Judge Says Trump 'Witch Hunt' Tweets Can't Beat DOJ's Glomar Response On FBI Investigation Documents

from the official-statements-v.-rambling-discourse dept

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)

The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."

One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.

The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]:

Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President’s summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.

In addition to Trump's strange insistence that former FBI Director James Comey told him "three times" he wasn't under investigation (in his letter to Comey informing him he'd been fired), the plaintiffs point to a television interview where Trump reiterated his "three times" claim, and a number of tweets about "witch hunts" issued by the president.

The court notes there's a lack of specificity in Trump's public statements. Trump's claims he was told multiple times he was not under investigation doesn't necessarily indicate the DOJ or FBI hold records containing this information. Trump supposedly received this info from Comey three times in three different personal conversations with the FBI director -- none of which required official documentation.

The tweets are, unfortunately, not very precise either. As the court points out, "rambling" emissions during early morning hours are hardly hard proof the FBI/DOJ have records pertaining to investigations/non-investigations of President Donald Trump. The court makes it pretty clear Trump's tweets should not be read as official statements confirming the existence of anything.

As stated before, an official acknowledgment cannot be based on “public speculation, no matter how widespread.” Here again, plaintiffs admit that President Trump’s exclamations were sparked by information disseminated by the press, rather than government documents, so those tweets cannot constitute an official acknowledgment.

Plaintiffs argue that the problem is cured in this situation because the President’s tweets officially acknowledged the “authenticity” of the leaked questions. That is quite a stretch. The President complains that it was “disgraceful that the questions concerning the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the questions” (emphasis added), the tweet does not confirm or even imply that the published list is accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single article in a rambling set of comments issued at 4:00 in the morning.


The second and third tweets in the series are even further from official acknowledgments than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is vociferously attacking the investigators makes the proposition that he was speaking on their behalf in this instance somewhat dubious.

And so it goes for the rest of the President's public statements, made during interviews with television shows and websites. The statements made are vague and tend not to confirm existence of documents. Most of what the President has said about the investigation the DOJ can neither confirm nor deny has been "impassioned but disjointed." The court says the plaintiffs need far more than imprecise ramblings to prevail and grants the DOJ's motion to dismiss the case.

Precision matters when you're going up against the government in a FOIA case. Interpretations of imprecise statements tends to end up weighing in the favor of non-disclosure, despite the FOIA's statutory presumption of transparency. A public official rambling on about witch hunts at 4 a.m. probably shouldn't be treated as a trustworthy source of inside information -- especially when that official routinely inverts the Glomar by confirming and denying ("I'm not under investigation," "WITCH HUNT!") an investigation exists.

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  • identicon
    ryuugami, 12 Sep 2018 @ 4:36am

    Oh, you know the Presidents of the United States. They ramble, silly things. You don't expect a President's statements to have any weight, do you now? It's not like it's a position of power or anything.

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

    • identicon
      David, 12 Sep 2018 @ 7:08am


      The President's statements most certainly have a lot of weight, just in an alternate universe. You can't use alternate facts as a justification for having gained knowledge about reality.

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

      • identicon
        Anonymous Coward, 12 Sep 2018 @ 9:33am

        Re: Re:

        "You can't use alternate facts "

        Which universe do you live in? And an independent "alternate facts" is about the only thing I see in operation. No matter which side of the isle you claim to be standing on there are more than enough hypocrisies and acolytes to almost start a war. We already have more than enough people calling for physical violence over just words. This means people are not listening... just talking at each other until one of them gets tired of all the talking and now wants to shut the other side up with force.

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

        • identicon
          Anonymous Coward, 12 Sep 2018 @ 10:25am

          Re: Re: Re:

          I think you tried to say that yes indeed politicians can lie and get away with it. I agree, but not all the people are fooled all the time, and lately the number of people being fooled has dropped significantly.

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

  • icon
    wshuff (profile), 12 Sep 2018 @ 4:46am

    From fireside chats to rambling early morning tweets. Making America Great one incoherent comment at a time.

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

  • icon
    hij (profile), 12 Sep 2018 @ 4:51am

    quote of the day

    "Rambling emissions"

    Pretty much sums up a lot of things now days....

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

    • identicon
      Deputy Dickwad, 12 Sep 2018 @ 10:15am

      Re: quote of the day

      Hey man, I know what you mean... ..... ........ ..

      I've had "rambling emissions" all the time, since before I met my wife.

      .. (various periods used, just to be presidential, you know... ... ......)

      AND now? she's complaining that I've got sex partners all over the cuntrouy???

      Evidently it is called a Cuntroy for a reason., I guess.

      Fake News!!

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

  • icon
    JoeCool (profile), 12 Sep 2018 @ 5:43am

    Pretty obvious

    When someone says they can neither confirm nor deny something, it always means it's confirmed.

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

    • icon
      PaulT (profile), 12 Sep 2018 @ 6:23am

      Re: Pretty obvious

      Or, at the very least, that a denial would lead to further questions that they don't wants asked or answered.

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

    • identicon
      David, 12 Sep 2018 @ 7:31am

      Re: Pretty obvious

      Not for an unqualified "someone". For example, when Trump says he can neither confirm or deny something, the most plausible reason is that he lacks the capacity rather than the authority to do so. Because even if he'd understood what you are talking about, he would not likely remember what happened in reality and what is just a product of his imagination.

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

      • identicon
        Anonymous Coward, 12 Sep 2018 @ 10:30am

        Re: Re: Pretty obvious

        "when Trump says he can neither confirm or deny something"

        Huh - I have never heard him say that.

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

  • identicon
    David, 12 Sep 2018 @ 5:58am

    Oh come on.

    We already had cleared up that those Twitter statements were sort-of an official channel.

    And now the courts say that Twitler can post whatever he wants there without consequences? What is this? "Our president is a liar anyway" or "our president is a rambling idiot"?

    Oh. They are pretty explicit, actually. According to them, it's the latter. Does the court have the authority to declare that when there is no official 25th Amendment proceeding?

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

  • This comment has been flagged by the community. Click here to show it
    biraj paul, 12 Sep 2018 @ 6:03am


    Hi, very good article. Thanks for sharing, keep up the good work.

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

  • identicon
    Anonymous Coward, 12 Sep 2018 @ 6:50am

    “All animals are equal, but some animals are more equal than others.”
    - George Orwell

    And they like to let you know about it in the most denigrating ways.

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

  • identicon
    Baron von Robber, 12 Sep 2018 @ 9:29am

    "I'm not under investigation," "WITCH HUNT!"
    Starring Micheal "Alakazam" Flynn
    George "Glinda" Papadopoulos
    Paul "Cassandra" Manafort
    Maria "No witchy name needed" Butina
    and many more!

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

  • identicon
    Anonymous Coward, 12 Sep 2018 @ 9:44am

    Time of day

    Apparently 4:00 am is too early to be coherent. Well what time of day are his ramblings reliable?

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

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