Muddle Freedom of Information suit

Judge: Trump statements muddle Freedom of Information suit for FISA warrants

By JOSH GERSTEIN

President Donald Trump’s order last September to declassify parts of a Foreign Intelligence Surveillance Act warrant and subsequent tweets from Trump that arguably withdrew the earlier directive created enough uncertainty that a lawsuit seeking to force greater disclosure of the records will be allowed to continue, a federal judge ruled Tuesday.

The Justice Department had urged U.S. District Court Judge Amit Mehta to shut down the Freedom of Information Act suit, arguing that all the unreleased parts of the warrant for former Trump adviser Carter Page remain classified.

However, Mehta said a combination of factors combined to create a factual dispute denying the government victory in the case, at least for now. These included a Sept. 17 White House press release that said much of that information was declassified, Trump’s tweets four days later seeming to back away from the decision, and the Justice Department’s failure to adequately account for the statements.

“To support its position, Defendant relies on legal arguments, and not sworn declarations,” Mehta wrote. “Defendant offers no reason to believe that the Press Release inaccurately conveys the President’s ‘directive.‘ Thus, contrary to what Defendant says, it would appear that the President did make ‘his intentions clear . . . to declassify information.’”

Justice Department attorneys said that later tweets from Trump made it “crystal clear” that he had not ordered a declassification, but Mehta also rejected that position.

“The tweet only injects ambiguity as to the President’s intentions. The tweet does not identify the documents to which the President is referring, let alone refer to the Pages, and it leaves unclear whether the President rescinded the directive announced in the Press Release,” wrote Mehta, an appointee of President Barack Obama.

Mehta noted that while Justice Department attorneys presented arguments about what Trump meant, no official signed a factual submission under penalty of perjury detailing what had happened.

“Defendant should have provided some clarification about what instructions the Department of Justice received concerning the ‘declassification’ of the Pages’ contents. But none of the declarations submitted by Defendant even mention the Press Release,” the judge observed.

The Justice Department also argued the same information could be withheld as information from a confidential law enforcement source or as revealing confidential law enforcement techniques. Mehta also turned down those arguments, saying they would have rendered Trump’s initial announcement a nullity because the information would’ve been kept secret regardless. “The court cannot presume that the President’s declassification order was meant to have no practical effect,” the judge wrote.

Mehta gave government lawyers until Aug. 30 to submit a new declaration explaining the events surrounding Trump’s declassification announcement, the later tweets and whether the Justice Department is authorized to use the alternative law enforcement exemptions to withhold the disputed information.

Justice Department spokespeople did not immediately respond to requests for comment on the decision, which came in a FOIA lawsuit filed in 2017 by USA Today legal reporter Brad Heath and a pro-disclosure nonprofit group, the James Madison Project.

The group and its attorneys have also represented POLITICO reporters in FOIA litigation.