Trump’s Lawyers: FOIA Ignorance Edition

  • January 24, 2024
  • 0

Patrick G. Eddington

Do the lawyers representing former President Donald Trump in his classified documents abscondment case actually understand the Freedom of Information Act (FOIA) law, which they’ve used to try to circumvent the usual discovery process in a criminal trial? Their most recent filing on his behalf suggests the answer is “no.”

On January 16, Trump attorneys Todd Blanche and Christopher M. Kise filed a 68‐​page motion on Trump’s behalf repeating and expanding upon past claims that Special Counsel Jack Smith has not turned over all documents Trump has requested pursuant to the government’s discovery obligations. As the New York Times’ Alan Feuer observed:

While the 68‐​page filing was formally a request by Mr. Trump’s lawyers to the office of the special counsel, Jack Smith, to provide them with reams of additional information that they believe can help them fight the charges, it often read more like a list of political talking points than a brief of legal arguments.

I won’t subject you to the laundry list of political grievances and claims in the document, most of which you’ve likely heard before and come with no documentary evidence to substantiate them. What I do think is noteworthy is this claim by Blanche and Kise, which can be found on pages 4–5 of the motion:

New evidence, obtained via requests pursuant to the Freedom of Information Act (“FOIA”), reveals that politically motivated operatives in the Biden Administration and the National Archives and Records Administration (“NARA”) began this crusade against President Trump in 2021. There are 22 FOIA releases from DOJ and NARA attached as exhibits to this brief. Nearly all of these exhibits, though heavily redacted based on FOIA rules that have no application in a criminal case, represent discovery violations in which the Special Counsel’s Office failed to produce documents that support arguments and positions the defense has articulated since at least October 2023.

What caught my eye was the claim that “FOIA rules…have no application in a criminal case.…”

That’s a demonstrable, egregious, and easily discoverable falsehood.

For decades, the FOIA has had nine specific exemptions that federal agencies or departments can employ to withhold information from public release. The FOIA b7‐​series of exemptions includes one–b7A–that allows the executive branch to withhold “records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information … could reasonably be expected to interfere with enforcement proceedings.”

In a 2018 FOIA case involving memos written by then‐​FBI Director James Comey that were sought by the Cable News Network (CNN), Judge James Boasberg upheld the FBI’s invocation of FOIA exemption b7A.

“In an ongoing criminal investigation such as the Special Counsel’s,” Boasberg wrote, “the Government must be somewhat obscure in its public filings about the effect of disclosure so as not to risk spilling the very information it seeks to keep secure.”

Indeed, federal courts have routinely upheld such b7A invocations by the FBI or other federal law enforcement entities in FOIA cases. Cato has received such FBI responses on numerous occasions and even has appealed some. Trump’s lawyers did not disclose whether they appealed those b7A redactions to DOJ’s Office of Information Policy, as is their right under FOIA.

I’m not unsympathetic to good faith arguments that federal FOIA offices frequently try to game the system to the detriment of requesters. Federal agencies and departments have been fighting the FOIA since it was first enacted during the Johnson administration. Its sponsor, the late Rep. John Moss (D‑CA) spent more than a decade before the law’s enactment in 1966 trying to pry even basic information out of the Defense Department and other executive branch components, which is why he authored the FOIA.

Agency and department recalcitrance in honoring FOIA requests is one reason why the law has been updated repeatedly since 1966 to try to stamp out or otherwise discourage agency or department gamesmanship of the statute.

I’ve encountered plenty of that kind of behavior in my own FOIA work here at Cato, including from the FBI. Indeed, most of Cato’s 30+ FOIA lawsuits since 2017 have been against the FBI for trying to hide from public disclosure evidence of questionable surveillance or other misconduct by FBI agents, among other things.

But Trump’s bloviations on Truth Social or other social media or press outlets about an alleged bias or conspiracy against him, or those of his lawyers in the aforementioned motion, do not count as evidence of bad faith by the FBI or the Department of Justice in this particular FOIA case. Trump’s lawyers provided no whistleblower allegations to that effect in their motion either.

One thing is very clear to me. Trump is not being well served by lawyers who either don’t understand the FOIA statute and its associated case law or are choosing to ignore it.