Trump, Nunes Accidentally Undo DOJ's Efforts To Keep Surveillance Docs Under Wraps

from the helluva-an-effort-there,-Trumpy dept

The government's antipathy towards FOIA requesters is well-documented. Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers. The Trump Administration has made no such promises. Good thing, too, as the uncontrollable mouth running the country would make these promises impossible to keep. We're living in a halcyon era of unprecedented, if inadvertent, government transparency. Whatever multitudinous leakers won't provide, the president will hand over himself via Twitter or televised interviews.

Late last year, Trump handed plaintiffs in two FOIA lawsuits a gift when he undercut an FBI Glomar response ("neither confirm nor deny") by confirming FBI investigations (and FISA court involvement) in domestic surveillance. Trump has done it again, thanks to approving the release of the Nunes memo. Again, FOIA requesters seeking information about FBI domestic surveillance have been handed a gift by the Commander in Chief, as Politico reports.

During a hearing on a bid by BuzzFeed to get more information about how a so-called dossier compiled by a former British spy was handled, U.S. District Court Judge Amit Mehta grew frustrated with a Justice Department lawyer who argued that Trump’s declassification order did not alter the contours of the legal dispute.

Mehta said the government would normally be entitled to deference in asserting the need to keep its investigative work under wraps, but perhaps no longer with respect to the dossier.

“This isn’t the ordinary case,” Mehta told a Justice Department lawyer, Anjali Motgi. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation. That’s going to be a hard sell given what the president has done. … This is a new frontier and it has an impact.”

The DOJ tried to argue that Trump's declassification of the memo wasn't an endorsement of its contents. The judge found this assertion literally incredible, saying she found it impossible to believe the DOJ and the White House disagreed about the factual basis of the released memo. If the DOJ can't find a way to push this argument past the judge, Buzzfeed will likely gain access to documents it might need to defend itself from a libel lawsuit brought by someone mentioned in the Steele dossier. If nothing else, the declassification of the memo shows there's substantial public interest in the contents of the dossier, which would buttress Buzzfeed's claims that publishing it (without verifying the contents first) was "fair reporting" on government activities.

The DOJ, however, continues to insist the sought documents, even if released, change nothing for Buzzfeed. But to make this argument it has to sell its first argument -- that the facts disclosed by the Nunes memo are not actually facts. The DOJ will get to make this argument in person, behind closed doors with the judge, where it will argue that releasing documents to Buzzfeed would harm its ongoing investigation.

On top of this turn of events, the Nunes memo's release has also forced the DOJ to change its opacity stance in other FOIA lawsuits.

In one of those FOIA cases on Wednesday, government lawyers notified the court that the president’s declassification actions forced them to withdraw a refuse-to-confirm-or-deny response issued on requests that USA Today reporter Brad Heath and the pro-transparency James Madison Project made for surveillance warrants on Trump associates.

The DOJ may end up having to release documents it doesn't want to release, thanks to the president and legislators aligned with Nunes. All it can do right now is buy time. And it will be an indefinite amount of time, apparently.

“Given recent events, and the possibility of additional declassifications by the president,” the lawyers wrote, “the government is unable at this time to propose a timetable to conduct this review.”

The Forever War on Transparency continues, but it's being frustrated by self-serving acts of openness by the White House. I guess we're the beneficiaries of accidental largesse, although it may be outweighed by other damaging White House acts and policies. However, someone writing about issues like these should never wish to live in uninteresting times, so the remainder of the Trump presidency should provide plenty of transparency yin/yang moments like these, where the government's natural affinity for opacity is undone by the Commander in Chief's proclivity for outing company secrets whenever it seems it might serve his singular narrative.


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  • identicon
    Baron von Robber, 21 Feb 2018 @ 10:58am

    Trump is doing great at playing chess.
    "King me!"

    reply to this | link to this | view in chronology ]

  • icon
    dcfusor (profile), 21 Feb 2018 @ 11:19am

    Don't worry, DOJ is still resisting plenty of FOIA requests on their illegal activities (many are admitted, just the details are missing).
    Partisanship is the wrong approach here. No political party is representing the interests of the citizens at this point.
    Now, if you're big pharma, the military industrial complex, a big social media outfit...and have plenty of lobby money, you get the best government money can buy - and they are ALL for sale.
    I can't really tell much difference between a clownish buffon and a more subtle murdering felon in re how they affect my life. They both want to bomb brown people, they both want big corps to get all the money, neither want my freedom, just their power and riches. All get rich in public service on fairly low paychecks. How is even an obviously dumb congressperson living in a 5 million dollar house, Maxine? This is not a party-line thing, they are for someone besides us - who they think of as cattle to be farmed.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Feb 2018 @ 1:33pm

      Re: partisanship

      "Partisanship is the wrong approach here. No political party is representing the interests of the citizens at this point."

      true

      ---

      "where the government's natural affinity for opacity is undone by the Commander in Chief's proclivity for outing company secrets..." TD


      Trump's bull-in-a-china-shop approach is, unfortunately, needed to shake out the many crooks infesting DOJ and the rest of the Potomac federal swamp.

      Elections mean something. Trump is the top boss of the entire federal executive branch, including everybody in DOJ/FBI/CIA/NSA. Trump calls the shots under American law -- he's not some outside provocateur disrupting the sacred bureaucratic procedures & secrets of DOJ. Trump is THE Boss.

      Trump is also the ultimate US executive authority for determining what is classified and what is not or no longer classified. A US President can declassify whatever he wants, whenever he wants .... formally or informally. "Company Secrets" are whatever Trump decides they are or are not.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 21 Feb 2018 @ 2:18pm

        Re: Re: partisanship

        Trump's bull-in-a-china-shop approach is, unfortunately, needed to shake out the many crooks infesting DOJ

        Which he defines as "anyone doing their actual job and investigating the Trump Team's Russian ties, bank fraud, etc."

        and the rest of the Potomac federal swamp.

        You mean there's still some swamp that he didn't drain INTO the White House?

        A US President can declassify whatever he wants, whenever he wants...

        That's mostly true according to Politifact. There were a couple caveats when Trump revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting:

        In this case, it appears Trump didn’t actually use his declassification power before talking to the Russian officials, and just because Trump’s actions were legal doesn’t necessarily mean they were wise.

        Of course Trump has a different standard to go by:

        "When the president does it, that means that it is not illegal" - Richard Nixon

        reply to this | link to this | view in chronology ]

        • icon
          The Wanderer (profile), 22 Feb 2018 @ 5:15am

          Re: Re: Re: partisanship

          What are you thinking is being referred to when "the swamp" is mentioned?

          A lot of people seem to think it's talking about lobbying, monied influence, and so forth, but I don't think that's what it's meant to refer to at all.

          I think it's meant to refer to what is also called the "deep state": the entrenched career government officials who persist in their positions across administrations, are not accountable to the electorate, and - by way of those positions - thwart the attempts of those who do get elected (and thus *are (presumed to be) accountable to the electorate) to do anything those entrenched officials don't want done.

          A. K. A. the experienced people who actually know how government operates and have the skills and institutional knowledge to actually get things done.

          Talking about draining that type of "swamp" "into the White House" wouldn't really seem to make any sense.

          Trump and his appointees do seem to have been doing a fairly decent job of cleaning a lot of those people out, and I suspect that that - even more than his changes to regulations and his stacking of the federal bench and so forth - will be the part of the damage done by his administration that's going to be the hardest, and take the longest, to reverse.

          reply to this | link to this | view in chronology ]

          • identicon
            Wendy Cockcroft, 22 Feb 2018 @ 5:59am

            Re: Re: Re: Re: partisanship

            Trump's bull-in-a-china-shop approach is, unfortunately, needed to shake out the many crooks infesting DOJ and the rest of the Potomac federal swamp.

            Ermmmm... Trump is staffing it with his own, vastly unqualified people.

            Elections mean something. Trump is the top boss of the entire federal executive branch, including everybody in DOJ/FBI/CIA/NSA.

            Eh, the Constitution disagrees. There's supposed to be a separation between the judicial, the executive, and the legislative branches. That Trump is merging them is unconstitutional.

            Trump calls the shots under American law -- he's not some outside provocateur disrupting the sacred bureaucratic procedures & secrets of DOJ. Trump is THE Boss.

            I seem to remember the Right absolutely flipping the hell out over Obama's pen and phone and "acting like a king." but when the Orange One does it... crickets.

            reply to this | link to this | view in chronology ]

            • icon
              The Wanderer (profile), 22 Feb 2018 @ 6:07am

              Re: Re: Re: Re: Re: partisanship

              Eh, the Constitution disagrees. There's supposed to be a separation between the judicial, the executive, and the legislative branches. That Trump is merging them is unconstitutional.

              I think the argument is that the DOJ, FBI, CIA, and NSA are all parts of the executive branch, so the Constitution's separation-of-powers-between-branches division doesn't come into play.

              If there are places where Trump has been trying to blur the lines between the branches of government (as opposed to the branches of the executive branch) in any meaningful way, I'm fairly sure I haven't heard about it.

              reply to this | link to this | view in chronology ]

              • identicon
                Wendy Cockcroft, 22 Feb 2018 @ 7:12am

                Re: Re: Re: Re: Re: Re: partisanship

                Okay... I'm not American, but... isn't the DOJ part of the judicial branch or am I wrong?

                reply to this | link to this | view in chronology ]

                • icon
                  The Wanderer (profile), 22 Feb 2018 @ 8:40am

                  Re: Re: Re: Re: Re: Re: Re: partisanship

                  Nope. Like every other Cabinet department, it's part of the executive branch.

                  The only parts of the judicial branch that I'm aware of are the actual courts - the forums where cases (criminal and otherwise) are filed under the law, and the people who staff them, and most particularly the judges who rule on those cases. (And I think the juries which serve as finders of fact, when applicable.)

                  With possible limited exceptions (e.g. bailiffs), those who investigate and enforce the law are separate from the courts which judge the law.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Baron von Robber, 22 Feb 2018 @ 11:38am

                    Re: Re: Re: Re: Re: Re: Re: Re: partisanship

                    Yea, it's silly to think the Department of Justice is part of the judicial branch.

                    reply to this | link to this | view in chronology ]

            • identicon
              Joe Dirt, 22 Feb 2018 @ 9:36am

              Re: Re: Re: Re: Re: partisanship

              "Ermmmm... Trump is staffing it with his own, vastly unqualified people."

              In times of rapid change, experience could be your worst enemy. Jean Paul Getty

              reply to this | link to this | view in chronology ]

              • identicon
                Wendy Cockcroft, 23 Feb 2018 @ 2:24am

                Re: Re: Re: Re: Re: Re: partisanship

                That is not a good enough reason to put ignorant people in charge of anything.

                reply to this | link to this | view in chronology ]

                • identicon
                  Joe Dirt, 23 Feb 2018 @ 12:14pm

                  Re: Re: Re: Re: Re: Re: Re: partisanship

                  You are trying to conflate ignorance with inexperience. 2 VERY different things.
                  How much experience di Obama have when he first became POTUS?
                  How much experience does ANY new president have?

                  I think you should stop trying to claim ignorance as the culprit just because you disagree with the direction or policies being implemented.

                  Disliking a policy or process should automatically equate to disliking the person, right? Unless you are a complete tool and have no understanding of how to be an adult, that is.

                  On a side note, if you have ever worked in Corporate America, you should know how stupidly inaccurate your statement really is. EVERYONE in charge is either ignorant, or at the very least, incapable of doing the job of those they manage. It's kind of the way things are. Why would you expect the largest employer in the nation to be any different?

                  reply to this | link to this | view in chronology ]

                  • icon
                    PaulT (profile), 24 Feb 2018 @ 1:15am

                    Re: Re: Re: Re: Re: Re: Re: Re: partisanship

                    "How much experience di Obama have when he first became POTUS?"

                    Lots. He didn't have direct presidential experience, of course, but he had plenty of experience in many areas that were directly relevant to the role.

                    Whereas Trump largely had experience with selling himself as a brand name. He left behind trails of bankrupt businesses, screwed contractors and suspect business connections to become president.

                    "I think you should stop trying to claim ignorance as the culprit just because you disagree with the direction or policies being implemented."

                    ink that she, like most non-Americans are conflating Trump's ignorance as ignorance. He displays no intellectual curiosity, gets many basic facts wrong about his own role, has no sense of diplomacy and regularly surprises his own staff with claims made on Twitter at 4am. If he's not ignorant, he should win an Oscar for his performance as such.

                    "EVERYONE in charge is either ignorant, or at the very least, incapable of doing the job of those they manage. It's kind of the way things are"

                    What's sad is people who are apparently happy with that being the way they are and accept the carnage that their ignorant decisions have on the general populace.

                    reply to this | link to this | view in chronology ]

          • icon
            Roger Strong (profile), 22 Feb 2018 @ 7:33am

            Re: Re: Re: Re: partisanship

            A lot of people seem to think it's talking about lobbying, monied influence, and so forth, but I don't think that's what it's meant to refer to at all.

            That IS however the definition that Trump used all through the campaign. You know, like when he endlessly demonized Hillary for giving paid speeches to Goldman Sachs.

            Once elected, his appointees from the ranks of Goldman Sachs executives included Steven T. Mnuchin as treasury secretary, Gary Cohn as director of the National Economic Council, Dina Powell as White House adviser and deputy national security adviser, Anthony Scaramucci as White House communications director, Jim Donovan in the No. 2 position at the Treasury Department, and of course Stephen K. Bannon as chief White House strategist and national security adviser.

            That's not counting executives from Exxon and elsewhere.

            I think it's meant to refer to what is also called the "deep state"

            That definition came only after it was obvious to anyone more intelligent than a goldfish that he broke his "Drain the Swamp" promise. Only after he found out that the DoJ and FBI would still continue to do their jobs and that he didn't have dictatorial power to stop them.

            Fortunately for Trump, his followers also have the memory retention of goldfish.

            reply to this | link to this | view in chronology ]

            • icon
              The Wanderer (profile), 22 Feb 2018 @ 8:44am

              Re: Re: Re: Re: Re: partisanship

              Do you have any references for specific Trump statements from the campaign which make it unambiguously clear that "drain the swamp" was talking about lobbying and monied interests and so forth?

              I wasn't paying close enough attention to his speeches back then that I'd have a hard time believing I'd missed something, but in looking back on what I do remember, I haven't been able to dredge up any comments involving that phrase which would contradict the idea that the "deep state" is pretty-much always what was being meant. (With perhaps an attempt to mislead the uninitiated into thinking that he might mean those other things.)

              If there is sufficiently-clear evidence to contradict that idea, I'd be glad to be corrected on the subject.

              reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 21 Feb 2018 @ 12:08pm

    she found it impossible to believe the DOJ and the White House disagreed about the factual basis of the released memo.

    I have to disagree with Ms. Judge here. Considering the adversarial relationship this WH has both with the DOJ (or at least some elements of it), as well as with the very concept of "facts"... I don't find that the least bit difficult to believe.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Feb 2018 @ 2:14pm

      Re:

      ...facts and opinions are often difficult to sort out. Disagreements are commonplace within organizations.
      If you have a strong disagreement with your boss -- who ultimately decides the issue?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Feb 2018 @ 5:51am

        Re: Re:

        "Trump's declassification of the memo wasn't an endorsement of its contents"
        If you don't believe this, does it mean that they should strive to be hypocrites and prevent the release of the democrats counter-memo, if releasing a memo means endorsment ?

        reply to this | link to this | view in chronology ]

  • identicon
    Jason, 21 Feb 2018 @ 12:34pm

    If Obama was playing 3 dimensional chess, Trump is obviously playing one dimensional chess.

    reply to this | link to this | view in chronology ]

  • identicon
    Will B., 21 Feb 2018 @ 2:08pm

    Mike the Shiiiiilllllllllllll

    "Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers."

    I bet you'd never criticize Obama for this, liberal shill!

    ...oh, wait.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2018 @ 4:38pm

    Is it Mueller Time yet?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2018 @ 4:56pm

    Sure is quiet around here. All the ruskie trolls must be in panic mode trying to figure out how to unfuck themselves on Twitter.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2018 @ 6:31pm

    Forget classified. You can get classified FOIA stuff in a mere decade.

    The government should just copyright the information. It would be life plus seventy years before anything could be released.

    reply to this | link to this | view in chronology ]


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