Leopold v. Dep't of Justice & Dep't of Homeland Sec.

301 F.Supp.3d 13

Jason LEOPOLD and Ryan Noah Shapiro, Plaintiffs,

v.DEPARTMENT OF JUSTICE and Department of Homeland Security, Defendants.

Civil Action No. 16–1827 (BAH)

United States District Court, District of Columbia.

Signed March 19, 2018

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiffs.

Stephen M. Pezzi, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiffs, Jason Leopold, an investigative reporter, and Ryan Noah Shapiro, "an historian of national security, the policing of dissent, and governmental transparency," First Am. Compl. ("FAC") ¶¶ 1–2, ECF No. 4, challenge the responses of the Federal Bureau of Investigation ("FBI"), a component of the Department of Justice ("DOJ"), and the Secret Service, a component of the Department of Homeland Security, to their four records requests submitted pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.¹ The FOIA requests at issue seek information about "how" the FBI and Secret Service "referenced or discussed internally," Pls.' Mem. Supp. Cross–Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. ("Pls.' Opp'n") at 2, ECF No. 22–1, two statements made in July and August 2016 by then-Republican presidential candidate Donald Trump, and a third statement made in July 2016 by a New Hampshire state legislator. These statements, in the plaintiffs' view, "arguably crossed the line between free speech and inciting imminent unlawful action." Id. at 1. The parties have now cross-moved for summary judgment. Defs.' Mot. Summ. J. ("Defs.' Mot."), ECF No. 18; Pls.' Cross–Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. ("Pls.' Cross–Mot."), ECF No. 22. For the reasons set forth below, the defendants' motion is granted and the plaintiffs' cross-motion is denied.

I. BACKGROUND

A news article published on July 20, 2016, attributed to a New Hampshire legislator, Alfred P. Baldasaro, the following statement: "Hillary Clinton should be put in the firing line and shot for Treason." Defs.' Statement of Material Facts as to Which There is No Genuine Issue ("Defs.' SMF") ¶ 23 (citing Asawin Suebsaeng, Secret Service Investigating Trump Adviser Al Baldasaro for Hillary Execution Comments , THE DAILY BEAST (July 20, 2016), https://www.thedailybeast.com/secret-service-investigating-trump-adviser-al-baldasaro-for-hillary-execution-comments), ECF No. 18–1.² This statement purportedly urging the shooting of a Democratic presidential candidate prompted the U.S. Secret Service Spokesperson Robert Hoback to give the following statement to the Daily Beast : "The U.S. Secret Service is aware of this matter and will conduct the appropriate investigation." Id. ¶¶ 22–23.

The following week, on July 27, 2016, then-candidate Trump stated: "Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing," and, "I think you will probably be rewarded mightily by our press." FAC ¶ 17. Two weeks later, on August 9, 2016, then-candidate Trump made what the plaintiffs' characterize as an "astonishing statement" that "was a thinly veiled threat on Secretary Clinton's life," Pls.' Opp'n at 1, that "[i]f she gets to pick her judges, nothing you can do, folks," and, "[a]lthough the Second Amendment people—maybe there is, I don't know." FAC ¶ 16. Similarly to the Secret Service's earlier response to the state legislator's statement urging the shooting of the Democratic presidential candidate, the Secret Service responded to Trump's statement on the same day, stating in an official Tweet: "The Secret Service is aware of the comments made earlier this afternoon." Defs.' SMF ¶ 24 (emphasis omitted). By contrast, however, to the Secret Service's earlier response to the New Hampshire legislator's statement, the Secret Service's response to the Trump statement did not indicate that the agency would conduct any investigation.

These provocative statements by the Republican presidential candidate and a state legislator prompted the plaintiffs, on August 18, 2016, to submit, by separate emails, two FOIA requests to the FBI and two FOIA requests to the Secret Service. FAC ¶¶ 23–25, 30–32; Defs.' SMF ¶¶ 1–2, 22, 24. The plaintiffs explain that "[b]ecause these statements could be viewed as illegal incitement, they would likely have at least piqued the interest of federal law enforcement agencies if made by an ordinary citizen," and the FOIA requests were intended to obtain records regarding how "federal law enforcement agencies react to such statements from a major political party's candidate for President" and "convey their response or lack thereof to the public." Pls.' Opp'n at 1.

The responses by each agency are described below.

A. FBI'S RESPONSE TO PLAINTIFFS' FOIA REQUESTS

The plaintiffs' FOIA requests to the FBI seek: (1) "disclosure of any and all records, including investigative records, mentioning or referring to Donald J. Trump's statements on 9 August 2016, ‘If she gets to pick her judges, nothing you can do folks,’ and ‘Although the Second Amendment people—maybe there is, I don't know,’ " ("Second Amendment Request"), Defs.' SMF ¶ 1 (quoting Defs.' Mot., Attach. 5, Decl. of David M. Hardy, Section Chief of Records Management Division (FBI), dated July 26, 2017 ("Hardy Decl.") ¶ 5, ECF No. 18–5); and (2) "disclosure of any and all records, including investigative records, mentioning or referring to Donald J. Trump's statement on 27 July 2016, ‘Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing,’ and ‘I think you will probably be rewarded mightily by our press,’ " ("Russia Reward Request"), id. ¶ 2 (quoting Hardy Decl. ¶ 5).³

Relying on FOIA Exemptions 7(A) and 7(E), 5 U.S.C. §§ 552(b)(7)(A) & (E), the FBI, on November 18, 2016, issued Glomar responses, indicating the agency could "neither confirm nor deny the existence of records responsive" to either request. Id. ¶ 3–6 (quoting Hardy Decl. ¶¶ 7–8).⁴ A few months later, however, on March 20, 2017, then-FBI director James Comey publicly acknowledged for the first time in congressional testimony an ongoing FBI counterintelligence investigation into "the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts." Id. ¶ 7 (quoting Hardy Decl. ¶ 9).

In light of the then-FBI Director's confirmation of an investigation, and interpreting the Russia Reward Request as seeking "records from the investigation that Director Comey acknowledged on March 20, 2017," the FBI withdrew "its Glomar response, and is now relying on FOIA Exemption (b)(7)(A) to withhold in full, on a categorical basis, all records responsive to the" Russia Reward Request. Id. ¶ 9 (citing Hardy Decl. ¶ 11). The FBI construed the Russia Reward Request to cover "all records from the relevant investigative files (which are now part of Special Counsel Mueller's Russia investigation)," and therefore "assum[ed] that the universe of responsive records is co-extensive with the contents of the investigative files as they existed on March 20, 2017." Hardy Decl. ¶ 29. The search of the "relevant investigative files" by counsel from the FBI's National Security and Cyber Law Branch "confirmed that all records responsive to Plaintiffs' request" are part of the Special Counsel's investigation, and served as the basis for the FBI's invocation of Exemption 7(A). Id. ¶¶ 30–31.

The FBI's Glomar response to the Second Amendment Request relies on Exemptions 7(A) and 7(E). Defs.' SMF ¶ 4. The FBI explains that Exemption 7(A) is implicated because declaring "the existence or non-existence of any records responsive to the Second Amendment Request" would effectively acknowledge the existence or non-existence of "a pending investigation it has not previously acknowledged, and that, assuming such an investigation existed, ‘acknowledging its existence prematurely could reasonably be expected to hamper and interfere with it.’ " Id. ¶ 12 (quoting Hardy Decl. ¶ 19). Similarly, the FBI invokes Exemption 7(E), explaining that confirming the existence or non-existence of a previously unacknowledged investigation "would expose information about the types of statements, actions, allegations, or threats the FBI deems appropriate to commit (or not commit) investigative resources toward," thereby providing "significant insight into the activities likely to attract (or not attract) the FBI's law enforcement attention," which insight could facilitate circumvention of the law without drawing the FBI's notice. Id. ¶ 13 (quoting Hardy Decl. ¶ 24).

B. SECRET SERVICE'S RESPONSE TO PLAINTIFFS' FOIA REQUESTS

The plaintiffs' FOIA requests to the Secret Service sought records regarding the agency's public statements in response to the statement by the New Hampshire legislator urging the shooting of the Democratic presidential candidate and Trump's "Second Amendment people" statement. FAC ¶¶ 30–32; Defs.' SMF ¶¶ 22, 24. Specifically, the request regarding the New Hampshire legislator urging the shooting of the Democratic presidential candidate, stated that "On 20 July 2016, U.S. Secret Service Spokesperson Robert Hoback gave the following statement to the Daily Beast : ‘The U.S. Secret Service is aware of this matter and will conduct the appropriate investigation,’ " and requested "disclosure of any and all records that mention or refer to the matter," along with "any records compiled as part of any investigation into the referenced matter." Defs.' SMF ¶ 22 (citing Defs.' Mot., Attach. 6, Decl. of Kim E. Campbell, Special Agent in Charge of Secret Service FOIA Division, dated July 12, 2017 ("Campbell Decl.") ¶ 4, ECF No. 18–6). The plaintiffs' other request to the Secret Service stated that "On 9 August 2016, the U.S. Secret Service tweeted the following message: The...