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Trump Tweet About Surveillance Undercuts FBI's Glomar Responses In FOIA Lawsuits

Failures

from the Make-Petitioning-Grievances-Great-Again-Also dept

Fri, Dec 1st 2017 09:22am -

There’s no precedent for the volatility of our current president. That seems to be working out just fine for many, many plaintiffs engaged in lawsuits against the government. Attorney Brad Moss, currently suing the FBI over denied FOIA requests related domestic surveillance of Trump administration personnel, just had a 276-character gift dropped in his lap by the Commander-in-Chief.

The House of Representatives seeks contempt citations(?) against the JusticeDepartment and the FBI for withholding key documents and an FBI witness which could shed light on surveillance of associates of Donald Trump. Big stuff. Deep State. Give this information NOW! @FoxNews

The key here is the contempt citations and “shedding light on surveillance” of Donald Trump’s associates. These are exactly the records Brad Moss is seeking. Moss jumped on the tweet, letting the president know he’d just performed an invaluable, if inadvertent, service on behalf of his clients.

OMG, are you stupid? You just blew apart two different cases your DOJ is defending against me. I’m going to take you apart, Mr. President.

Moss (and Mark Zaid) — representing the Brad Heath (in one case) and Propublica (in the other) — filed complaints when the FBI refused to produce documents pertaining to alleged FISA-approved surveillance (the Heath case) and the Christopher Steele dossier (Propublica case). In support of the FOIA requests, the plaintiffs cited plenty of public comments by officials and representatives, including House Oversight member Devin Nunes, who apparently was troubled that the surveillance apparatus he loves was being used against members of his own party.

The deadline for response came and went in both cases, prompting lawsuits. According to the amended complaint [PDF] filed in the Brad Heath case, the FBI suddenly felt the overwhelming urge to provide a (non) answer when hit with a lawsuit.

Approximately six hours after the initiation of this litigation, the FBI issued a response to the Requesters. In that response, the FBI stated that it could not confirm or deny the existence of responsive records, as doing so would trigger harm to national security interests under Exemptions (b)(1) and (b)(3).

Moss set some sort of FOIA litigation land speed record filing a Notice of Supplemental Information [PDF] based on the still-warm Trump tweet. The filing quotes Trump’s tweet before explaining what the president was apparently referencing.

For context, this tweet by the President appears to be in reference to a news report aired on Fox News this evening. http://video.foxnews.com/v/5662667184001/ ?#sp=show-clips (last accessed November 29, 2017). In the news report, Fox News anchor Bret Baier announces that investigators for the House of Representatives have recommended the issuance of contempt citations against the Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”). The basis for the contempt citations concerns pending subpoenas served upon DOJ and FBI by the House Permanent Select Committee on Intelligence and that seek, among other things, “efforts to corroborate information provided by Mr. Steele” that were memorialized in the Steele Dossier. http://i2.cdn.turner.com/cnn/2017/images/09/06/nunesletter.pdf (last accessed November 29, 2017). In the Fox News report, reporter James Rosen notes the separate issue that allegations from the Steele Dossier were purportedly relied upon in some fashion as the factual justification to secure surveillance warrants targeting associates of President Trump. http://video.foxnews.com/v/5662667184001/?#sp=show-clips (last accessed November 29, 2017)

Trump’s tweet — based on Fox News reports — makes it pretty clear the FBI has some files on surveillance targeting Trump associates. I’m sure DOJ counsel will be filing something shortly contesting Trump’s assertions and/or claiming Trump’s tweets aren’t “official” administration statements. It shouldn’t matter. The tweet and the underlying reports will force the FBI to give up its Glomar and take a side.

The President’s tweet this evening is a rather clear and concrete official acknowledgment of the existence of records responsive to the Plaintiffs’ FOIA requests. The President specifically and definitively stated that the “key documents” he is publicly ordering the FBI and DOJ to release to Congressional investigators “could shed light on surveillance of associates of Donald Trump.” This is more than sufficient to nullify at least in part, as a matter of law, the appropriateness of the Glomar responses categorically invoked by the DOJ in this present case.

This isn’t the first time a Trump tweet has contradicted legal arguments made by his own administration. It certainly won’t be the last. A house divided against itself cannot stand, but it does make for entertaining litigation.

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Comments on “Trump Tweet About Surveillance Undercuts FBI's Glomar Responses In FOIA Lawsuits”

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71 Comments
Anonymous Coward says:

Probably your assumption wrong: looks like Trump wants it out.

You kids have such utterly wrong premise — that Trump is evil incarnate — that you cannot even consider that he may actually be against Them, the “Deep State”. — He’s only put those exact words into the text there, and yet you ignore them!

I’m not for Trump but harbor a SLIGHT hope that he’s NOT entirely one of “Them”, despite the Goldman-Sachs executives, and/or that some of them are partly sane, don’t want to actually destroy the USA.

We can’t tell how much of what’s attributed to Trump is just (the NYT’s or Techdirt’s) imagination and what’s out of his control, done BY the “Deep State” for him to be blamed.

Anonymous Coward says:

Re: Probably your assumption wrong: looks like Trump wants it out.

The beauty of what President Ice Road Truckers is doing are his vague marketing statements that the rest of the orange chins love to repeat.
“Drain the Swamp,” “MAGA,” “Deep State.” All of these slogans have no meaning but are repeated and repeated so that they can apply to almost anything.

“SEE! He’s draining the swamp!!”
“SEE! Deep State!!”

Roger Strong (profile) says:

Re: Re: Re: Probably your assumption wrong: looks like Trump wants it out.

Trump is nothing like Hitler. There’s no way he could write a book.

And his guide book isn’t "Mein Kampf." It’s Hitler’s collected speeches, "My New Order."

Business Insider:

Ivana Trump told her lawyer Michael Kennedy that from time to time her husband reads a book of Hitler’s collected speeches, My New Order, which he keeps in a cabinet by his bed … Hitler’s speeches, from his earliest days up through the Phony War of 1939, reveal his extraordinary ability as a master propagandist," Marie Brenner wrote.

Someday we’ll look back on this Presidency and laugh. It’ll probably be one of those deep, eerie ones that slowly builds to a blood-curdling maniacal scream… but at least it’ll still be a laugh.

The Wanderer (profile) says:

Re: Re: Re:4 Probably your assumption wrong: looks like Trump wants it out.

As I put it six-plus months ago (and other people posted online, quoting me; I didn’t really have a place to say it at the time):

“Donald Trump’s credibility is so poor at this point that if I heard that he’d announced that the sky was blue, I would literally want to go outside and check.”

That is not in any way an exaggeration, or a misuse of the word “literally”.

FamilyManFirst (profile) says:

Re: Probably your assumption wrong: looks like Trump wants it out.

No, I think you misunderstand. Trump is evil, in that he is completely selfish (the root of all evil, IMHO). However, he is also dumb. He is convinced of several conspiracy-theory notions, including that he and/or his staff were spied upon during his Presidential campaign. That’s what he is referencing here. He saw the Fox News piece, thought to himself, "See? I was right, they were spying on me!" and spat out this tweet.

He had no idea it might impact ongoing litigation, litigation against his own DOJ. It’s possible that he wouldn’t care even if he did know. All Trump cares about is Trump; his DOJ can go hang if they don’t support him and his deranged theories.

Anonymous Coward says:

Re: Re: Probably your assumption wrong: looks like Trump wants it out.

It’s public knowledge that he and his staff were spied upon during the campaign. Every major news source has come out and confirmed Trump’s version of the story. Does the name Susan Rice ring a bell? Not quite sure why you think him being spied upon is a “conspiracy theory”.

Anonymous Coward says:

Re: Re: Re:2 Probably your assumption wrong: looks like Trump wants it out.

and then they were unmasked by someone who doesn’t legally have the authority to do so. The same person then pleaded the 5th.

It’s also fairly obvious that the connection between Trump himself and Russia is exceedingly tenuous at best. This is a tech website, so it’s a little silly that people here haven’t looked into what they actually claim the “hacking” was.

Stephen T. Stone (profile) says:

Re: Re: Re:3 Probably your assumption wrong: looks like Trump wants it out.

It’s also fairly obvious that the connection between Trump himself and Russia is exceedingly tenuous at best.

Judging by reports about Mike Flynn’s plea of guilty of lying to the FBI, his subsequent cooperation with the Mueller investigation, and the substance of his potential on-the-record testimony, you might want to re-think that statement.

Anonymous Coward says:

Re: Re: Re:4 Probably your assumption wrong: looks like Trump wants it out.

You are aware that Comey and Mueller are personal friends, and Comey is on the record stating he behaved the crazy way he did in order to get Mueller appointed special prosecutor right?

Or do you just lack suspicion when people come from 3 letter agencies?

Anonymous Coward says:

Re: Re: Re: Probably your assumption wrong: looks like Trump wants it out.

OF COURSE they were spied on. That’s what happens when you conspire with foreign governments who happen to be enemies of the United States and its allies. That’s what happens when you launder money through that country’s oligarchs. That’s what happens when you actively collaborate with that country to influence an election. That’s what happens when you have a long, sleazy history involving underage girls and a cooperative business venture with a RIS cut-out.

So yeah, they were spied on. Big-time.

And “spied on” doesn’t just mean “by US agencies”. All of the Five Eyes have SIGINT on them because they have skin in the game as well. They’re sharing that with the US, because they would expect the US to share with them if one of their potential leaders turned out to be Putin’s obedient servant. (You do know this about Trump, right? He has criticized every world leader but one: Putin. It’s laughably obvious to everyone but the pathetic Trumpkins who are too blinded by worship of the Bloated Orange Swampdonkey to notice.)

(Speaking of bloated fat disgusting blobs, did you know he’s up to 345lbs? He’s been rage-eating junk food. I’m waiting for him to do a Mr. Creosote live on national television.)

You can whine about it all you want, but that’s what our intelligence are supposed to do: find out what our adversaries are doing. An easy way for any politician or political candidate to avoid being caught up in that is DON’T CONSPIRE WITH OUR ENEMIES. That’s why none of our intelligence agencies spied on Obama or Romney or Bush or McCain or Clinton: there was no need to.

Anonymous Anonymous Coward (profile) says:

Re: Probably your assumption wrong: looks like Trump wants it out.

To some degree I do think the ‘Star Chamber’ exists. However, I do not believe Trump is a member. I believe that when when someone nominated him due to his wealth, the others laughed him down citing his television shows, bad business deals, and general moral and intellectual incompetence. Admission denied.

Anonymous Coward says:

I wonder how exactly Trump’s tweets would be legally categorized — as an official government document or just some dude shit-posting on his spare time and during coffee breaks.

I’m inclined to believe the latter, since Trump uses his years-old personal account rather than the official White House media accounts previously used by former presidents.

Anonymous Coward says:

Re: Re: Re:

Trump is of course the first Twittering president, but let’s not forget that the Bushes, Clintons, and Obamas all used private, non-government-owned email services (including Hillary’s basement server) and these emails were not considered government property, even (apparently) when official and semi-official business was conducted over them (FOIA exemption may have been the main reason that privately-owned email services were used).

Of course, the fact that emails are private communications while Twitter is public would also have to be considered in trying to classify Trump’s Tweets.

But even if Trump’s Twittering is considered official communication from the Office of the President, then what are we to make of these “re-tweets” that have everyone in an uproar? Are we to consider it an official de facto endorsement of the original person’s ideas, or could it be more along the lines of pointing out someone’s obvious stupidity or carelessness, in much the same way that a person’s online spelling and grammer errors can be repeated (and silently laughed at) by others without additional comment?

Stephen T. Stone (profile) says:

Re: Re: Re: Re:

Are we to consider it an official de facto endorsement of the original person’s ideas

Given Trump’s generalizing statements about “radical Islamic terrorism”; his plans to curb travel and immigration of people from majority-Muslim countries, which were based near-specifically on the fact that those countries are majority-Muslim; his willingness to lie about having seen Muslims celebrating in the streets after the September 11th attacks; his willingness to denigrate a Gold Star Family because they were Muslim; and all the other racist bullshit he has said about Muslims and people from the Middle East—on top of all his other racist rhetoric and actions—I would say yes, we can and should consider his sharing a trio of ultra-right-wing videos meant to incite anti-Muslim hatred as a presidential endorsement of the views of those British White nationalists.

Anonymous Coward says:

Re: Re: Re:2 Re:

hey for once I agree with you…

Now I bet you don’t have the same logical standards for the hate spewing that the left, democratic party, and antifa does do you?

It’s just one big circle jerk of haters calling each other a bunch of haters. You are all despicable humans trying to oppress other humans because “your reasons”.

Nothing is truly new under the sun!

jupiterkansas (profile) says:

Re: Re: Re:3 Re:

I don’t care what Trump spews when he’s not president, but when he’s president, everything he says matter. If a Democrat or anyone else were put in his place, then yes, I’d hold them to the same standards. I don’t know of any president that has publicly spewed as much hate, insults, and juvenile comments as Trump has in the last year.

There’s no shrugging it off and saying “it’s just his personal account” or “other people do it too.” He’s the goddamn president!

Anonymous Coward says:

Re: Re:

as an official government document

The courts have consistently held them as relevant, with respect to policy.

You might want to google "trump tweets" along with "transgender military ban," "travel ban," "CNN AT&T Merger," and most recently "fucks up 2 DOJ cases."

This isn’t a senile old fucktard just blabbering.

It’s a senile old fucktard who happens to be president blabbering.

Anonymous Coward says:

Re: Re:

First, they are in fact official communications of the President of the United States, and thus fall under all applicable statutes and regulations.

Second, every intelligence agency on the planet, ESPECIALLY the ones that belong to adversarial governments, absolutely love his tweets. Why?

1. They indicate when he’s awake.
2. They indicate what he’s watching on TV.
3. They show what he’s thinking about.
4. They betray his vanity, his pride, his conceit, his arrogance, etc. — every one of which is a trait to be exploited.
5. They include metadata. Happy, wonderful, valuable metadata.
6. And so on. Even the typos have some value.

There are, no doubt, analysts whose sole job is to dissect every single one of his tweets and prepare reports on his state of mind and his likely next course of action. Why wouldn’t there be? He’s handing over reams of valuable, actionable data on a daily basis, only a fool would ignore it.

By the way, there is also no doubt that Mueller’s team is analyzing them all too. Trump has already publicly confessed to several crimes (that we know about) and my guess is that there are more that we may find out about in due course.

Anonymous Coward says:

Re: Re: Re: Re:

Sexual assault is not a crime?
Last I heard it was, what has changed?

Now whether the AG/DA has the balls to prosecute is another story. Perhaps one of them will recognize their personal responsibility and actually perform the job that they signed up for. But based upon their past, I assume they will not.

Anonymous Coward says:

Re: Re: Re: Re:

“Pussy grabbing” is sexual assault is a crime.

In case you weren’t paying attention, he’s publicly confessed to obstruction of justice multiple times, most recently on Saturday. Part of this is a result of his dementia, part of this is a result of his obvious insanity, but at lot of it is the result of his arrogance: he truly believes he’s above the law. And unfortunately his enablers, including the sycophants in Congress, aren’t calling him on it.

Anonymous Coward says:

Re: Re: Re: Re:

now here is someone that has their head on straight.

Based on discussions with my friends who vote R see how bad Trump is for the party more-so than Dems, but the Dems don’t understand that their politicians are viewed as even worse.

Just about everyone I know that voted for Trump did it while holding their nose. THAT is how nasty the democrats are… people would rather have Trump than the likes of Hillary and the concept is just lost on them.

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