foia appeal: crew: department of justice (doj): regarding tom delay investigation: 11/23/10 - doj...

8/7/2019 FOIA Appeal: CREW: Department of Justice (DOJ): Regarding Tom DeLay Investigation: 11/23/10 - DOJ Appeal

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CREWIcitizens for responsibilityand ethics in washingtonNovember 23,20 10

DirectorOffice of Information PolicyU.S. Department of Justice1425 New York Avenue , NWSuite 11050Washington, D.C. 20530-0001

Re: Freedom ofInformation Act Appeal in Request No. CRM-201000773FDear Sir/Madam:

Citizens for Responsibility and Ethics in Washington ("CREW") hereby appeals therefusal of the Department of Jus tice ("DOJ") to release to CREW any records responsive to ourFreedom ofInformation Act ("FOIA") request ofOctober 19, 2010.

By letter dated and sent by facsimile on October 19,2010, CREW requested any witnessstatements, investigation repo rts, prosecution memoranda, and FBI 302 reports related to DOl ' sinvestigation of former House Majority Leader Tom DeLay. The request includes, but is notlimited to, the FBI's and DOl ' s investigation of relationships between Mr. DeLay and ChristineDeLay, Dani DeLay, Jack Abramoff, Edwin Buckham, Tony Rudy, Michael Scanlon, SusanHirshmann, the Alexander Strategy Group , the National Center for Public Policy Research,eLottery, Inc ., the U.S. Family Network, Americans for a Republican Majo rity PAC("ARMPAC"), Texans for a Republican Majority PAC ("TRMPAC") , and/or theCommonwealth of the Northern Marianas Islands. CREW's request also described some of thesubjects of DOl ' s investigations of these individuals and groups, and their connections to Mr.DeLay. For your convenience, a copy of this request is attached as Exhibit A.

In justifying its request for a public interest fee waiver, CREW explained that therequested records are like ly to contribute to greater public awareness of alleged malfeasance andpossible criminal behavior by the former majority leader of the House of Representatives, and ofthe recently concluded investigation into Mr. DeLay' s activities. As CREW explained, relatedinvestigations resulted in criminal convictions ofMr. Abrarnoff, Mr. Rudy, Mr. Scan lon, formerRep. Bob Ney, and others . While DO] eventually decided not to prosecute Mr. DeLay, hisactivities still may have bee n illegal or violations of the rules of the House of Representatives,and the requested records would shed light on them. CREW further explained these documentswou ld shed light on DOl ' s conduct in conducting the investigation ofMr. DeLay, and DOl ' sapparent decision to close the investigation without bringing charges against Mr. DeLay.

CREW specifically noted its willingness to discuss with DO] the scope of its reques t andwhether it can be narrowed or modified to better enable DO] to process it.

1400EyeStreet, N.w., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.cit izensforethics .


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Office of Information PolicyNovember 23,2010Page 2

Despite the specificity of the request, by letter dated October 22, 2010, Rena Kim, Chiefof the Criminal Division's FOIA/PA Section, advised CREW that the Criminal Divisionconsidered the request "to be broad in scope" and to "not clearly identify the records" CREW isseeking. Ms. Kim requested "clarification regarding the investigation" to which CREW referred,including "the specific time frames covered," CREW's "reference to relationships between Mr.DeLay and the other individuals," and "a further description of the specific information that youare seeking." Ms. Kim also indicated that absent a clarified request, the Criminal Division wouldadministratively close this matter. A copy ofMs. Kim's letter is attached as Exhibit B.

On October 27,2010, I spoke by telephone with Kristin Ellis, the Criminal Division'sFOIA officer assigned to this request. According to Ms. Ellis, the Criminal Division was unclearabout the extent to which CREW seeks records from DOl's investigation into illegal lobbyingactivities by Mr. Abramoff and others that do not specifically mention Mr. DeLay. Ms. Ellis andI discussed the scope of the request and whether CREW could provide clarification of it.

In an effOli to assist DOl's processing of the request, CREW advised DOl by letter datedOctober 27,2010 it was willing to accept, as a first step toward fulfilling the entire request, asubset of the requested records. Specifically, the subset of records CREW said it would acceptinitially are witness statements, investigation reports, prosecution memoranda, and FBI 302reports from DOl's investigation into illegal lobbying activities in which Mr. DeLay is named orotherwise identified. To further assist DOl, CREW said it would accept responsive records fromJanuary 1, 2003 to the present. CREW specified it was not narrowing the scope of the request.Rather, CREW stated it was willing to accept a subset of records responsive to the request as afirst step in DOl's fulfillment of the entire request in stages. A copy of this letter is attached asExhibit C.

In its initial determination, dated November 9, 2010, DOl denied CREW's request in full.DOl acknowledged it had conducted a search and located records potentially responsive to therequest, but withheld all of the records pursuant to Exemption 7(A) of the FOIA. Specifically,DOl asserted the records "related to open and on-going law enforcement proceedings, and thatrelease, at this time, could reasonably be expected to interfere with these proceeding by revealingprematurely the nature and scope of the evidence compiled by the government." A copy of thisletter is attached as Exhibit D.

DOl improperly withheld the requested records. Exemption 7(A) permits thewithholding of "records or information compiled for law enforcement purposes . . . to the extentthat production of such law enforcement records or information . . . could reasonably be expectedto interfere with enforcement proceedings." 5 U.S.c. 552(b)(7)(A). The purpose of Exemption7(A) is ' ' 'to prevent harm to the government's case in court. '" NLRB v. Robbins Tire & RubberCo., 437 U.S. 214, 227 (1978) (internal citation omitted); see also North v. Walsh, 881 F.2d1088, 1097 (D.C. Cir. 1989) (Exemption 7(A) is "designed to block the disclosure of information


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Office of Information PolicyNovember 23,2010Page 3that will genuinely harm the government's case in an enforcement proceeding or impede aninvestigation"). Exemption 7(A) does "not endlessly protect material simply because it was in aninvestigatory file." Robbins Tire & Rubber Co., 437 U.S. at 230. Law enforcement records maybe withheld only where release "is likely to cause some distinct harm." Kay v. FCC, 976 F.Supp. 23, 38 (D.D.C. 1997).

Disclosing the requested records will not interfere with any enforcement proceedingrelated to Mr. DeLay for the simple reason that DOJ has closed its investigation ofMr. DeLay.Mr. DeLay and his attorney, Richard Cullen, repeatedly have acknowledged to the news mediaand the public that DOJ notified them in August that it had concluded its investigation ofMr.DeLay and would not bring charges against him. See, e.g., Josh Gerstein & Mike Allen, DeLay'knew this day would corne,' Politico, Aug. 16,2010 (Mr. Cullen "said a prosecutor from[DOl's] Public Integrity Section phone him with the news last week and said he was free to makeit public") (attached as Exhibit E); Juan A. Lozano, Ex-Rep. Torn DeLay unsurprised after DOJends probe, Assoc. Press, Aug. 16, 2010 (Mr. Cullen said DOl's Office of Public Integrity"informed DeLay's legal team last week that it was ending its investigation of his ties toAbramoff') (at tached as Exhibit F). No harm can corne to DOl's case against Mr. DeLay incourt because there will be no case against Mr. DeLay.

To the extent DOJ is contending disclosure of the requested records could interfere withother enforcement proceedings, DOl's investigations and prosecutions ofMr. DeLay's associatesalso have concluded. Mr. Cullen publicly confirmed DOJ closed its investigation of ChristineDeLay, Mr. DeLay's wife. See R. Jeffrey Smith, Justice Department drops investigation ofDeLay ties to Abramoff, Wash. Post, Aug. 16,2010 (attached as Exhibit G). Mr. DeLay's formerchief of staff, Edwin Buckham, also has been "cleared by the Justice Department," according tonews reports. ld. There is no indications DOJ is continuing any enforcement proceedingsagainst Mr. DeLay's daughter Dani or former aide Susan Hirshmann, Accordingly, disclosure ofthe requested records could not interfere with proceedings against these individuals.

Two other former aides to Mr. DeLay, Michael Scanlon and Tony Rudy, pleaded guilty tovarious charges in 2005 and 2006, respectively, and both await sentencing. See Pete Yost & BenNuckols, US courthouse still busy with Abramoff scandal, Assoc. Press, Oct. 23, 2010 (attachedas Exhibit H). Although these cases technically remain open, the proceedings with whichdisclosure of the requested records potentially could interfere have been concluded, and Mr.Scanlon and Mr. Rudy have waived their right to appeal their sentences. Nor is disclosure of therequested records foreclosed simply because their cases remain open. Banks v. Dep 't ofJustice,700 F. Supp. 2d 9,18 (D.D.C. 2010) ("The mere fact that the underlying investigation remainsopen is not a sufficient basis for withholding the entire case file; such a decision is justified onlyon a showing that the release of each category of documents could reasonably be expected tointerfere with enforcement proceedings."). Disclosure of the requested records therefore shouldnot cause harm to any remaining proceedings against Mr. Rudy and Mr. Scanlon.


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In addition, nearly all of the proceedings in DO]' s broader investigation of illegallobbying activities - most ofwhich do not appear to relate to Mr. DeLay at all - have concluded.Mr. Abramoffpleaded guilty to conspiracy charges in January 2006 and has served most of hissentence. See U.S. Ends Six-Year Probe of Ex-Majority Leader DeLay, Congressional QuarterlyWeekly, Sept. 4, 2010 (attached as Exhibit I). Former Rep. Bob Ney pleaded guilty to acceptingbribes from Mr. Abramoff, and has completed his sentence. See People caught up in theAbramoff corruption probe, Assoc. Press, Nov. 22, 2010 (attached as Exhibit J). Sixteen othershave been convicted of crimes. ld. DOJ has dropped other investigations, including itsinvestigation of former Rep. John Doolittle. See Erica Werner, Ex-congressman: DOJ has closedcase against him, Assoc. Press, June 11,2010 (attached as Exhibit K). Only one furtherdefendant, an aide to former Sen. Don Young whose actions have no apparent relationship to Mr.DeLay, currently faces trial. See Spencer S. Hsu, Ring guilty on five counts in Abramoff briberycase, Wash. Post, Nov. 16,2010 (noting that the Abramoff investigations "are winding down")(attached as Exhibit L).

Moreover, even if disclosure of some of the requested records could, if released, interferewith ongoing enforcement proceedings, DOJ is wrong to withhold all of the records. WhileCREW does not know what witness statements, investigation reports, prosecution memoranda,and FBI 302 reports related to the investigation ofMr. DeLay DOJ possesses, it is extremelyunlikely that all of them are related to ongoing proceedings and disclosure could reasonably beexpected to interfere with those proceedings. It is much more likely that some, if not most, oftherequested records relate solely to closed proceedings such as the investigation ofMr. DeLayhimself, and their release would not cause harm to any open proceedings. DOJ improperlywithheld any such records under Exemption 7(A).

Similarly, DOJ did not comply with its duty under the FOIA to disclose all non-exempt,segregable portions of the records. The FOIA requires agencies to "disclose any reasonablysegregable portion of a record . . . after deletions of the portions which are exempt." 5 U.S.c. 552(b). "[T]he focus in the FOIA is information, not documents, and an agency cannot justifywithholding an entire document simply by showing that it contains some exempt material."Mead Data Central, Inc. v. United States Dep 't ofAir Force, 566 F.2d 242, 260 (D.C. Cir.1977); see also Public Citizen Health Research Group v. FDA, 185 F.3d 898, 907 (D.C. Cir.1999). Even if some of the requested records contain information related to open enforcementproceedings and disclosure of that information could reasonably be expected to interfere withthose proceedings, it is again very unlikely that all of the information in the requested records isexempt. DOJ should have redacted any legitimately exempt information and disclosed theremainder of the records.


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Accordingly, DOl's initial determination that all of the requested records are exemptunder Exemption 7(A) plainly is in error and must be reversed.

Respectfully submitted,

Adam J.RappapOli )Senior Counsel

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