higher-ups. ECF No. 25-2 ¶¶ 35, 40-41, 43. It is not clear whether the

documents would have been prepared but-for the alleged “potential prosecution” to which DOJ

gestures. Judicial Watch III, 391 F. Supp. 3d at 51 (explaining that the “germane inquiry is

whether [documents] would have been prepared . . . but for [an] impending prosecution”). If the

documents would have been prepared regardless of any specific litigation, they could not have

been prepared “because of” it. See id.

The relevant declarations—from Mr. McKay and Timothy Ziese, Senior Supervisory

Attorney in DOJ’s Office of Information Policy—provide little useful detail to make this

assessment. In Judicial Watch III, the court determined that documents were protected work

product where an agency declaration established that the records were created “for the purpose of

gathering evidence that could be presented to a grand jury and that could factor into the case to be

presented at the trial.” Id. Such a statement explicitly connected the withheld records to clear

litigation decisions: presentation to a grand jury and at an eventual jury trial. See id. That type of

connection is lacking here. Mr. Ziese contends that the December 15, 2018 memorandum was

“prepared in anticipation of litigation because it discusses the nature of ODAG’s request for

information regarding the status of particular investigations and prosecutions of interest to

ODAG.” ECF No. 25-11 ¶ 17. Similarly, Mr. McKay states that the memoranda “were prepared

in anticipation of litigation, specifically the potential prosecution of individuals other than Michael

Cohen,” but he provides no details related to concrete litigation steps. ECF No. 25-2 ¶¶ 39, 42.

The declarations overwhelmingly suggest that the records were created for the purpose of briefing

senior DOJ leadership on the status of the investigations—hardly a clear litigation purpose. Id.

¶¶ 40-41 (explaining that the relevant documents were created for the “purpose of briefing senior

12 DOJ leadership” and to “provide additional information and to respond to certain questions asked

by the Attorney General”); ECF No. 25-11 ¶¶ 17-18 (same).

DOJ seems to suggest that because these records were created by lawyers, in the context

of their jobs as prosecutors, it is obvious that credible litigation would follow. But that is not the

test. “[I]f the agency were allowed ‘to withhold any document prepared by any person in the

Government with a law degree simply because litigation might someday occur, the policies the

FOIA would largely be defeated.’” Senate of Puerto Rico, 823 F.2d at 587 (quoting Coastal States

Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)). Just because a senior DOJ

official could choose to make a litigation-related decision after reviewing a document does not

mean that he necessarily would. That does not clear the bar set by FOIA. 5

This is an instance where the government’s declarations simply lack reasonably specific

detail. Judicial Watch II, 726 F.3d at 215. For that reason, Exemption 5 is inapplicable to the

SDNY Correspondence on the record currently before the court.

2. Exemptions 6 & 7(C)

Exemptions 6 and 7(C) both protect personal privacy interests. 5 U.S.C. § 552(b)(6),

(7)(C). Exemption 6 allows agencies to withhold “personnel and medical files and similar files”

in circumstances where disclosure “would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects “records or information compiled for

law enforcement purposes . . . to the extent that the production of such law enforcement records or

5 CREW raises an additional ground for doubt. Contending that the only remaining target of the investigation was President Trump, it argues that the documents could not have been prepared in contemplation of litigation because DOJ policy prohibits prosecution of a sitting president. ECF No. 27-1, at 18-20, 25-26; ECF No. 32, at 4-9; ECF No. 27-13; see CREW I, 538 F. Supp. 3d at 140-41. The court need not reach this argument because DOJ’s declarations are deficient irrespective of the target of the investigation. 13 information . . . could reasonably be expected to constitute an unwarranted invasion of personal

privacy. Id. § 552(b)(7)(C). Analysis of these two exemptions is overlapping, although

Exemption 7(C) is “more protective of privacy than Exemption 6” and thus presents a lower bar

for the government. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 496 n.6 (1994);

Electronic Priv. Info. Ctr. v. U.S. Dep’t of Just., 18 F.4th 712, 718 n.5 (D.C. Cir. 2021) (“EPIC”).

In assessing whether disclosure is warranted, the court must “balance the [] privacy interest against

the public interest in disclosure.” EPIC, 18 F.4th at 718 (quoting Nat’l Archives & Recs. Admin.

v. Favish, 541 U.S. 157, 171 (2004)). “[T]he only relevant ‘public interest in disclosure’ . . . is the

extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]

significantly to public understanding of the operations or activities of the government.’” U.S.

Dep’t of Def., 510 U.S. at 495 (emphasis in original) (quoting Reps. Comm., 489 U.S. at 775).

Such interests include an understanding of the manner in which the federal government “handle[s]

the investigation and prosecution of crimes that undermine the very foundation of our

government.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d 1082, 1093

(D.C. Cir. 2014) (“CREW II”).

DOJ invokes Exemptions 6 and 7(C) to withhold portions of the SDNY Correspondence,

rather than the full tranche of documents. ECF No. 30, at 19. The privacy interest at issue is

potentially strong because, generally, “individuals have an obvious privacy interest cognizable

under Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement

investigation.” EPIC, 18 F.4th at 718 (quoting Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t

of Just., 854 F.3d 675, 682 (D.C. Cir. 2017) (“CREW III”)). But this privacy interest is “somewhat

diminished” for public officials and those who have already been publicly connected to an

investigation. Id. at 719 (quoting CREW II, 746 F.3d at 1092). As CREW notes, DOJ’s

14 descriptions of the documents they seek to withhold are quite vague, such that CREW—and the

court—cannot assess how the privacy interest applies. ECF No. 32, at 12.

The parties define the public interest in this case differently. DOJ characterizes the public

interest as “inform[ing] the public about why the Department declined to prosecute any individuals

besides Mr. Cohen.” ECF No. 25-1, at 19. CREW points to two slightly more specific purposes:

(1) showing whether “DOJ pulled its punches in the investigation of President Trump”; and

(2) revealing “the extent to which the President’s use of his appointment powers improperly

influenced investigations of his personal conduct.” ECF No. 27-1, at 27-28. CREW has the better

of the argument, as there is a weighty public interest in learning how DOJ “carried out [its]

statutory duties to investigate and prosecute criminal conduct.” EPIC, 18 F.4th at 721.

While the public interest is strong, the privacy interests at issue could potentially outweigh

it, depending on the particular identities of those implicated. The court thus lacks the information

it needs to appropriately assess application of Exemptions 6 and 7(C).

3. Supplemental Declarations

“[W]hen an agency’s affidavits or declarations are deficient . . . courts generally will

request that the agency supplement its supporting declarations.” Judicial Watch, Inc. v. U.S. Dep’t

of Just., 185 F. Supp. 2d 54, 65 (D.D.C. 2002); Spirko, 147 F.3d at 997 (“If the agency fails to

provide a sufficiently detailed explanation . . . the district court then has several options,

including . . . requesting further affidavits[.]”). Such an approach is preferred to in camera review

of the underlying documents, which “should not be resorted to as a matter of course, simply on a

theory that ‘it can’t hurt.’” Spirko, 147 F.3d at 997 (quoting Quinon v. FBI, 86 F.3d 1222, 1228

(D.C. Cir. 1996)); see Isiwele v. U.S. Dep’t of Health and Hum. Servs., 85 F. Supp. 3d 337, 344

(D.D.C. 2015).

15 CREW suggests that the applicability of Exemptions 5, 6, and 7(C) “hinges in part on

questions that that would very likely be answered by in camera review.” ECF No. 32, at 9. The

court agrees that more detailed information will likely resolve this dispute. DOJ states Mr. McKay

can “provide more detailed information in an additional declaration provided ex parte and under

seal.” ECF No. 30, at 11-12 n.7 (quoting ECF No. 25-2 ¶ 43). The court is amenable to DOJ’s

suggestion. 6 Accordingly, with respect to the SDNY Correspondence, the court denies DOJ’s

motion for summary judgment without prejudice to its renewal accompanied by supplemental

declarations. 7

B. Documents Related to Search Warrants

DOJ invokes FOIA Exemptions 6 and 7(C) to justify its withholding of four batches of

search warrant records. The documents include internal FBI records memorializing the execution

of a search and various supporting documentation for the warrants like applications and supporting

affidavits. ECF Nos. 25-2 ¶ 47; ECF No. 25-4, at 5. Both batches of documents relate to the

campaign finance investigations. ECF No. 25-2, ¶¶ 48, 50. The first group relates to an April

2018 warrant and resulting search of “various property of Mr. Cohen to obtain evidence in

furtherance of the campaign finance investigation.” Id. ¶ 48. The second group relates to a July

2018 search of “email accounts and stored electronic communications of certain third parties.” Id.

¶ 50. The court finds that Exemptions 6 and 7(C) apply and DOJ may withhold the records.

6 The court declines to consider the underlying documents in camera at this stage. See Spirko, 147 F.3d at 997. 7 Because the court finds that the current record does not support a definitive holding one way or another on the exemptions, it declines to engage in the foreseeable harm analysis established by the FOIA Improvement Act of 2016. 5 U.S.C. § 552(a)(8)(A)(i)(I); Reps. Comm., 3 F.4th at 369 (explaining agencies must identify specific harms that would result from disclosure, even if the requirements for withholding are met). It would be premature for the court to engage in such analysis at this stage because the court has not found that any exemptions apply. Should the court later come to such a conclusion, it will apply the relevant test. 16 Again, the court must “balance the [] privacy interest against the public interest in

disclosure.” EPIC, 18 F.4th at 718 (quoting Favish, 541 U.S. at 171). The privacy interests of the

affected individuals are strong. “There is little question that disclosing the identity of targets of

law-enforcement investigations can subject those identified to embarrassment and potentially more

serious reputational harm.” SafeCards Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991)

(quoting Senate of Puerto Rico, 823 F.2d at 588). DOJ argues that release of these materials

“would likely reveal the identities of individuals, other than Mr. Cohen, whose property was seized

in connection with [the campaign finance] investigation” ECF No. 25-2 ¶ 53. Disclosure may

also reveal the identities of other “person(s) of investigative interest.” Id. These individuals were

not charged and their identities have not been publicly disclosed. Id. ¶¶ 7, 9, 52-53. The court

thus concludes that these individuals have a strong, well-accepted interest in maintaining their

privacy. See, e.g., Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992) (explaining

that targets of investigations have a substantial privacy interest, as do third parties mentioned in

law enforcement records); CREW III, 854 F.3d at 682 (explaining that “individuals have an

obvious privacy interest . . . in keeping secret the fact that they were subjects of a law enforcement

investigation” (quoting Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995));

Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984) (explaining that “individuals have a strong

interest in not being associated unwarrantedly with alleged criminal activity”).

CREW argues that any individuals the government has already publicly linked to the

investigation have a diminished privacy interest. ECF No. 27-1, at 36. Not so. DOJ clarifies that

although the names of “one or more of the relevant individual(s) have appeared in other

government documents, the fact that these individual(s)’ property was subject to search has not

been officially acknowledged or disclosed.” ECF No. 30, at 16 (citing ECF No. 25-2 ¶ 52). These

17 individuals retain a strong privacy interest because disclosure of the documents would reveal

previously unknown details about their involvement with the campaign finance investigation. See

CREW II, 746 F.3d at 1092 (explaining that even if “the fact that [an individual] was under

investigation” has been disclosed, that individual “retain[s] a second, distinct privacy interest in

the contents of the investigative files”).

As to the public interest, CREW draws heavily from EPIC. ECF No. 32, at 9-15. There,

the D.C. Circuit ordered disclosure of information related to Special Counsel Robert Mueller’s

campaign finance investigation. 18 F.4th at 722. Although strong 7(C) privacy interests were at

stake, the Court held that the significant public interest in learning whether the Special Counsel

“had the evidence but nevertheless pulled its punches” won out. Id. at 721 (quoting CREW II, 746

F.3d at 1093). CREW argues that this case is similar because disclosure of the “search records

would help the public understand whether DOJ failed to use the full breadth of its powers while

investigating the President’s role in Cohen’s offenses and the President’s efforts to conceal the

hush-money scheme.” ECF No. 32, at 13. CREW is correct that there is a strong public interest

in learning whether DOJ properly exercised its power to prosecute campaign finance crimes or if,

instead, the SDNY “pulled punches or Department leadership intervened.” ECF No. 32, at 13; see

EPIC, 18 F.4th at 721. However, CREW does not make clear how the search warrant records are

“likely to advance that interest.” EPIC, 18 F.4th at 721 (quoting Favish, 541 U.S. at 171).

In EPIC, the plaintiff sought “disclosure of passages contain[ing] detailed legal analysis

that show[] how the Special Counsel interpreted the relevant law and applied it to the facts” as part

of his decision to decline prosecution. Id. The court reasoned that that information was closely

connected to “substantive matters of important law enforcement policy” such that disclosure would

allow the public to understand how DOJ leadership had approached the investigation. Id. Further,

18 the Court determined that it did not matter that the relevant law and facts had already been publicly

disclosed, because the Special Counsel’s legal analysis had not been. Id.

The situation is materially different in this case. Unlike the Special Counsel’s legal

analysis in EPIC, the search warrant records at issue here largely contain factual assertions devoid

of legal analysis that may shed light on DOJ’s prosecutorial strategy. See ECF No. 25-2 ¶ 47; ECF

No. 25-4, at 5. Further, much of this factual material has already been released through public

filings in Mr. Cohen’s criminal proceedings. ECF No. 25-2 ¶¶ 52, 54. These are not memoranda

comprised of probative communication between DOJ and the SDNY or documents analyzing the

strength of a potential criminal charge. Accordingly, the information in the search warrants is

disconnected from the public interest at issue. See EPIC, 18 F.4th at 721-22.

On balance, then, the substantial privacy interests prevail because, although CREW’s

articulated public interest is weighty, the nexus between that interest and the documents is tenuous.

The court thus concludes that Exemptions 6 and 7(C) apply.

C. Interview Records and 302s

DOJ invokes FOIA Exemptions 5, 6, and 7(C) to justify its withholding of reports and

notes of interviews conducted during the SDNY’s investigations into potential campaign finance

violations and obstruction of justice. The relevant documents include FD-302s, interview

memoranda, and handwritten interview notes created between February 2018 and April 2019.8

ECF No. 25-1, at 6-7; ECF No. 25-2 ¶¶ 11-13. These documents were prepared by FBI Special

Agents, SDNY Agents, and other prosecutors around interviews that occurred on April 19, 2018

8 At the time the parties initially filed their cross-motions for summary judgment, this category of documents included every record listed in the Vaughn index under the heading “Interview Records.” ECF No. 25-4, at 2-3. The parties have since agreed to remove a subset of these records. ECF No. 44, at 2-3. 19 and January 14, 2019. ECF No. 25-2 ¶ 12. DOJ has already released redacted versions of similar

records stemming from interviews with individuals that have publicly acknowledged their

involvement in the investigation. ECF No. 25-3 ¶¶ 21-22. The remaining withheld documents are

“associated with interviews for which neither the witnesses nor the government have publicly

acknowledged . . . participation.” Id. ¶ 22.

The court concludes that these materials qualify as work product protected under

Exemption 5. These records are at the heart of the work-product privilege. Unlike with other

records at issue in this case, the court is able to determine from DOJ’s declarations that the authors

of these materials believed that litigation was a real possibility at the time of their creation and that

the documents were created “because of” the prospect of litigation. Judicial Watch III, 391 F.

Supp. 3d at 50-51. Mr. McKay states that the interviews and corresponding documents were

created by “prosecutors anticipat[ing] the potential for criminal charges” and drafted “in

connection with the prosecutors’ evaluation of whether criminal prosecutions were warranted.”

ECF No. 25-2 ¶¶ 15-16. These statements are comparable to those the court found sufficient in

Judicial Watch III. 391 F. Supp. 3d at 50-51 (determining that the attorneys had a reasonable

belief of litigation where an attorney familiar with the investigation stated that the interviews were

conducted while the government was moving toward an indictment).

The court is further satisfied that the documents were created “because of” the potential for

prosecution. Id. Mr. McKay explains that “[t]he [underlying] interviews were conducted and

recorded to gather and assess the extent to which evidence could be obtained to support criminal

charges” for a “grand jury or at trial.” ECF No. 25-2 ¶ 15. He states that disclosure would reveal

the prosecutors’ mental impressions because they crafted the questions to be asked, selected which

documents would be used during interviews, and directed the “focus and emphasis” of interviews.

20 Id. ¶ 16. Disclosure of such detailed information would surely reveal the prosecutors’ legal

analysis, including their theory of the case and other strategic assessments. See Hickman v. Taylor,

329 U.S. 495, 508 (1947). There would have been no reason to conduct the interviews, particularly

with the involvement of prosecutors, absent a possible prosecution. Further, the court notes that

many of the interview records at issue in this litigation have already been held to constitute

protected attorney work product by the Southern District of New York and the Second Circuit for

many of the same reasons stated here. See Am. Oversight v. U.S. Dep’t of Justice,

No. 19-CV-8215, 2021 WL 964220 (S.D.N.Y. Mar. 15, 2021), aff’d, 45 F.4th 579 (2d Cir. 2022).

It does not matter that some of the records were created by FBI or SDNY Special Agents

because the prosecutors directed their actions and designed the interviews. ECF No. 25-2 ¶¶ 12,

15. It is well established that the work-product privilege extends to materials created by an

attorney’s agent. United States v. Nobles, 422 U.S. 225, 238-39 (1975) (explaining that the

work-product privilege extends to the agents of an attorney because “attorneys often must rely on

the assistance of investigators . . . in preparation for trial”); Judicial Watch III, 391 F. Supp. 3d

at 50 (same). Relevant case law makes clear that interview records created by FBI agents, under

the direction of prosecutors, qualify as attorney work product. See, e.g., Leopold v. U.S. Dep’t of

Just., 487 F. Supp. 3d 1, 11-15 (D.D.C. 2020); Judicial Watch, Inc. v. U.S. Dep’t of Just., 806 F.

App’x 5, 6-7 (D.C. Cir. 2020) (“[W]e have long held that documents prepared by non-attorneys in

anticipation of litigation may also be protected by the privilege.”). In Judicial Watch III, the court

was able to conclude that the work-product privilege applied from an affidavit in which a

government declarant explained that “[p]rosecutors participated in selecting the[] witnesses,”

discussed “investigative strategy for each interview,” and “steered investigative efforts, focusing

on information needed to make charging decisions.” 391 F. Supp. 3d at 52. That is the case here,

21 too, where Mr. McKay explains that “SDNY prosecutors selected the witnesses to interview,

discussed and determined in advance the investigative strategy for witness interviews, and in most

cases led the interviews.” ECF No. 25-2 ¶ 10.

CREW argues that the applicability of Exemption 5 to the interview records “hinges in part

on questions that would very likely be answered by in camera review of the SDNY

Correspondence” because if “no litigation was reasonably foreseeable in late 2018 or early 2019,

the interview records drafted during that same period were not attorney work-product.” ECF

No. 32, at 9. The court is not persuaded. The court must assess the work-product privilege’s

applicability to each particular document requested. Nat’l Ass’n of Crim. Def. Laws., 844 F.3d

at 251. With respect to the interview records, DOJ has provided detailed explanations of the

process by which the documents were created, such that the court is satisfied that the exemption

applies. Id. In particular, Mr. McKay’s declarations provide sufficient context for the court to

concludes that the documents were created “because of” potential prosecutions. 9

IV. Conclusion

For the foregoing reasons, DOJ’s Motion for Summary Judgment, ECF No. 25, is

GRANTED in part and DENIED in part. CREW’s Motion for Summary Judgment, ECF No. 27,

is DENIED. The parties are directed to file a joint status report proposing next steps in this

litigation on or before September 3, 2024.

SO ORDERED.

/s/ Loren L. AliKhan LOREN L. ALIKHAN United States District Judge Date: August 20, 2024

9 In light of the court’s conclusion that the materials are covered by Exemption 5, it need not address Exemptions 6 and 7(C). Am. C.L. Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 n.2 (explaining that withholding is appropriate if records satisfy just one exemption). 22