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Case Name James Madison Project v. U.S. Department of Justice NS-DC-0146
Docket / Court 1:17-cv-00597 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Case Summary
This case is part of the Civil Rights Litigation Clearinghouse's coverage of the Carter Page Foreign Intelligence Surveillance Act (FISA) warrants. For more information on litigation to disclose the warrants that inspired this case, please see ... read more >
This case is part of the Civil Rights Litigation Clearinghouse's coverage of the Carter Page Foreign Intelligence Surveillance Act (FISA) warrants. For more information on litigation to disclose the warrants that inspired this case, please see this link. For a summary of the warrants and information on ongoing efforts by the Foreign Intelligence Surveillance Court (FISC) to protect the confidential information in them, see this link.
The FISA requires the government to obtain a warrant from the FISC before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On April 4, 2017, the James Madison Project (a Washington, DC-based nonprofit dedicated to promoting public transparency in the intelligence community) and a USA Today national security reporter filed a complaint in the U.S. District Court for the District of Columbia under the Freedom of Information Act (FOIA) (5 U.S.C. § 552), requesting that the Department of Justice (DOJ) release documents from the FISC relating to surveillance on the Trump 2016 campaign and any minimization procedures related to them. The case was assigned to Judge Colleen Kollar-Kotelly. In a separate case, the FISC released an opinion (available in this Clearinghouse under caseNS-DC-0127) emphasizing this case as one that could lead to lawful release of information in the Carter Page FISA warrants.

The plaintiffs, in their complaint in this case, said that the initial FOIA request and ensuing lawsuit were based on a tweet from President Trump's Twitter account on March 4, 2017 accusing the Obama administration of illegally monitoring his campaign. They argued that subsequent statements from President Trump and Press Secretary Sean Spicer constituted prior official disclosure of the surveillance, and the documents should be released. The initial FOIA request sent to the DOJ on March 6, 2017 asked for copies of the orders authorizing surveillance on the Trump campaign, any applications for those orders, and any minimization procedures applied to the orders. The plaintiffs alleged that the Federal Bureau of Investigation (FBI) had not provided any responsive documents at the time of filing the complaint.

The plaintiffs filed an amended complaint on March 15, 2017, saying that six hours after they filed the initial complaint, the FBI filed a response (known as a Glomar response) to their initial FOIA request saying it could not confirm or deny the existence of the FISC documents. The plaintiffs noted that since this response was received after they filed the complaint in District Court, they were exempt from exhausting administrative remedies and could proceed with the litigation. The new complaint added an extra count against the DOJ National Security Division, alleging that the plaintiffs had exhausted all administrative avenues to get the requested documents through the DOJ without success and therefore could add the DOJ National Security Division to this complaint as a defendant.

The DOJ filed a motion for summary judgment on July 14, 2017. The government alleged that the Glomar response was proper under the following exceptions to FOIA: the national security exception (1), the exception to protect sources in an ongoing intelligence investigation as required by the National Security Act (3), the exception to information collected as part of an ongoing investigation (7a), and the exception for information that would reveal law enforcement techniques (7e). The DOJ added that it had properly filed national security disclosures describing why the requested information had to be protected in line with exception 1's requirements. The DOJ also argued that the President's broad statements related to some form of surveillance were not an official acknowledgement of the requested records, since the tweets and press statements were broad and did not acknowledge a specific investigation.

The plaintiffs filed a cross motion for summary judgment in response to the DOJ's motion on August 18, 2017 contesting the DOJ's characterization of the administration's conduct as not an acknowledgement of an investigation. They provided quotations from the President and Spicer repeating that Trump himself was not the target of surveillance in the 2016 campaign. In addition, they cited a lengthy press statement from Spicer responding to news reports about specific FISA warrants against the campaign; they argued that the response to specific investigations was enough to acknowledge their existence. The plaintiffs also highlighted denials of investigations into President Trump directly from FBI Director James Comey and Director of National Intelligence James Clapper as proof that there was some sort of investigation going on.

The DOJ responded to this motion on September 17, saying that no amount of media speculation or response to media speculation could amount to official disclosure of an investigation. Instead, they alleged that disclosure of an investigation must be officially done. The plaintiffs contested this in a September 29, 2017 response, saying that, if the court applied the DOJ's logic, an intelligence agency could simply protect information about an intelligence by saying it is responding to a media request.

The case was reassigned to Judge Timothy J. Kelly on September 18, 2017. It was randomly reassigned to Judge Amit P. Mehta on November 2.

Judge Mehta allowed the parties to provide supplemental briefs distinguishing or analogizing this case from separate James Madison Project FOIA litigation (James Madison Project v. Dep't of Justice, No. 17-cv-144) decided on January 4, 2018, which said that "political statements" were not official acknowledgements of FISA investigations. In their response brief dated January 17, the DOJ reiterated previous arguments about the breadth of the contested government statements, saying they did not amount to disclosure. The James Madison Project, in its January 22 response, stressed that the White House statements responded to news reports of specific FISA investigations, and the specificity present here made them not like the "political statements" in the previous case.

On February 14, after the release of new information from the House Permanent Select Committee on Intelligence (HPSCI) officially acknowledging FISA investigations into the Trump campaign in January 2018, the DOJ provided a proposed schedule for settlement negotiations, which the plaintiffs accepted two days later. The plaintiffs filed a status report on July 24 asking for renewed briefing, in light of new tweets from the President contesting the legitimacy of redactions of the Carter Page FISA applications released as part of this litigation. Judge Mehta did not grant the request immediately, referring the parties to new rounds of negotiation on August 8. These negotiations fell apart, and Judge Mehta set a new briefing schedule on August 22.

The DOJ's motion for summary judgment, filed on October 19, 2018, recited the same FOIA exceptions as the first motion for summary judgment and added in a 7d exception, saying that disclosing certain information would reveal the identity of confidential sources. The plaintiffs responded on November 9 requesting partial summary judgment. They focused on a September 17, 2018 White House press release that said the President "directed . . . immediate declassification" of the Page FISA warrants and subsequent tweets from the President that read:
I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ [sic] called to ask not to release. Therefore, the Inspector General . . . has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end, I can always declassify if it proves necessary. Speed is very important to me – and everyone!
The plaintiffs argued that this warranted discovery into 21 pages of the Page warrants, since the DOJ apparently promised to release unredacted versions of them in response to a Presidential "order." Even if such a promise did not exist, the plaintiffs argued that discovery was warranted to know if it did exist or not. Finally, the plaintiffs alleged that the President's statement should still impact review of the redactions, and summary judgment in favor of the defense was not warranted.

The DOJ replied to the plaintiffs on November 30, 2018, contesting the plaintiffs' characterization of the tweet and prior press releases as an "order" to disclose the Page FISA warrants, saying that it instead was a statement from the Press Secretary. The defendants denied the existence of any such order and argued that there was no issue of material fact that justified more discovery. The plaintiffs responded on December 20 that this statement from the Twitter account could not be a Press Secretary statement, the tweet was specific enough to allow discovery into this particular FISA warrant, and that the current record was not enough to show that there was no issue of material fact regarding the existence of an order or not.

Judge Mehta released an opinion denying the defendant's motion for summary judgment on July 30, 2019. He stated that, under FOIA, the agency protecting the information has the responsibility to show that the information is protected by a national security exemption (exemption 1) and not disclosed by the government, and that enough ambiguity remains surrounding the President's supposed order to disclose the Page FISA warrants to allow more discovery into the matter. He added that there remains a dispute over whether exemptions 7d and 7e covered this content, since the President's order to declassify the documents might impact the sources and methods in the contested section. 2019 WL 3430728.

The government filed another motion for summary judgment on August 30, 2019, including a statement from DOJ officials saying that they never received a declassification order for the information at issue. They argued that this settled the issue as to whether the press releases and tweets amounted to a declassification order. The plaintiffs submitted a response contesting this claim on September 13.

The release of the FBI Inspector General's "Crossfire Hurricane" report into surveillance of the Trump campaign impacted this case; some of the confidential information requested in this case was released in that report. However, some information still remained classified, and litigation continued. For more information on the Crossfire Hurricane report, see NS-DC-0138 in this Clearinghouse.

Judge Mehta granted the defendant's renewed motion for summary judgment on March 3, 2020. Upon reviewing the declaration from DOJ officials, he found that the lack of direction to declassify the documents at issue meant that the press release and tweets were not official orders, and summary judgment was warranted. 2020 WL 1033301.

The plaintiffs filed a motion to reconsider on March 13, 2020, arguing that, while the issue on the classification of the 21 pages was decided by the new statements from DOJ officials, outstanding questions remained as to the remaining classified pages in the Page FISA warrants, focusing on two other tweets from the President that cast doubt on the redactions in the warrants overall. The plaintiffs did admit that they failed to contest this issue in later motions, and in their response brief on March 26, the defendants argued that the plaintiffs' lack of action on this issue meant they had abandoned it.

Judge Mehta did allow reconsideration of the issue and released an opinion on May 4, 2020. However, he granted the defendant's motion for summary judgment on the issue, because the tweets the plaintiffs highlighted did not reveal any personal knowledge of a declassification order and were just "bad faith assertions" that were not enough to stand up to a motion for summary judgment.

With all contested issues decided, the plaintiffs filed a notice of dismissal on July 31, 2020. The case is now closed.

Ellen Aldin - 12/20/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Required disclosure
Defendant-type
Law-enforcement
General
Confidentiality
Courts
Record-keeping
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) U.S. Department of Justice
Plaintiff Description The James Madison Project (a Washington, DC-based nonprofit dedicated to promoting public transparency in the intelligence community) and a USA Today national security reporter.
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Document/information produced
Source of Relief Litigation
Filed 04/04/2017
Case Closing Year 2020
Case Ongoing No
Case Listing NS-DC-0127 : In re Carter W. Page: A U.S. Person [FISA dockets 16-1182, 17-52, 17-375, 17-679] (FISC)
NS-DC-0126 : FISA Court Matters relating to disclosure of Carter Page surveillance records: Four FISC cases [FISC Misc. 18-01, Misc. 18-02, Misc. 18-03, and Misc. 19-01] (FISC)
NS-DC-0138 : In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC (FISC)
NS-NY-0024 : N.Y. Times Co. v. United States DOJ (S.D.N.Y.)
NS-DC-0131 : Judicial Watch, Inc. v. United States DOJ (D.D.C.)
NS-DC-0143 : Page v. U.S. Department of Justice (D.D.C.)
NS-DC-0144 : Page v. Comey (D.D.C.)
NS-DC-0147 : Judicial Watch, Inc. v. U.S. Department of Justice (D.D.C.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
D.D.C.
12/21/2020
1:17-cv-00597-APM
NS-DC-0146-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.D.C.
04/04/2017
Complaint [ECF# 1]
NS-DC-0146-0015.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
04/15/2017
Complaint [ECF# 5]
NS-DC-0146-0014.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
07/14/2017
Defendant's Motion for Summary Judgment [ECF# 13]
NS-DC-0146-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
08/18/2017
Motion for Summary Judgment [ECF# 18-1]
NS-DC-0146-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
09/15/2017
Defendant's Opposition to Plaintiffs' Motion for Summary Judgment and Reply Memorandum in Support of Defendant's Motion for Summary Judgment [ECF# 22]
NS-DC-0146-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
09/29/2017
Reply in Support of Plaintiffs' Cross-Motion for Summary Judgment [ECF# 23]
NS-DC-0146-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/19/2018
Defendant's Motion for Summary Judgment [ECF# 40]
NS-DC-0146-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
11/09/2018
Plaintiffs' Cross-Motion for Partial Summary Judgment [ECF# 41]
NS-DC-0146-0013.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
11/30/2018
Defendant's Combined Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and Reply in Support of Defendant's Motion for Summary Judgment [ECF# 44 (& 44-1)]
NS-DC-0146-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
07/30/2019
Memorandum Opinion and Order [ECF# 51]
NS-DC-0146-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
08/30/2019
Defendant's Renewed Motion for Summary Judgment [ECF# 52]
NS-DC-0146-0010.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
03/03/2020
Memorandum Opinion [ECF# 62] (2020 WL 1033301)
NS-DC-0146-0016.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
03/13/2020
Plaintiffs' Partial Motion for Reconsideration [ECF# 64]
NS-DC-0146-0009.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
03/26/2020
Defendant's Memorandum in Opposition to Plaintiffs' Motion for Reconsideration [ECF# 65]
NS-DC-0146-0011.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
05/04/2020
Order [ECF# 67]
NS-DC-0146-0012.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
09/13/2020
Plaintiffs' Opposition to Defendant's Renewed Motion for Summary Judgment [ECF# 53]
NS-DC-0146-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Mehta, Amit Priyavadan (D.D.C.) show/hide docs
NS-DC-0146-0007 | NS-DC-0146-0012 | NS-DC-0146-0016 | NS-DC-0146-9000
Plaintiff's Lawyers Moss, Bradley Prescott (District of Columbia) show/hide docs
NS-DC-0146-0002 | NS-DC-0146-0004 | NS-DC-0146-0008 | NS-DC-0146-0009 | NS-DC-0146-0013 | NS-DC-0146-0014 | NS-DC-0146-0015 | NS-DC-0146-9000
Zaid, Mark S. (District of Columbia) show/hide docs
NS-DC-0146-0002 | NS-DC-0146-0004 | NS-DC-0146-0008 | NS-DC-0146-0009 | NS-DC-0146-0013 | NS-DC-0146-0014 | NS-DC-0146-0015
Defendant's Lawyers Powell, Amy E. (District of Columbia) show/hide docs
NS-DC-0146-0001 | NS-DC-0146-0003 | NS-DC-0146-0005 | NS-DC-0146-0006 | NS-DC-0146-0010 | NS-DC-0146-0011 | NS-DC-0146-9000

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