in the united states court of appeals for …. 17-2231(l), 17-2232, 17-2233, 17-2240 (consolidated)...

Nos. 17-2231(L), 17-2232, 17-2233, 17-2240 (Consolidated)

IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., Plaintiffs-Appellees,

IRANIAN ALLIANCES ACROSS BORDERS, et al., Plaintiffs-Appellees,

EBLAL ZAKZOK, et al.,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, et al., Defendants-Appellants.

On Appeal from the United States District Court for the District of Maryland, Southern Division

(8:17-cv-00361-TDC)

PLAINTIFFS-APPELLEES’ MOTION FOR JUDICIAL NOTICE AND TO SUPPLEMENT THE RECORD

Lena F. Masri Gadeir Abbas COUNCIL ON AMERICAN-ISLAMIC

RELATIONS 453 New Jersey Avenue SE Washington, D.C. 20003 Tel.: (202) 488-8787 Fax: (202) 488-0833 [email protected] [email protected]

Robert A. Atkins Charles E. Davidow Liza Velazquez Andrew J. Ehrlich Steven C. Herzog PAUL, WEISS, RIFKIND, WHARTON

& GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Additional counsel on next page

Appeal: 17-2231 Doc: 159-1 Filed: 12/04/2017 Pg: 1 of 16 Total Pages:(1 of 111)

Faiza Patel Michael Price BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW 120 Broadway, Suite 1750 New York, NY 10271 Tel.: (646) 292-8335 Fax: (212) 463-7308 [email protected] [email protected]

Tel.: (212) 373-3000 Fax: (212) 757-3990 [email protected] [email protected] [email protected] [email protected] Jethro Eisenstein PROFETA & EISENSTEIN 45 Broadway, Suite 2200 New York, New York 10006 Tel.: (212) 577-6500 Fax: (212) 577-6702 [email protected]

Counsel for Plaintiffs-Appellees Zakzok, et al.

Karen C. Tumlin Nicholas Espíritu Melissa S. Keaney Esther Sung NATIONAL IMMIGRATION LAW

CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 [email protected] [email protected] [email protected] [email protected] Justin B. Cox NATIONAL IMMIGRATION LAW

CENTER P.O. Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 [email protected]

Omar C. Jadwat Lee Gelernt Hina Shamsi Hugh Handeyside Sarah L. Mehta David Hausman AMERICAN CIVIL LIBERTIES UNION

FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Additional counsel on next page


Kathryn Claire Meyer Mariko Hirose INTERNATIONAL REFUGEE

ASSISTANCE PROJECT 40 Rector Street, 9th Floor New York, New York 10006 Tel: (646) 459-3044 Fax: (212) 533-4598 [email protected] [email protected] David Rocah Deborah A. Jeon Sonia Kumar Nicholas Taichi Steiner AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF MARYLAND 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Tel: (410) 889-8555 Fax: (410) 366-7838 [email protected] [email protected] [email protected] [email protected]

Cecillia D. Wang Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION

FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 [email protected] [email protected] [email protected] David Cole Daniel Mach Heather L. Weaver AMERICAN CIVIL LIBERTIES UNION

FOUNDATION 915 15th Street NW Washington, DC 20005 Tel: (202) 675-2330 Fax: (202) 457-0805 [email protected] [email protected] [email protected]

Counsel for Plaintiffs-Appellees IRAP, et al.

Johnathan Smith Sirine Shebaya MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 [email protected] [email protected]

Richard B. Katskee Eric Rothschild Andrew L. Nellis^

Mark H. Lynch Mark W. Mosier Herbert L. Fenster Jose E. Arvelo John W. Sorrenti Katherine E. Cahoy Rebecca G. Van Tassell Karun Tilak COVINGTON & BURLING LLP One City Center 850 10th Street, NW Additional counsel on next page


AMERICANS UNITED FOR

SEPARATION OF CHURCH AND

STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 [email protected] [email protected] [email protected]

Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Counsel for Plaintiffs-Appellees I.A.A.B., et al.

^Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar


1. Plaintiffs file this motion to request (1) that the Court take judicial

notice of, and supplement the appellate record to add evidence of, recent

official statements and actions of the President, and (2) that the appellate

record be supplemented to add four press articles discussed in the parties’

briefs.1

Legal Standard

2. This Court “may judicially notice a fact that is not subject to

reasonable dispute because it . . . can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” Fed. R.

Evid. 201(b)(2); Martin v. Duffy, 858 F.3d 239, 253 n.4 (4th Cir. 2017).

3. This Court also “has the power, either on motion or of its own accord,

to require that the record be corrected or supplemented.” Loc. R. 10(d). An

appellate court may supplement the record where new evidence informs the

“appropriateness of injunctive relief,” In re Application of Adan, 437 F.3d

381, 398 n.3 (3d Cir. 2006) (citing Goland v. Cent. Intelligence Agency, 607

F.2d 339, 370 n.7 (D.C. Cir.1978)), and where “remanding the case to the

district court for consideration of the additional material would be contrary

to the interests of justice and the efficient use of judicial resources,” Acumed

LLC v. Advanced Surgical Servs., 561 F.3d 199, 226 (3d Cir. 2009).

1 Counsel for all parties have been informed of the intended filing of this

motion. All Plaintiffs consent to the granting of this motion. Defendants do not consent, but have not indicated whether they intend to file a response in opposition.


2

Argument

4. On November 29, 2017, the President used his Twitter account to

publish to his more than 43 million followers three videos from the account

of Jayda Fransen, the Deputy Leader of Britain First, an extremist political

party in the United Kingdom, the mission of which includes opposition to

Islam.2

5. Each of the three videos distributed by the President depicts an act of

violence or the destruction of a Christian religious symbol coupled with a

caption attributing the actions depicted to a “Muslim” or “Islamist.” In at

least one case, the claim is demonstrably false, and in the rest remains

unverified. The first video is captioned “Muslim migrant beats up Dutch

boy on crutches!”3 It does not in fact depict a Muslim migrant.4 The second 2 Principles of the Britain First Movement, Britain First, https://www.britainfirst.org/principles (last visited Dec. 4, 2017) (Herzog Decl. Ex. E). 3 Jayda Fransen (@JaydaBF), Twitter (Nov. 28, 2017, 12:40 PM), https://twitter.com/JaydaBF/status/935609305574903812 (retweeted by Donald J. Trump (@realDonaldTrump) (Nov. 29, 2017, 6:37 AM)) (Herzog Decl. Ex. A). 4 Peter Baker & Eileen Sullivan, Trump Shares Inflammatory Anti-Muslim Videos, and Britain’s Leader Condemns Them, N.Y. Times (Nov. 29, 2017), https://www.nytimes.com/2017/11/29/us/politics/trump-anti-muslim-videos-jayda-fransen.html (Herzog Decl. Ex. F).

The Netherlands Embassy also responded to the President and confirmed that the individual in the video was not a migrant: “The perpetrator of the violent act in this video was born and raised in the Netherlands.” Netherlands Embassy (@NLintheUSA), Twitter (Nov. 29, 2017, 11:26 AM), https://twitter.com/NLintheUSA/status/935953115249086464 (Herzog Decl. Ex. G).


3

video is captioned “Muslim Destroys a Statue of Virgin Mary!”5 The third

video is captioned “Islamist mob pushes teenage boy off roof and beats him

to death!”6

6. The President’s spokesperson subsequently asserted that “security and

public safety for the American people . . . are the issues [the President] was

raising with [those] tweets,” that “[t]he President has been talking about

these security issues for years now, from the campaign trail to the White

House,” and that “the President has addressed these issues with the travel

order that he issued earlier this year and the companion proclamation.”7

7. This evidence emerged subsequent to the district court’s injunction.

While Plaintiffs’ arguments before this Court remain the same, this new

evidence provides further support for those arguments because the

President’s statements express hostility towards Muslims and foment

5 Jayda Fransen (@JaydaBF), Twitter (Nov. 29, 2017, 1:40 AM) https://twitter.com/JaydaBF/status/935805606447013888 (retweeted by Donald J. Trump (@realDonaldTrump) (Nov. 29, 2017, 6:43 AM)) (Herzog Decl. Ex. B). 6 Jayda Fransen (@JaydaBF), Twitter (Nov. 28, 2017, 11:40 PM), https://twitter.com/JaydaBF/status/935775552102981633 (retweeted by Donald J. Trump (@realDonaldTrump) (Nov. 29, 2017, 6:44 AM)) (Herzog Decl. Ex. C). 7 The White House has published a transcript of these remarks on its official website. Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO, Office of the Press Secretary, The White House (Nov. 29, 2017), https://www.whitehouse.gov/the-press-office/2017/11/29/press-gaggle-principal-deputy-press-secretary-raj-shah-en-route-st-louis (Herzog Decl. Ex. D).


4

conflict between Christians and Muslims in the United States, and his

spokesperson’s remarks directly link the anti-Muslim statements to the

Proclamation itself. Cf. Gov’t Opening Br. 52, Gov’t Reply 26.

8. Plaintiffs respectfully request that the Court take judicial notice of the

President’s November 29, 2017 tweets, which are set forth in Exhibits A–C

of the Herzog Declaration, as well as the subsequent statements by his

spokesperson, which are set forth as Exhibit D of the Herzog Declaration.

Plaintiffs additionally move to supplement the record to include these

materials.

9. The President’s statements cannot reasonably be disputed and the

accuracy of the source—the President or his spokesperson—cannot be

questioned. The government has conceded that the President’s tweets are

official statements by the President.8 Judicial notice therefore is appropriate.

See Fed. R. Evid. 201(b)(2); see Martin v. Duffy, 858 F.3d 239, 253 n.4 (4th

8 J.A. 794, 1006 (statement from then White House Press Secretary Sean Spicer that the President’s tweets should be “considered official statements by the President of the United States”); see also Government’s Nov. 13, 2017 supplemental submission (Dkt. No. 29) in James Madison Project v. Department of Justice, No. 1:17-cv-00144-APM (D.D.C.) (“[T]he government is treating the President’s statements to which plaintiffs point – whether by tweet, speech or interview – as official statements of the President of the United States”) (Herzog Decl. Ex. H); Letter from Marc T. Short, Assistant to the President for Legislative Affairs, to Rep. K. Michael Conaway & Rep. Adam Schiff (June 23, 2017), available at http://i2.cdn.turner.com/cnn/2017/images/06/23/white.house.letter.pdf (referring to the President’s tweets as “President Trump’s June 22, 2017 statement”) (Herzog Decl. Ex. I).


5

Cir. 2017) (the Court “may properly take judicial notice” of government

policy). That is true regardless of whether the facts to be judicially noticed

arose following the district court’s decision. See, e.g., Romine v. Diversified

Collection Servs., Inc., 155 F.3d 1142, 1146-47 (9th Cir. 1998) (taking

judicial notice of an FTC letter that “was not published at the time of

briefing and argument before the district court”); In re Am. Biomaterials

Corp., 954 F.2d 919, 922 (3d Cir. 1992) (quoting Landy v. Fed. Deposit Ins.

Corp., 486 F.2d 139, 151 (3d Cir. 1973), cert. denied, 416 U.S. 960 (1974))

(noting that “an appellate court in a proper case” may “take judicial notice of

new developments not considered by the lower court”).

10. Plaintiffs also respectfully request that this Court exercise its inherent

authority to supplement the record. Appellate courts have the equitable

authority to supplement the record. E.g., Acumed LLC v. Advanced Surgical

Servs., 561 F.3d 199, 226 (3d Cir. 2009); United States v. Kennedy, 225 F.3d

1187, 1192 (10th Cir. 2000); Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir.

1986); Freedman v. Mendelson, 197 F.R.D. 276, 279-80 (E.D. Va. 2000)

(stating that “federal appellate courts [may] consider matters beyond the

record on appeal as a matter of inherent discretion,” including “in the

interest of justice”). An appellate court may supplement the record where

new evidence informs the “appropriateness of injunctive relief,” In re

Application of Adan, 437 F.3d 381, 398 n.3 (3d Cir. 2006) (citing Goland v.

Cent. Intelligence Agency, 607 F.2d 339, 370 n.7 (D.C. Cir.1978)), and

where “remanding the case to the district court for consideration of the


6

additional material would be contrary to the interests of justice and the

efficient use of judicial resources,” Acumed LLC, 561 F.3d at 226.

11. The present circumstances are precisely those that merit

supplementation. The President’s recent statements and those of his

spokesperson were not before the district court solely because they were

issued while the matter was on appeal before this Court. There is no need

for further fact-finding where, as here, the statements by the President and

his spokesperson cannot be disputed. Remand to the district court is

therefore unnecessary and highly inefficient. Nor could there be any

conceivable prejudice to the government, which, having issued these

statements, surely received contemporaneous notice of their contents.

12. Plaintiffs additionally request that the Court supplement the record

with four news articles that Plaintiffs referenced in their Opening Brief,9

9 These include: Eric Hananoki, New DHS Senior Advisor Pushed “Mosque Surveillance Program,” Claimed that Muslims “By-And-Large” Want to Subjugate Non-Muslims, Media Matters (Mar. 14, 2017), https://www.mediamatters.org/research/2017/03/14/new-dhs-senior-adviser-pushed-mosque-surveillance-program-claimed-muslims-and-large-want-subjugate/215634 (Herzog Decl. Ex. J); Noah Lanard, A Fake Jihadist Has Landed a Top Job at Homeland Security, Mother Jones (Nov. 1, 2017), http://www.motherjones.com/politics/2017/11/a-fake-jihadist-has-landed-a-top-job-at-homeland-security/ (Herzog Decl. Ex. K); Jonathan Blitzer, How Stephen Miller Single-Handedly Got the U.S. To Accept Fewer Refugees, New Yorker (Oct. 13, 2017), https://www.newyorker.com/news/news-desk/how-stephen-miller-single-handedly-got-the-us-to-accept-fewer-refugees (Herzog Decl. Ex. L); and Associated Press, U.S., Cuba Fail to Reach Accord on Immigration (July 10, 1986), available at http://articles.latimes.com/1986-07-10/news/mn-22586_1_radio-marti. Pfs. Br. 6 nn.2-3, 32 & n.13, 49 n.21 (Herzog Decl. Ex. M).


7

along with the documents cited herein that provide context for the

President’s recent statements. These documents are set forth in Exhibits E–

M of the Herzog Declaration.

13. While Plaintiffs submit that there is ample record evidence to affirm

the district court’s order, and that it would not typically be necessary to

formally add these articles to the record, the government has noted that they

are not in the record—albeit without contesting their accuracy.

14. Plaintiffs therefore respectfully request that the record be

supplemented to include these articles in the interest of having all relevant

materials in the record. One of the articles, dated October 13, 2017, was

published the day before Plaintiffs’ reply briefs were filed in the District

Court pursuant to an expedited briefing schedule. It was cited in the district

court, see International Refugee Assistance Project Reply Br. 2 n.4,

International Refugee Assistance Project v. Trump, No 8:17-cv-00361-TDC

(D. Md. Oct. 14, 2017), ECF No. 216, but was not formally added to the

record at that time. A second article, dated November 1, 2017, was

published after the District Court issued its Opinion and Order on October

17, 2017, J.A. 993, 1084, and as such Plaintiffs did not have the opportunity

to provide it to the District Court. A third article, dated March 14, 2017,

concerned an individual whose role in overseeing implementation of the

Executive Orders did not come to light until November 1, 2017. The final

article, dated July 10, 1986, is an Associated Press story describing the

suspension of entry of Cuban nationals under President Reagan. The


8

government has not contested the accuracy of the statements made in any of

these articles.

15. Because all of these articles are probative of the questions at issue and

may be useful to the Court, the record should be supplemented to include

them.

Dated: December 4, 2017

Lena F. Masri Gadeir Abbas COUNCIL ON AMERICAN-ISLAMIC

RELATIONS 453 New Jersey Avenue SE Washington, D.C. 20003 Tel.: (202) 488-8787 Fax: (202) 488-0833 [email protected] [email protected] Jethro Eisenstein PROFETA & EISENSTEIN 45 Broadway, Suite 2200 New York, New York 10006 Tel.: (212) 577-6500 Fax: (212) 577-6702 [email protected]

Respectfully submitted, /s/ Robert A. Atkins Robert A. Atkins Charles E. Davidow Liza Velazquez Andrew J. Ehrlich Steven C. Herzog PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel.: (212) 373-3000 Fax: (212) 757-3990 [email protected] [email protected] [email protected] [email protected] Faiza Patel Michael Price BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW 120 Broadway, Suite 1750 New York, NY 10271 Tel.: (646) 292-8335 Fax: (212) 463-7308 [email protected] [email protected]

Counsel for Plaintiffs-Appellees Zakzok, et al.


9

Karen C. Tumlin Nicholas Espíritu Melissa S. Keaney Esther Sung NATIONAL IMMIGRATION LAW

CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 [email protected] [email protected] [email protected] [email protected] Justin B. Cox NATIONAL IMMIGRATION LAW

CENTER P.O. Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 [email protected]

Kathryn Claire Meyer Mariko Hirose INTERNATIONAL REFUGEE

ASSISTANCE PROJECT 40 Rector Street, 9th Floor New York, New York 10006 Tel: (646) 459-3044 Fax: (212) 533-4598 [email protected] [email protected] David Rocah Deborah A. Jeon Sonia Kumar Nicholas Taichi Steiner AMERICAN CIVIL LIBERTIES UNION

Omar C. Jadwat Lee Gelernt Hina Shamsi Hugh Handeyside Sarah L. Mehta David Hausman AMERICAN CIVIL LIBERTIES

UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Cecillia D. Wang Cody H. Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES

UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 [email protected] [email protected] [email protected] David Cole Daniel Mach Heather L. Weaver AMERICAN CIVIL LIBERTIES

UNION FOUNDATION 915 15th Street NW Washington, DC 20005 Tel: (202) 675-2330


10

FOUNDATION OF MARYLAND 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Tel: (410) 889-8555 Fax: (410) 366-7838 [email protected] [email protected] [email protected] [email protected]

Fax: (202) 457-0805 [email protected] [email protected] [email protected]

Counsel for Plaintiffs-Appellees IRAP, et al.

Johnathan Smith Sirine Shebaya MUSLIM ADVOCATES P.O. Box 66408 Washington, D.C. 20035 Tel: (202) 897-2622 Fax: (415) 765-1774 [email protected] [email protected]

Richard B. Katskee Eric Rothschild Andrew L. Nellis^ AMERICANS UNITED FOR

SEPARATION OF CHURCH AND

STATE 1310 L St. NW, Ste. 200 Washington, D.C. 2005 Tel: (202) 466-3234 Fax: (202) 466-3353 [email protected] [email protected] [email protected]

Mark H. Lynch Mark W. Mosier Herbert L. Fenster Jose E. Arvelo John W. Sorrenti Katherine E. Cahoy Rebecca G. Van Tassell Karun Tilak COVINGTON & BURLING LLP One City Center 850 10th Street, NW Washington, D.C. 20001 Tel: (202) 662-6000 Fax: (202) 662-6302 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Counsel for Plaintiffs-Appellees I.A.A.B., et al.

^Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar


CERTIFICATE OF COMPLIANCE

I hereby certify that this motion complies with the type-face

requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-

volume limitations of Federal Rule of Appellate Procedure 27(d)(2)(A).

This motion contains 1,820 words, excluding the parts of the motion

excluded by Federal Rules of Appellate Procedure 27(d)(2) and 32(f).

/s/ Robert A. Atkins Robert A. Atkins


CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of December, 2017, I filed the

foregoing motion by use of the Fourth Circuit’s CM/ECF system.

Participants in the case are registered CM/ECF users, and service will be

accomplished by the appellate CM/ECF system.

/s/ Robert A. Atkins Robert A. Atkins


UNITED STATES DISTRICT COURT FOR THE FOURTH CIRCUIT

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.

Plaintiffs,

v.

DONALD J. TRUMP, et al.

Defendants,

Civil Action Nos. 17-2231(L), 17-2232, 17-2233, 17-2240 (Consolidated)

DECLARATION OF STEVEN C. HERZOG

I, Steven C. Herzog, to the best of my knowledge, information and belief,

hereby submit this declaration pursuant to 28 U.S.C. §1746 and declare as follows:

1. I am Counsel with the law firm of Paul, Weiss, Rifkind,

Wharton & Garrison LLP, counsel for Plaintiffs Zakzok, et al., in the above-

captioned action.

2. A true and correct copy of a November 29, 2017, tweet from

@realdonaldtrump, the verified Twitter account of President Donald J. Trump,

with the text "VIDEO: Muslim migrant beats up Dutch boy on crutches!" is

attached hereto as Exhibit A. The underlying tweet that was retweeted by the


President can also be found at

https://twitter.com/JaydaBF/status/935609305574903812.



with the text "VIDEO: Muslim Destroys a Statute of Virgin Mary!" is attached

hereto as Exhibit B. The underlying tweet that was retweeted by the President can

also be found at https://twitter.com/JaydaBF/status/935805606447013888.



with the text uVIDEO: Islamist mob pushes teenage boy off roof and beats him to

death!" is attached hereto as Exhibit C. The underlying tweet that was retweeted

by the President can also be found at

https://twitter.com/JaydaBF/status/93 57755 52102981633.

5. A true and correct copy of the transcript of the November 29,

2017, press briefing with Deputy Press Secretary Raj Sah is attached hereto as

Exhibit D. The transcript can also be found at https://www.whitehouse.gov/the-

press-office/2017/11/29/press-gaggle-principal-deputy-press-secretary-raj-shah-en-

route-st-louis.

6. A true and correct copy of a webpage on the Britain First

website entitled Principles of the Britain First Movement as of December 4, 2017,


https://twitter.com/JaydaBF/status/935609305574903812



https://www.whitehouse.gov/thepress-office/2017/11/29/press-gaggle-principal-deputy-press-secretary-raj-shah-enroute-st-louis



is attached hereto as Exhibit E. The webpage can also be found at

https://www.britainfirst.org/principles.

7. A true and correct copy of the November 29, 2017, New York

Times article by Peter Baker and Eileen Sullivan entitled Trump Shares

Inflammatory Anti-Muslim Videos, and Britain's Leader Condemns Them, is

attached hereto as Exhibit F. The article can also be found at

https://www.nytimes.com/2017/11/2 9/us/politics/trump-anti-muslim-videos-jay da-

fransen.html.

8. A true and correct copy of a November 29, 2017, tweet by

@NLintheUSA, the verified Twitter account of the Netherlands Embassy, is

attached as Exhibit G. The tweet can also be found at

https://twitter,com/NLintheUSA/status/935953115249086464.

9. A true and correct copy of the November 13, 2017,

supplemental submission by the Government (Dkt. No. 29) in James Madison

Project v. Department of Justice, No. l:17-cv-00144-APM (D.D.C.), is attached

hereto as Exhibit H.

10. A true and correct copy of a June 23, 2017, letter from Marc. T.

Short, Assistant to the President for Legislative Affairs, to Rep. K. Michael

Conaway and Rep. Adam Schiff, is attached hereto as Exhibit I. The letter can


https://www.britainfirst.org/principles

https://www.nytimes.com/2017/11/2

https://twitter,com/NLintheUSA/status/935953115249086464

also be found at

http://i2.cdn.tumer.com/cnn/2017/images/06/23/white.house.letter.pdf.

11. A true and correct copy of the March 14, 2017, Media Matters

article by Eric Hanonoki entitled New DHS Senior Advisor Pushed "Mosque

Surveillance Program, " Claimed that Muslims "By-And-Large " Want to

Subjugate Non-Muslims is attached hereto as Exhibit J. The article can also be

found at https://www.mediamatters.org/research/2017/03/14/new-dhs-senior-

adviser-pushed-mosque-surveillance-program-claimed-muslims-and-large-want-

subjugate/215634.

12. A true and correct copy of the November 1, 2017, Mother Jones

article by Noah Lanard entitled A Fake Jihadist Has Landed a Top Job at

Homeland Security is attached hereto as Exhibit K. The article can also be found

at http://www.motherjones.com/politics/2017/11/a-fake-jihadist-has-landed-a-top-

j ob-at-homeland-security/.

13. A true and correct copy of the October 13, 2017, New Yorker

article by Jonathan Blitzer entitled How Stephen Miller Single-Handedly Got the

U.S. To Accept Fewer Refugees is attached hereto as Exhibit L. The article can

also be found at https://www.newyorker.com/news/news-desk/how-stephen-miller-

single-handedly-got-the-us-to-accept-fewer-refugees.


http://i2.cdn.tumer.com/cnn/2017/images/06/23/white.house.letter.pdf

https://www.mediamatters.org/research/2017/03/14/new-dhs-senioradviser-pushed-mosque-surveillance-program-claimed-muslims-and-large-wantsubjugate/215634



http://www.motherjones.com/politics/2017/11/a-fake-jihadist-has-landed-a-top

https://www.newyorker.com/news/news-desk/how-stephen-millersingle-handedly-got-the-us-to-accept-fewer-refugees

https://www.newyorker.com/news/news-desk/how-stephen-millersingle-handedly-got-the-us-to-accept-fewer-refugees

14. A true and correct copy of the July 10, 1986, Associated Press

article entitled U.S., Cuba Fail To Reach Accord on Immigration, is attached

hereto as Exhibit M. The article can also be found at

http://articles.latimes.com/1986-07-10/news/mn-22586_l_radio-marti.

I declare under penalty of perjury that the foregoing is true and correct.

Executed at New York, New York on December 4, 2017.

Steven C. Herzog


http://articles.latimes.com/1986-07-10/news/mn-22586_l_radio-marti

EXHIBIT A


JA 1497


EXHIBIT B


JA 1498


EXHIBIT C


JA 1499


EXHIBIT D


12/4/2017 Press Gaggle by Principal Deputy Press Secretary Raj Shah en route St. Louis, MO | whitehouse.gov

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From the Press O�iceSpeeches & Remarks

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For Immediate Release November 29, 2017

The White HouseO�ice of the Press Secretary

Press Gaggle by Principal DeputyPress Secretary Raj Shah en route St.Louis, MO

Aboard Air Force One

En Route St. Louis, Missouri

1:45 P.M. EST

MR. SHAH: We're looking forward to the President's remarks later today. It will be in St.Charles, talking about the need for middle-class tax relief and business tax relief.

The focus of today's remarks are going to be on small businesses. He's going to feature twospecific small businesses. One is a local small business incubator, and the other is a jewelry

the WHITE HOUSE

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business -- they're a retail business that also wholesales to about two and a half dozendi�erent retailers throughout the country.

So we're very excited about these remarks, and we're excited about the developments onpushing tax reform and tax cuts. And the President is going to make a push for "Yea" votes.

So with that -- yeah.

Q Democrats are saying that the President's tweets have become an impediment to thefunctioning of government, if you look at what happened yesterday and then the Muslimtweets today. How do you respond that -- that he's actually in the way of doing the work ofthe government?

MR. SHAH: Well, look, we think that it's never the wrong time to talk about security andpublic safety for the American people. Those are the issues he was raising with the tweetsthis morning.

With respect to the tweets yesterday -- or the tweet yesterday, we think it's verydisappointing that Senator Schumer and Leader Pelosi chose to basically pick a fight andengage in a stunt rather than actually governing.

We've long been very public about our disagreements with Democrats on the issues. Butchoosing not to talk and not to show up, especially when we're very close to a governmentfunding deadline, is irresponsible, it's reckless, and we find it very disappointing.

Q Is the administration doing anything to prepare for the possibility of a governmentshutdown?

MR. SHAH: Look, there are always contingencies in place, but we hope it doesn't get to that.We really think that Democrats' insistence on attaching amnesty provisions that don't gothrough the legislative process to must-pass funding bills -- something that Chuck Schumerand other Democrats have warned against in the past. I think Chuck Schumer said that that'sthe equivalent of an arsonist. So I think you should ask him about what's actually driving thegovernment toward a potential shutdown.

Look, we think that it's very important to fund the government. We have vital nationalsecurity interests from funding our troops to funding our veterans, and, most importantly,the national security threats around the world. We're seeing that, obviously, in the last 24hours with North Korea's missile test.

So, we are not anticipating a shutdown. We think that we'll be able to work together, but thedevelopments of the last 24 hours are discouraging.

Zeke.

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Q The North Korean government claims now that it has the capacity to strike anywhere inthe continental United States with a nuclear-topped missile. Is that the assessment of theU.S. government?

MR. SHAH: I'm not going to get into the details of our assessment, but I will say that theNorth Korean threat is very grave. It's not just a threat to the United States or a threat to theregion -- or the Korean Peninsula region, but a threat to the entire world and the civilizedworld.

And we're encouraged that more countries are taking more significant steps to help apply asmuch maximum pressure as we can on North Korea.

Q The President, this morning, mentioned the possibility of new sanctions on North Korea.What was he talking about?

MR. SHAH: Well, I'm not going to get ahead of any announcement that's coming. I will say,though, that the maximum pressure campaign that the United States has been a big part ofhas really yielded a lot of results.

seen the toughest sanctions ever imposed on North Korea that the Chinese and Russianshave signed onto. We've seen China restrict energy shipments to North Korea. We're seeingdozens of countries engage in di�erent e�orts in their bilateral ties with North Korea to cuto� both energy, economic ties, and diplomatic ties.

So we're seeing more and more steps take place. We'll see future actions by the UnitedStates and others, and we're looking forward to applying as much pressure as we can to getto our ultimate goal, which is a denuclearized Korean Peninsula.

Q Can I look back on the tweets this morning? There's two separate ones I want to talkabout. The first one is, obviously, the retweets of videos that were said to depict Muslims.One of them has already been sort of shown to not be a Muslim or an immigrant. The entire,sort of, decision to retweet a sort of far-right party in the U.K. has drawn condemnation fromDowning Street. You might want to highlight security issues, but can't you concede thatthere's far better ways to do that than retweeting fake videos in a way that upsets our allies?

MR. SHAH: The President has been talking about these security issues for years now, fromthe campaign trail to the White House. He talked about them yesterday at the pool spray.He's going to continue to talk about them on Twitter, he's going to talk about them inspeeches, he's going to talk about them in policy --

Q The security issue, right? But --

MR. SHAH: I think the President raised a security issue that we've been talking about atlength. Look, we are now looking at the possibility of a di�iculty in passing government

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funding legislation because of disagreements on immigration policy. The Democrats'priority is amnesty. Our priority is safety and security.

Q I have no idea what that had to do with a tweet of a video that has nothing to do withMuslims or immigrants or the United States. I just -- can you make the connection for me?

MR. SHAH: The President is raising these security issues that he's been raising for years.

Q Was the President aware of the source of the tweets that he was retweeting?

MR. SHAH: I haven't spoken to him about that.

Q How's the response to Theresa May and her o�ice condemning the President forretweeting those messages today?

MR. SHAH: We have the greatest respect -- The President has the greatest respect for theBritish people and for Prime Minister May.

Q How did those tweets come to his attention -- the Muslim videos? Does he follow thosefolks?

MR. SHAH: Look, we're not going to be focusing on process. I know you guys want to. We'regoing to be focusing on the --

Q No, we want to focus on -- we want to focus on why the President is retweeting from a far-right, anti-Muslim party that's been condemned by the British leadership.

MR. SHAH: Again, we're going to be focusing on the issues that are being raised, which issafety and security for the American people. We're talking about extreme vetting policies,ensuring that individuals who come to the United States do not pose either a public safety ora terrorism threat, and the other measures that we want to take.

For example, ending the visa lottery system that allows individuals to come to the UnitedStates, and replacing it with a merit-based system. Remember, the eight individuals whowere killed in New York City last month -- the killer, the terrorist came here through the visalottery system.

So the President is going to continue talking about these issues because they're importantfor the safety and security of this county.

Q Does the President think that Muslims are a threat to the United States?

MR. SHAH: No, look, the President has addressed these issues with the travel order that heissued earlier this year and the companion proclamation.

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There are plenty of Muslim-majority nations whose citizens can come to the United Stateswithout travel restrictions. But those that pose public safety or terrorism threats through ourworldwide security review that was overseen by the Department of Homeland Security iswhy there were certain travel restrictions put in place.

Q I want to ask about -- both another tweet that happened this morning, and a story lastnight in the New York Times where the President seemed to be forwarding conspiracytheories. The one this morning was the implication, it seemed, that Joe Scarborough wasinvolved, in some way, in the death of an intern in his o�ice. I'm wondering if you couldexplain if there's any other explanation for what the President meant in his tweet.

Second is the New York Times story. Has the President, at any point since taking o�ice,voiced doubt over either the authenticity of the Access Hollywood tape or the authenticity ofPresident Obama's birth certificate? And if so, can you explain why that's changed from thecampaign?

MR. SHAH: On the New York Times story, there are a number of inaccuracies in that report.Each of the issues that it brings up, the President, for quite some time now, has addressed.Nothing has changed on his views.

Q What were the specific inaccuracies?

MR. SHAH: I'm not going to get into the details of it, just to state that there are a number ofinaccuracies in the report. Nothing that the President or his sta� has said publicly haschanged. His views on those issues have not changed. And there's nothing --

Q (Inaudible) publicly?

MR. SHAH: You know, there's nothing further to add.

And then on -- I'm sorry, what was -- yeah, the -- on the issue -- look, I haven't talked to himabout it. I have nothing to add on that.

Q Would the President accept a fiscal trigger in the tax cut legislation that Corker isproposing?

MR. SHAH: So we are supportive of fiscal discipline. We think that tax cuts that makeAmerican businesses more competitive and bring more jobs to the United States is the wayto grow our economy, create more revenue, and fix any fiscal issues coming forward.

We're going to let Congress decide on some of these details, so I don't have specifics on thatprovision, and if we have something forthcoming, I'll let you know.

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Q And is the President reaching out to some of these people who are on the fence -- likeSenator McCain, Susan Collins?

MR. SHAH: Look, you know, he went to the Senate yesterday and, a�er meeting with thesenators, got a yes vote out of the Senate Budget Committee. He's going to continue toengage with Senator Collins, others -- and he's spoken to Senator Collins about some of herconcerns.

Look, we see a lot of momentum behind this bill. You know, we have passage out of thejudiciary committee, passage out of the budget committee. We're looking forward to a votelater this week that we fully expect to pass, and we're looking forward to finally get tax cutspassage by Christmas.

Q Raj, I have two for you. One of the President's tweets this morning -- the retweets that arebeing condemned by Muslim groups in the United States as being part of a pattern. Somesuggest that the President may be spreading Islamophobia in the United States. Does thePresident -- the White House want to reassure Muslims in the United States of their security?And what steps does the President take to do that going forward?

And secondly, with regards to Theresa May's criticism of the President, does the Presidentstill have plans to go England anytime soon? That seems to be -- it was delayed this year.When does he plan on making that trip now?

MR. SHAH: Well, there was nothing scheduled on a trip to the U.K., so any announcementwill be forthcoming. We just don't have anything on the books right now. Look, the Presidentis the President of all Americans. The tweets were about national security and protecting thesafety and security of the American people.

Q Can you explain that? I mean, these were videos of -- now, in one case, a debunked videoof some people that a far-right, anti-Islamic group was claiming was violence allegedlycommitted by Muslims against other unidentified people in grainy videos. Why is thatanything to do about security?

MR. SHAH: Look, a lot of folks want to focus on the videos. We want to focus on the issues.It's about safety. It's about security. It's about ensuring that individuals that come to theUnited States don't pose a public safety or terrorism threat.

Q Does the President put the focus --

MR. SHAH: Hang on.

Q He didn't retweet issues; he retweeted videos.

MR. SHAH: No, but he is raising the issues.

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Q Yeah, but with those videos, if the President wants to make a policy point and talk aboutnational security, couldn't he do that in a way that doesn't include fake videos?

MR. SHAH: He does do that, o�en. He did that yesterday and he continues to do that all thetime. He's talked about -- extensively about these issues. He's signed presidentialproclamations, signed executive orders. He's talked about these issues at quite some length,and today was just another example of it.

Q Senator Lee and Senator Rubio, today, have been floating a proposal to sort of bump upthe corporate rate to 22 percent. I know that you guys have said a lot of this is getting sortedon Capitol Hill. You've said that corporate rate is one of your bright lines -- red lines, on this.So, can you say whether or not you would support that proposal, specifically?

MR. SHAH: We do support the child tax credit. We also think that it's important to makebusinesses more competitive. We would not support raising the corporate rate as outlined inthat amendment.

Q You talked about improving -- making improvements for the middle class. Can you give usany examples of what the President is looking for and to make things better for the middleclass in this package?

MR. SHAH: In this package? Yeah, look, this bill provides significant middle-class tax relief. Itprovides tax relief in the form of the child tax credit. Both the House and Senate proposalsthat have moved forward have significant tax relief for middle-class families. A family of fourin the median income would receive, on average, an $1,182 tax credit, so -- or tax cut -- so webelieve it's a huge boom for the middle class.

All right, folks.

Q Monday to Utah?

MR. SHAH: I can't confirm that.

END

1:57 P.M. EST

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EXHIBIT E


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EXHIBIT G


JA 1517


EXHIBIT H


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ )

JAMES MADISON PROJECT, et al., ) )

Plaintiffs, ) )

v. ) No. 1:17-cv-00144-APM )

DEPARTMENT OF JUSTICE, et al., ) )

Defendants. ) ____________________________________)

DEFENDANTS’ SUPPLEMENTAL SUBMISSION AND FURTHER RESPONSE TO PLAINTIFFS’ POST-BRIEFING NOTICES

PRELIMINARY STATEMENT

The Court has asked defendants Office of the Director of National Intelligence (ODNI),

Central Intelligence Agency (CIA), Department of Defense, and Department of Justice to

provide “insight on . . . the President’s tweets and what they are, how official they are, are they

statements of the White House and the President.” Stat. Conf. Tr. at 6:8-10 (Nov. 2, 2017).

When it made its request, the Court referred to the argument in the “final pleading” of plaintiffs

James Madison Project and Josh Gerstein “that we just can’t dismiss these tweets out of hand.”

Id. at 6:11-12.

Going beyond the argument in their “final pleading,” plaintiffs have filed several post-

briefing “notices” asserting that the President and the White House Press Secretary have

disclosed in five recent statements, including three that are not tweets, that ODNI, the CIA, the

National Security Agency (NSA), or the Federal Bureau of Investigation (FBI) has made a final

determination as to the veracity of one or more of the factual allegations allegedly contained in

the two-page synopsis of the so-called dossier. ECF No. 23 at 1-2; ECF No. 24 at 1-2; ECF No.

Case 1:17-cv-00144-APM Document 29 Filed 11/13/17 Page 1 of 8

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2

26 at 3; ECF No. 27 at 1-2. Plaintiffs argue on the basis of that assertion that ODNI, CIA, NSA,

and the FBI have waived the Glomar responses they have provided to Items 2 and 3 of plaintiffs’

request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.1 See id.

Plaintiffs’ argument is without merit. The government is treating the statements upon

which plaintiffs rely as official statements of the President of the United States, but nothing in

the statements states or even implies that ODNI, the CIA, NSA, or the FBI has made a final

determination as to the veracity of any factual allegation allegedly contained in the two-page

synopsis. That fact is dispositive because an official statement cannot waive a Glomar response

unless the information disclosed matches exactly the information requested. Neither the

President nor the White House Press Secretary has disclosed the basis for any of the statements

that he or she has made about the so-called dossier. Plaintiffs complain, in fact, that the

President has not done so. Nothing in the statements upon which plaintiffs rely thus constitutes a

waiver of the Glomar responses of ODNI, the CIA, NSA, or the FBI to Items 2 and 3 of

plaintiffs’ FOIA request.

1 Directed to ODNI, the CIA, NSA, and the FBI, Items 2 and 3 of plaintiffs’ request seeks “final determinations regarding the accuracy (or lack thereof) of any of the individual factual claims listed in the two page synopsis” and “investigative files relied upon in reaching the final determinations referenced in category #2.” ECF No. 7 ¶ 14. The two-page synopsis has not been produced to plaintiffs and plaintiffs do not challenge its withholding pursuant to FOIA Exemptions 1 and 3.


JA 1519


3

FACTUAL BACKGROUND

The five statements to which plaintiffs point in arguing that the Glomar responses of

ODNI, the CIA, NSA, and the FBI to Items 2 and 3 of plaintiffs’ request have been waived are

the following:

1. A tweet of October 19, 2017, in which the President said: “Workers of firm involved

with the discredited and Fake Dossier take the Fifth. Who paid for it, Russia, the FBI or the

Dems (or all)?” ECF No. 25-4.2

2. A tweet of October 21, 2017, in which the President said: “Officials behind the now

discredited ‘Dossier’ plead the Fifth. Justice Department and/or FBI should immediately release

who paid for it.” ECF No. 25-5.

3. An October 21, 2017, interview conducted by Lou Dobbs of Fox Business. Ex. A at

1.3 Asked during the interview to comment on “efforts by the Hillary Clinton campaign and the

Democratic National Committee (DNC) to fund research in [an] attempt to smear his presidential

campaign,” the President said:

Don’t forget Hillary Clinton totally denied this. She didn’t know anything. She knew nothing. All of a sudden they found out. What I was amazed at, it’s almost $6 million that they paid and it’s totally discredited, it’s a total phony. I call it fake news. It’s disgraceful. It’s disgraceful.

Id.

4. An October 31, 2017 press briefing during which the White House Press Secretary

was asked to provide a “definition of collusion” that would explain her view that “Trump didn’t

2 All of the tweets to which plaintiffs refer are from @realDonaldTrump, the personal Twitter account President Trump established in 2009 and continues to use to tweet about a variety of topics. 3 References to exhibits are to the exhibits to this memorandum.


JA 1520


4

collude [with the Russians] but Hillary did.” Ex. B at 9. Her response was: “I think the

exchanging [of] millions of dollars to create false information is a pretty big indication.” Id.

5. An interview of the President, broadcast on November 5, 2017, during which he was

asked by Sharyl Atkisson to respond to revelations that “the Hillary Clinton campaign . . . funded

that so-called dossier.” Ex. C at 2. His response included the following:

[W]hen you look at that horrible dossier which is a total phony fake deal like so much of the news that I read when you look at that and take a look at what’s gone on with that and the kind of money we’re talking about it is a disgrace.

Id.

ARGUMENT

NOTHING IN THE STATEMENTS UPON WHICH PLAINTIFFS RELY CONSTITUTES A WAIVER OF THE GLOMAR RESPONSES OF ODNI, THE CIA, NSA, OR THE FBI TO ITEMS 2 AND 3 OF PLAINTIFFS’ FOIA REQUEST. The Court has asked, broadly, about the official status of the President’s tweets. See Stat.

Conf. Tr. at 6: 8-10 (asking the parties to “provide insight on . . . the President’s tweets and what

they are, how official they are, are they statements of the White House and the President”). In

answer to the Court’s question, the government is treating the President’s statements to which

plaintiffs point – whether by tweet, speech or interview – as official statements of the President

of the United States. The key point, however, is that, regardless of the medium, none of those

statements matches the information plaintiff is seeking. Accordingly, the statements cannot

constitute a waiver of the Glomar responses that ODNI, the CIA, NSA, and the FBI have

provided to Items 2 and 3 of plaintiffs’ request

“[L]ike other information withheld pursuant to an exemption, an agency can waive a

Glomar response through official acknowledgment.” Mobley v. CIA, 806 F.3d 568, 584 (D.C.

Cir. 2015). “An agency’s official acknowledgment of information by prior disclosure . . . cannot

be based,” however, “on mere public speculation, no matter how widespread.” Wolf v. CIA, 473


JA 1521


5

F.3d 370, 378 (D.C. Cir. 2007). “[A] strict test [thus] applies to claims of official disclosure.’”

Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (quoting Wilson v. CIA, 586 F.3d 171, 186

(2d Cir. 2009). This test requires the plaintiff to show that “‘the information requested [is] as

specific as the information previously released . . . match[es] the information previously

disclosed . . . and . . . [has] already . . . been made public through an official and documented

disclosure.’” Id. (quoting ACLU v. Dep’t of Def., 628 F.3d 612, 620-21 (D.C. Cir. 2011));

accord ACLU v. Dep’t of Justice, 640 F. App’x 9, 11 (D.C. Cir. 2016); Mobley, 806 F.3d at 583

(D.C. Cir. 2015); Wolf, 473 F.3d at 378; Pub. Citizen v. Dep’t of State, 11 F.3d 198, 202 (D.C.

Cir. 1993); Krikorian v. Dep’t of State, 984 F.2d 461, 467-68 (D.C. Cir. 1993); Fitzgibbon v.

CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).

None of the statements upon which plaintiffs rely identifies information provided by

ODNI, the CIA, NSA, or the FBI as the basis for the assertions contained in the statements that

the so-called dossier is “discredited,” “phony,” “fake,” or “false.” No “‘match’” therefore exists

between anything disclosed in the statements and the information plaintiffs seek in Items 2 and 3

of their FOIA request. See Moore, 666 F.3d at 1333 (quoting ACLU, 628 F.3d at 620). The

Court cannot assume that the President was expressing a view based on “some knowledge and

understanding” provided by these agencies. Stat. Conf. Tr. at 6:17-18. No waiver of the Glomar

responses of ODNI, the CIA, NSA, or the FBI to Items 2 and 3 may therefore be inferred from

any of the statements.

ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), which the Court referred to at the status

conference, does not suggest otherwise.4 See Stat. Conf. Tr. at 7:17-21 The court found in

4 The Court asked whether a Presidential tweet is “the equivalent of” the “public statements and speeches” at issue in ACLU v. CIA. Stat. Conf. Tr. at 7:17-21. The answer is that a tweet can be


JA 1522


6

ACLU that the CIA’s broad Glomar response to a request for ten categories of documents

pertaining to drone strikes generally, and not merely to the CIA, was not “logical” or “plausible”

due to official acknowledgments by the President and others that the United States engages in

targeted strikes using drones. 710 F.3d at 431. The court did not purport to deviate from its

long-standing doctrine on the official acknowledgment of information. Using the standard

instead for evaluating the validity of withholdings under FOIA exemptions, the court said: “The

question before us, then, is whether it is ‘logical or plausible[’] . . . for the CIA to contend that it

would reveal something not already officially acknowledged to say that the Agency ‘at least has

an intelligence interest’ in such strikes.” Id. at 429 (quoting Wolf, 473 F.3d at 375). The portion

of Wolf on which the court expressly relied was a discussion of Exemption One, and whether it

met the “logical and plausible” standard by which courts normally evaluate that exemption.

The “‘logical’ or ‘plausible’” standard has never been the standard for the official

acknowledgment of information. Although the court was less than precise in ACLU, it has

subsequently reiterated its adherence to the traditional standard. It did so, in fact, in a later

appeal in the same case. Stating that “[t]his circuit applies a three-part test to determine when an

agency has ‘officially acknowledged’ requested information,” the court said:

This test is quite strict. “Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure.” This court has explained that this “insistence on exactitude recognizes the Government’s vital interest in information relating to national security and foreign affairs.” In each case where a FOIA requester contends that an agency has acknowledged information it seeks to withhold, the burden is on the requester to point to specific information in the public domain that “appears to duplicate that being withheld.”

the equivalent of a public statement or speech, but the medium is not determinative. The significance of any statement, regardless of the medium, will depend on its substance.


JA 1523


7

ACLU v. DOJ, 640 F. App’x 9, 11 (D.C. Cir. 2016) (quoting Wolf, 473 F.3d at 378) (citations

omitted).

Nor would ACLU be apposite even assuming, arguendo, that it had any applicability

beyond its facts. Plaintiffs concede that President Trump may have “issued his tweets based

strictly and exclusively upon his own personal knowledge independent of what he has learned as

President of the United States, as well as what he may have seen on cable television.” ECF No.

26 at 2. Plaintiffs thereby concede that the characterization of the so-called dossier as something

that is “discredited,” “phony,” “fake,” or “false” in the statements upon which they rely may be

based on something other than information provided by ODNI, the CIA, NSA, or the FBI. None

of those statements thus waives the Glomar responses provided by ODNI, the CIA, NSA, and the

FBI to Items 2 and 3 of plaintiffs’ FOIA request.

Plaintiffs express dismay that the President has not identified the information that forms

the basis for his views about the so-called dossier, see ECF No. 26 at 2-3, but plaintiffs are not

entitled to clarification of what the President has chosen to say. The above Glomar responses

should therefore be upheld.

CONCLUSION

Defendants’ motion for summary judgment should be granted, and plaintiffs’ cross

motion for summary judgment denied, for the reasons set forth above and for the other reasons

presented by defendants.


JA 1524


8

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JESSIE K. LIU United States Attorney ELIZABETH J. SHAPIRO Deputy Director s/ David M. Glass DAVID M. GLASS, DC Bar 544549 Senior Trial Counsel Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Room 7200 Washington, D.C. 20529 Tel: (202) 514-4469/Fax: (202) 616-8470 E-mail: [email protected]

Dated: November 13, 2017 Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on November 13, 2017, I served the within memorandum and the

exhibits to the memorandum on all counsel of record by filing them with the Court by means of

its ECF system.

s/ David M. Glass


JA 1525


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) JAMES MADISON PROJECT, et al., ) ) Plaintiffs, ) ) v. ) No. 1:17-cv-00144-APM ) DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) ____________________________________)

EXHIBITS TO DEFENDANTS’ SUPPLEMENTAL SUBMISSION AND FURTHER RESPONSE TO PLAINTIFFS’ POST-BRIEFING NOTICES

Ex. A Henry Fernandez, Trump Exclusive: President Blasts Democrats’ Dirty Dossier

Play, Hints at Fed Choice, Fox Business (Oct. 25 2017), http://www.foxbusiness. com/politics/2017/10/25/trump-exclusive-president-blasts-democrats-dirty-dossier-play-hints-at-fed-choice.html (accessed Nov. 3, 2017)

Ex. B White House, Office of the Press Secretary, Press Briefing by Press Secretary

Sarah Sanders, 10/31/2017, #29, https://www.whitehouse.gov/the-press-office/2017/10/31/press-briefing-press-secretary-sarah-sanders-10312017-29 (accessed Nov. 5, 2017)

Ex. C President Trump on the Russian Investigation and Security, Full Measure (Nov. 5, 2017), http://fullmeasure.news/news/politics/trump-on-the-russian-investigation (accessed Nov. 5, 2017)

Case 1:17-cv-00144-APM Document 29-1 Filed 11/13/17 Page 1 of 1

JA 1526


James Madison Project v. Dep’t of Justice No. 1:17-cv-00144-APM Defendants’ Supplemental Submission and Further Response to Plaintiffs’ Post-Briefing Notices Ex. A


JA 1527



JA 1528

Trump EXCLUSIVE: President blasts Democrats' dirty dossier play, hints at Fed choice j... Page 1of3

FOX\1BUSINESS

Trump EXCLUSIVE: President blasts Democrats' dirty dossier play, hints at Fed choice By Henry Fernandez I Published October 25, 2017 I f()x

President Trump told FOX Business' Lou Dobbs on Wednesday that efforts by the Hillary

Clinton campaign and the Democratic National Committee (DNC) to fund research in attempt to smear his presidential candidacy is "disgraceful."

"Don't forget Hillary Clinton totally denied this. She didn't know anything. She knew nothing. All of a sudden they found out. What I was amazed at, it's almost $6 million that they paid and it's totally discredited, it's a total phony. I call it fake news. It's disgraceful. It's disgraceful,

Trump said on "Lou Dobbs Tonight."

Hillary Clinton recently slammed new reports of her ties to Russia's nuclear energy deals, claiming the corruption allegations have been "debunked repeatedly."

The former secretary of state said 011 C-SPAN Monday that "It's the same baloney they've been peddling for years, and there's been no credible evidence by anyone."

Trump said the Clinton camp is now trying to backtrack from the dossier that contained allegations that the Russian government had collected compromising information about Trump and that the Kremlin was engaged in an active effort to assist his presidential campaign.

"It is very interesting. She denied it. Her own people denied it. Everybody and now they are smt of scooting around trying to figure out what to say," he said.

http://www.foxbusiness.com/politics/2017 /10/25/trump-exclusive-president-blasts-democr... 11/3/2017



JA 1529

Trump EXCLUSIVE: President blasts Democrats' dirty dossier play, hints at Fed choice/... Page 2 of 3

The House Intelligence Committee announced Tuesday it's joining the House Oversight

Committee in investigating why the Obama administration approved the sale of Uranium One

to Russia, giving Moscow control of 20% of U.S. uranium supply, despite a federal investigation

that revealed Russian kickbacks and extortion.

"That's the real collusion, believe me. There was no collusion on my side, I can tell you that,"

Trump said.

According to the , Marc E. Elias, an attorney representing the Clinton

campaign and the DNC, retained the D.C.-based firm Fusion GPS to conduct opposition

research that resulted in the infamous and controversial Trump dossier. The dossier contained

allegations that the Russian government had collected compromising information about

Trump and that the Kremlin was engaged in an active effort to assist his presidential campaign.

The president noted that the push to connect his 2016 campaign to Russia has always been an

excuse by the Democrats for losing the election.

"When you hear the kind of money they spent, and when you see all of the things about [Tony]

Podesta and you see all the relationships that they actually have with Russia," Trump said,

referring to what he called Democratic efforts to link his campaign to Russia.

Special Counsel Robert Mueller· is reportedly investigating the Democratic lobbying group led

by Tony Podesta, brother of Hillary Clinton's campaign manager, John Podesta.

The president also continued to hedge on who might be the next Federal Reserve chair as the

focus appears to be on Stanford University economics professor John Taylor and current Fed

Governor Jerome Powell.

"I really have it down to two and maybe three people and I think over the next, very short

period of time I will be announcing it. It won't be a shock," Trump said.

http://www.foxbusiness.com/politics/2017 /10/25/trump-exclusive-president-blasts-democr... 11/3/2017



JA 1530

Trump EXCLUSIVE: President blasts Democrats' dirty dossier play, hints at Fed choice j... Page 3 of 3

Trump expressed his admiration for current Fed Chair Janet Yellen but said the decision to

select a new head of the central bank is something to which he would like to contribute.

"You like to make your own mark which is maybe one of the things she's got a little bit against

her, but I think she is terrific. We've had a great talk and we are obviously doing great together,

you look at the markets," Trump said.

URL

http://www. fox business.com I po I itics/2O17 /10 /25/tru m p-exc I usive-p resi d ent-b lasts-d emocra ts-dirty-doss i er-play-hints-at-fedchoi ce. htm I

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James Madison Project v. Dep’t of Justice No. 1:17-cv-00144-APM Defendants’ Supplemental Submission and Further Response to Plaintiffs’ Post-Briefing Notices Ex. B


JA 1531


From the Press OfficeSpeeches & Remarks

Press Briefings

Statements & Releases

Nominations & Appointments

Presidential Actions

Legislation

Disclosures

For Immediate Release October 31, 2017

The White HouseOffice of the Press Secretary

Press Briefing by Press Secretary Sarah Sanders, 10/31/2017, #29

James S. Brady Press Briefing Room

2:37 P.M. EDT

MS. SANDERS: Good afternoon. Happy Halloween. I thought for sure I'd see some costumes today.

Q We're dressed as reporters.

the WHITE HOUSE PRESIDENT DONALD J. TRUMP

Page 1 of 13Press Briefing by Press Secretary Sarah Sanders, 10/31/2017, #29 | whitehouse.gov

11/5/2017https://www.whitehouse.gov/the-press-office/2017/10/31/press-briefing-press-secretary-sar...


JA 1532


MS. SANDERS: That's not nearly as exciting as what you could have come as, but we'll let it slide for today.

Today, I'm once again pleased to talk about the topic that we and, more importantly, the American people are all very excited about: tax cuts.

We're approaching the release of legislation based on the tax reform framework the President supports. Unfortunately, no matter how great the plan is for the hardworking families, Democrats are expected to criticize the tax cuts as they've done in recent years, putting partisan politics ahead of their constituents' pocketbooks.

While arguing over President Reagan's 1981 tax cuts, Democrats claimed it would only benefit the rich. The Democrat Speaker of the House at the time, Tip O'Neill, called them royal tax cuts, because he claimed they favored the wealthiest Americans.

What really happened was more than 14 million new jobs were created over five years; incomes grew by over 22 percent for the next seven years; and the economy grew by over 3.5 percent, on average, for the rest of the decade.

Some Democrats must have been paying attention to history, because as recently as last year, they publicly supported many of the principles for which the President is advocating today. That includes lowering the corporate tax rate, which is the highest among developed nations, so that our greatest businesses can be more competitive.

In fact, Presidents Obama and Clinton both advocated for cutting corporate tax rates. Senate Democrat Leader Chuck Schumer in the past called our tax system “upside down and inside out.” And last year, he actually admitted that cutting corporate taxes is “really important for American competitiveness.” Minority Leader Nancy Pelosi apparently agreed, because she said, “It is long past time for tax reform that would lower the corporate tax rate.”

The only thing that seems to have changed since then is who occupies the White House.

Since day one, the President has been committed to jumpstarting our economy and giving hardworking Americans the raise they deserve. Under the framework supported by the President, our economy will grow, businesses will invest back in




JA 1533


the country, and American workers will see their wages grow. In fact, the Council for Economic Advisers estimates that a typical, hardworking American family would get a $4,000 pay raise.

So to Democrats in Congress, particularly those who would like to place American jobs and middle-class tax relief ahead of partisan politics, the question is very simple: Do you believe the Americans people deserve a pay raise?

We certainly do. And that's what we'll be focused on and fighting for. The choice is yours.

And with that, I’ll take your questions.

Steve.

Q Sarah, where does the President stand on this tax deduction for state and local taxes? That seems to be in dispute up on the Hill.

MS. SANDERS: Look, we've laid out our priorities for the tax cut plan. Those haven’t changed. The President is going to continue working with both the House and the Senate to push forward and make sure that the principles he laid out are achieved. And we haven’t made any adjustments to that at this time.

Q But what about the mortgage interest deduction?

MS. SANDERS: Again, same point here: We haven’t made any changes to the priorities that we've laid out. I'm not going to negotiate between you and I. But the President is going to be involved in ongoing conversations with members of both the House and Senate, and we've laid out what our priorities are and we're going to stick to those as we move forward.

Q Has it come up in the conversation with Speaker Ryan just now?

MS. SANDERS: They're still meeting now, and we'll have a readout on that meeting once it's completed.

Matthew.

Q Thanks, Sarah. A question on yesterday's Mueller news. President Trump's nominee to serve as chief science advisor over at the Agriculture Department is Sam Clovis, and Clovis was the campaign supervisor cited in that Papadopoulos plea. And his lawyer has since acknowledged that he was the one in that plea who




JA 1534


encouraged Papadopoulos in August 2016 to make a trip to Russia to meet with Russia officials about the campaign.

Given all that, is the President still comfortable with him, Sam Clovis, serving in the administration?

MS. SANDERS: I'm not aware that any change would be necessary at this time.

Q And on that note, is the administration aware of who the other three or four campaign individuals who were referenced in that Papadopoulos plea were? And are any serving in or advising the administration?

MS. SANDERS: I'm not aware of the specific individuals. What I can say is that I think Papadopoulos is an example of actually somebody doing the wrong thing while the President's campaign did the right thing.

All of his emails were voluntarily provided to the special counsel by the campaign, and that is what led to the process and the place that we're in right, was the campaign fully cooperating and helping with that.

What Papadopoulos did was lie, and that's on him, not on the campaign. And we can't speak for that.

Jon.

Q The Chief of Staff, John Kelly, said that this counsel investigation has been very distracting to the President. Can you elaborate on that? Is this affecting his ability to get the job done here?

MS. SANDERS: I don’t think it's at all affecting his ability to get his job done. And that wasn’t the point he was making. You guys seem completely obsessed with this, while there are a lot of other things happening around the country, and, frankly, a lot of other things that people care a lot more about. The media refuses to cover it, and I think that's the distraction, instead of the focus being constantly on tax cuts and tax reforms.

My guess is, if you look at the records, the questions that I take in here day out have far more to do with an investigation that, frankly, most Americans don’t care too much about, and a whole lot less to do with policies that actually impact them.

Q Why are you so confident that the investigation won't go on much longer?




JA 1535


MS. SANDERS: Because we have confidence that it's going to come to a close in short time.

Glenn, go ahead. (Phone rings.) Glenn has got a call. Maybe he needed to phone a friend to get help with his question. (Laughter.)

Q Sarah --

MS. SANDERS: Glenn, I had more faith in you to be able to ask a question all by yourself, but --

Q The other thing that General Kelly said yesterday was in reference to General Lee, and he said that the Civil War was a result of a failure to compromise. Was he suggesting that there be compromise on the abolition of slavery? Can you expand on exactly what he was talking about?

MS. SANDERS: Look, all of our leaders have flaws -- Washington, Jefferson, JFK, Roosevelt, Kennedy. That doesn't diminish their contributions to our country, and it certainly can't erase them from our history. And General Kelly was simply making the point that just because history isn't perfect, it doesn't mean that it's not our history.

Q Let me follow up. You're a proud daughter of the South. When you see Nathan -- like a statue as they had in Memphis of somebody like Nathan Bedford Forrest, who was responsible for the Fort Pillow Massacre, and other folks like that, is there a differentiation? Do you think there are certain Confederate figures who don't deserved to be honored, like Nathan Bedford Forrest?

MS. SANDERS: Look, I don't think that we should sit here and debate every moment of history. I think those moments took place. There are moments that we're going to be a lot less proud of than others, but we can't erase the fact that they happened. I think you have to determine where that line is. The President has said that those are something that should be left up to state and local governments, and that's not who I'm here representing today, so I'm not going to get into the back and forth on it.

Jon.

Q Thanks a lot, Sarah. Just to follow up on what you said yesterday and what you have reiterated today about this investigation and your belief that it's going to be wrapping up soon. Yesterday, you said that, "Those are the indications that we have




JA 1536


at this time." From your point of view, is what you're saying wishful thinking? Is it spin? Are you getting leaked information that gives you that indication? Why do you continue to say that you believe that it is wrapping up soon?

MS. SANDERS: Again, that position has not changed, and we do think that it will wrap up soon. I didn't say it would be three or four days; I said soon. And we hope that that's the case, in large part because we know that the facts are on our side, there was no collusion. And we're looking forward to moving forward, and hoping that you guys can as well, and we can actually start talking about and focusing on some of the things that I mentioned to Jonathan that we feel the American people would rather the conversation be turned towards.

Jessica.

Q At the Papadopoulos hearing --

MS. SANDERS: Sorry, I'm going to keep moving.

Q I just want to ask you this one thing about one of the prosecutors that is on Bob Mueller's team. At the plea hearing for Mr. Papadopoulos last month, he hinted at the possibility of more to come in the investigation. He said the Mueller probe is "a large-scale, ongoing investigation of which this case" -- the Papadopoulos case -- "is a small part." So, given what he said, as an officer of the court, are you disagreeing with anything that he said in his remarks during that plea hearing?

MS. SANDERS: Maybe his reference is in looking more to come between the Democrats and the Clinton campaign, since I think if there's any evidence that we've seen to date, it's between them colluding with other foreign governments, certainly not from our side.

Jessica.

Q Sarah, I have one question about what the President said today, and then an Asia trip question, broadly. But the first question is: The President mentioned in the tax reform meeting there that he was going to be announcing "soon" some companies that are coming back to the United States. Can you either name them or give us the industry that we're talking about?

MS. SANDERS: You know I'm not going to get ahead of an announcement that the President is going to make. If he wasn't willing to tell you today, I'm certainly not going to step in and do it.




JA 1537


Q And then on the Asia trip, the speech that he's making at APEC is being billed as a theme for the trip as well as the Indo-Pacific. Does this administration see India as a pivotal part of your strategy when it comes to the Asia-Pacific more broadly?

MS. SANDERS: It certainly plays a big role, and General McMaster will be here later this week to discuss the trip in greater depth and more detail. And he'll be happy to address more of those questions at that time.

Q Sarah, the former White House strategist, Steve Bannon, is saying the administration should push back harder against Special Counsel Robert Mueller. Does the President support defunding the special counsel?

MS. SANDERS: No. And I'm not sure what we'd push back against since, so far, all they've done is come up with ways and shown more and more that there was no connection between the Trump campaign and collusion with Russia.

John.

Q Thank you, Sarah. Two questions, please. First, the President is quoted last year as calling Mr. Papadopoulos, and I quote, "a great guy." And today it was "a liar." And I wonder, just to kind of clear the air, how well did he actually know him? And was briefed by him often? Did he have frequent meetings? How well does he know this man?

MS. SANDERS: My understanding is the only interaction he ever had was the one meeting that the advisory council gathered together, where he was in a large group of other people in the room. And to my knowledge, that's the only interaction they ever had.

Again, this was a campaign volunteer. He wasn't somebody that was a senior advisor, as many of you want to bill him to be. He was somebody that played a minimal roll, if one at all, and was part of a voluntary advisory board. That's it.

Q And he only met the President -- candidate Trump, one time?

MS. SANDERS: That's my understanding, John. That's the only incident that we're aware of.

Q The other thing I wanted to ask was that a few weeks ago, when the President sent out Twitters about the media, he suggested that equal time be applied. Now, to many people, that was a euphemism for the Fairness Doctrine, something that




JA 1538


President Ronald Reagan helped eliminate and which Democrats, such as Leader Pelosi, have tried to revive. Is he seriously in favor of reviving the Fairness Doctrine? And I might add that its premier opponent of revival was a young congressman named Mike Pence.

MS. SANDERS: I don't know that he's into the deep weeds of the Fairness Doctrine, but I know he certainly believes in fairness. And I think that he would like to see that applied, certainly, to his administration in a way that it probably hasn't been so far.

Charlie.

Q The President -- sorry, Republican Senate candidate Roy Moore is on Capitol Hill today. Does the President have plans to meet with him at any point today or this week before he leaves for Asia?

MS. SANDERS: No, there's no planned meetings at this time.

Q Sarah, there is still a lot to be negotiated on taxes -- SALT, which was just brought up; possible phasing in of the corporation rate, just to name a couple. When the tax bill -- whatever of it -- is released tomorrow, will the President wholeheartedly endorse this as his plan?

MS. SANDERS: As of right now, we see no reason to feel otherwise. But until we see the details of that, I'm not going to speculate on where we are. We've laid out what our principles are, and we expect that that piece of legislation to reflect those principle. If it does, you'll certainly see the administration come in with full-throated support.

Q And lastly, on the Fed -- I know you're not going to give us a name. I'm not asking you to give us a name.

MS. SANDERS: But what If I did, wouldn’t it be fun? (Laughter.)

Q Then we would love the name.

Q Come on --

MS. SANDERS: That's the most excitement we've ever gotten out of this room. (Laughter.) Sorry.

Q If you want to give us a name, we will take it. If not, my simple question is: Has the President made his decision, or is he still debating it?




JA 1539


MS. SANDERS: I can tell you that it's not Major Garrett. (Laughter.) But beyond that, I don't have anything to weigh in on.

go ahead.

Q President Trump, during the campaign, repeatedly castigated Hillary Clinton for not coming forward and coming clean when she got debate questions ahead of the debates. Why didn't anyone in the Trump campaign, including his son, come forward when there were solicitations from Russian agents to provide dirt on his opponent?

MS. SANDERS: I'm not sure how those two things are even remotely related, so I couldn't begin to figure out how to answer that question.

Q I'm just getting to the sense of the proactive duty to come clean when there is an ethical question. And is the President upset that people in campaign did not come clean when there were ethical questions and ethical lines being broached?

MS. SANDERS: I don't believe that to be an ethical question. That's a pretty standard campaign operating procedure.

Q Collaborating with the Russians is?

MS. SANDERS: That's not collaboration with the Russians. Sorry, Noah. I know you want it to be, but it just isn't.

Go ahead, Mara.

Q I have two questions. The first one is: You've been very clear that Trump didn't collude but Hillary did. What is your definition of collusion?

MS. SANDERS: Well, I think the exchanging millions of dollars to create false information is a pretty big indication. I think taking millions of dollars into a foundation that benefits you while making decisions that impact people that gave that money, I think those are certainly areas of collusions that should certainly be looked at.

Q And my second question is about --

MS. SANDERS: Steven. Sorry.




JA 1540


Q Just to follow up from Glenn. Robert E. Lee aside -- and I understand your point about how all leaders have flaws -- but what Kelly said yesterday was that an inability to compromise led to the Civil War. And back in the spring, the President said that he thinks that Andrew Jackson could have made a deal to avert the war. What is the compromise that they're talking about? To leave the southern states slaves and the northern states free? What was the compromise that could have been made?

MS. SANDERS: I don't know that I'm going to get into debating the Civil War, but I do know that many historians, including Shelby Foote, in Ken Burns' famous Civil War documentary, agreed that a failure to compromise was a cause of the Civil War. There are a lot of historians that think that, and there are lot of different versions of those compromises.

I'm not going to get up here and re-litigate the Civil War. But there are certainly, I think, some historical documentation that many people -- and there's pretty strong consensus from people from the left, the right, the north, and the south -- that believe that if some of the individuals engaged had been willing to come to some compromises on different things, then it may not have occurred.

Q Thanks, Sarah. Apropos what's going on on the Hill this afternoon, and Facebook disclosing yesterday that more than 100 million Americans were apparently exposed to what amounts to Russian propaganda, what's the White House's view of that notion, that more than 100,000 people have been reading and watching what this Russian outlet has been putting out?

And what do you make of the notion that there ought to be some kind of requirement that Facebook be required to disclose -- the way that many broadcasters are required to disclose -- when political ads are made?

MS. SANDERS: I think we need to see how this process works out over the next several days. And some of those questions are things that you're going to have to ask Facebook. That's not something that the federal government can weigh in on at this point, until the findings of that investigation and those hearings are completed.

Hallie.

Q Sarah, I'd like you to follow up on something you said earlier, but I also want to follow up on the conversation that's been happening about the slavery compromise. I'm not asking you to re-litigate the Civil War. We don't need a history




JA 1541


lesson on the compromises that have happened. But does the White House at least acknowledge that the Chief of Staff's comments are deeply offensive to some folks, and historically inaccurate?

MS. SANDERS: No. Because as I said before, I think that you can't -- because you don't like history, doesn't mean that you can erase it and pretend that it didn't happen. And I think that's the point that General Kelly was trying to make. And to try to create something and push a narrative that simply doesn’t exist is just, frankly, outrageous and absurd.

I think the fact that we keep trying to drive -- the media continues to want to make this and push that this is some sort of a racially charged and divided White House -- frankly, the only people I see stoking political racism right now are the people in the groups that are running ads like the one you saw take place in Virginia earlier this week. That's the type of thing that I think really is a problem. And I think it is absurd and disgraceful to keep trying to make comments and take them out of context to mean something they simply don't.

Q There's a new poll out that shows that the public seems to trust many of the mainstream media outlets that the President criticizes more than they trust the President himself. Why do you think this would be? And do you think the White House agrees with that?

MS. SANDERS: I haven't seen anything to suggest that. I'd have to look into it. I certainly can't comment on some study I know nothing about and don't agree with.

Q Sarah, given some of the criticism we've heard from the President's outside advisors, is the President happy with his legal team right now? Does he feel well-represented, well-defended when it comes to the Mueller probe particulars?

MS. SANDERS: I'm not sure how he couldn't, considering -- as I said yesterday and I've repeated several times today -- all of the revelations that have taken place over the last several days and hours have nothing to do with the President, have nothing to do with his campaign. And I think the further we get into it, the more and more we see that happening.

Kevin.

Q Thank you, Sarah. I just wanted to ask about taxes and then maybe just a very quick follow on the discussion about compromise. If I'm understanding you




JA 1542


correctly, what you're really saying is, he's not just suggesting a compromise on slavery, he's talking about other compromises that may have been germane to that period of history. Is that fair?

MS. SANDERS: Look, I think that was part of the conversation that a lot of people have had. He didn't get into the specifics because that's something that's been discussed very widely by many historians, again, from both the left, the right, the north, the south -- however you want to look at it. And he didn't get into the details of it because it wasn't the point he was making.

Q On taxes. I just want to get a sense of what the President might really be interested in as far as the child tax credit and as far as the Obamacare individual mandate. Is it your opinion that the President would be supportive of both? Meaning, that they need to be a major tenet of the tax reform that will be unveiling this week?

MS. SANDERS: He certainly supports the childcare tax credit. I'm sorry, what was the other piece you were asking?

Q The Obamacare individual mandate. Does that have to be a part of tax reform?

MS. SANDERS: I don't believe it has to be part of tax reform, but the childcare tax credit is something he'd certainly like to see.

I'll take one last question.

Major.

Q Sarah, you said to us a few moments ago the Papadopoulos plea agreement is an example of an individual doing the wrong thing but the campaign doing the right thing -- if I remember what you said -- correct me. Does that extend to Sam Clovis encouraging George Papadopoulos to go to Russia on behalf of the campaign to solicit information?

MS. SANDERS: My understanding is there wasn't encouragement. He made multiple attempts at setting up a variety of meetings that were constantly rebuffed. He also made false statements to investigators. That's something that the campaign nor the administration would ever support. All of his emails, again, were voluntarily provided to the special counsel by the campaign, and that is how they got to the place that they're in right now.




JA 1543


Q Are you saying that Clovis is being misinterpreted by George Papadopoulos?

MS. SANDERS: I'm not getting into the detail of that. I'm talking specifically about the multiple attempts that he made in setting up a variety of meetings. There were more than one instance in which he tried to set up meetings that were rebuffed by the campaign. He lied about a lot of those activities, and that is the place that you, I think, see come through in the emails that were voluntarily turned over.

Q Let me ask you about one thing you said yesterday. You were asked at one point during yesterday's briefing when the President became aware that Russia was behind hacking and possession of emails. You said, "I'm not sure of the specific date of when that took place, so I'd have to look and get back to you."

MS. SANDERS: Yeah. I can respond to that now. The President was briefed in a pretty widely publicized meeting back in January. Later that very day, he said publicly that he had received the intelligence briefing and he believed Russia was behind the email hacks.

Thanks so much guys. I hope you have a happy and safe Halloween.

END

2:59 P.M. EDT

HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN

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James Madison Project v. Dep’t of Justice No. 1:17-cv-00144-APM Defendants’ Supplemental Submission and Further Response to Plaintiffs’ Post-Briefing Notices Ex. C


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JA 1548

Sharyl: Do you think you would ever consider trying to have Mueller removed are you planning to stay out of that?

President Trump: Well I hope he's treating everything fairly and if he is I'm going to be very happy because when

you talk about innocent I am truly not involved in any form of collusion with Russia. Believe me. But the last thing I

can think of to be involved in.

Sharyl: Who wasn't you remember who convinced you to take Paul Manafort on as the campa ign manager?

President Trump: Well it was a friend of mine who was a businessman very successful businessman and a good

person. And you know Paul was not there very long. What people don't mention Paul was not there for a very long

period of time.

Sharyl: What was it that convinced him that he had to be let go?

President Trump: Well I think we found out something about him may be involved with or with certain nations and

I don't even know exactly what it was in particular but there was a point at which we just felt Paul would be better

off because we don't want to have any potential conflicts. And if there was a conflict I don't want to be involved in

any conflicts even though it was I could have kept them longer. I don't think anybody would have complained. But

we don't want to have any potential conflicts of interest at all.

Sharyl: Have you questioned why the businessman who brought you h is name do you want to say that that is.

President Trump: I don't want to get him involved he's a private person.

Sharyl: Have you questioned why he brought him to the campaign or you think that was just it just happened in a

way.

President Trump: Look people don't realize Paul Monfort worked for Ronald Reagan. He worked for Bob Dole. I

think the firm was involved with many people I don't have to mention names but I heard they were involved with

John McCain who's an honorable guy. They were involved with many people I mean many many people. I certainly

wasn't the first. This was a firm that was well known in Washington for years and represented many many big

people politically speaking. And Ronald Reagan being number one. So the reputation I a lways felt was very good

and I had him for a very short period of time you know he was only in there for a very finite period of time. But you

know I feel badly for him because I was going to be really a very nice person.

Sharyl: Last Question on this topic have you been told to expect to be questioned by the special counsel. Are you

prepared for that?

President Trump: No. Nobody's told me. As far as I'm concerned I have been told that we were under

investigation. I'm not under investigation. You know when it comes to Russia collusion. They're looking at the

wrong person absolutely the wrong person. So I don't even to the best of my knowledge my lawyers told me I'm

not even under investigation. I have not been told that at all.



JA 1549

Sharyl: On Terrorism. You've just called for an end to the diversity lottery visa that allows Sayfullo Saipov into the

U.S. what would replace it what's your idea in a nutshell?

President Trump: Why don't think replace it. I think that the whole element. Are you talking about the lottery

system. It's a ridiculous thing. We do we take it like a lottery like who knows who they put in there. And I

guarantee you these countries they don't put their finest in the lottery system. They put people probably in man>

cases that they don't want. Why is this country doing it . The lottery system has to end. And what we want Sharyl

we want it very badly and we want it you know as far as immigration is concerned we've been treated so badly

and we've handled immigration prior to me because we have been very tough on it but we've handled

immigration in the United States so poorly. We want a merit-based system

Sharyl: When it comes to Islamic extremist terrorism. Do you think Americans are safer today than they were a

year ago two years ago?

President Trump: I think we are. I think that we have a much tougher vetting process. I call it extreme vetting. WE

are very strong with our vetting. But people can slip through. But I say as strong as we are we have to get

stronger. This person came in through a lottery and not only came in through a lottery but you have this whole

system where you can bring people with you chain migration it's horrible it's horrible. Somebody had mentioned

he may have brought. And he only had a green card. But twenty three people may have come in indirectly or

d irectly through him. Now I don't want those people and family members whoever they may be I don't want ther

and you saw what he did and you saw h is evilness because they go back to the town or they go back to the area

where he grew up not where he's lived even you go back to the country as I understand it. I mean this is not the

kind of people we want in the United States so we have to get rid of chain migration.

Sharyl: I feel like ordinary Americans every t ime there's another terrorist attack or a similar pathology they start

to feel helpless now that there's been tough talk for years and yet nothing concrete they can point to that will

prevent another one. I think some people are actually adjusting their expectations and thinking this is our new

way of life.

President Trump: I know they are in a lot of people do that. And frankly the Democrats have been absolutely

terrible on immigration because they want anybody to come in. You know they obstruct make it very tough and

they want on immigration and crime. I mean they want people to just pour in over the border. That's not going t<

happen. And we're stopping it. Now we want a merit-based system. I don't want people to come into our countr}

but it's got to be a merit-based system and we can take that for the norm. What you just said we cannot just sa>

oh well it's going to happen let's get used to it. We cannot allow it to happen. And we're getting I can tell you thE

Trump administration is getting tougher and tougher and tougher and we are now as you know looking at

d ifferent forms of the wall. The wall is going to happen. The vetting is now at a point that is the toughest it's eve1

been and we're now going to make it even tougher. But this person this animal that did what he d id in the West

Side of Manhattan we just can't allow this to continue.


EXHIBIT I


JA 1550

Representative K. Michael Conaway 2430 Rayburn House Office Building Washington, D.C. 20515

Representative Adam Schiff 23 72 Rayburn House Office Building Washington, D.C. 20515

THE WHITE HOUSE

WASHINGTON

June 23, 2017

Dear Congressman Conaway and Ranking Member Schiff:

I write in response to the letter dated June 9, 2017, from the House Permanent Select Committee on Intelligence (Committee) requesting that the White House inform the Committee whether records exist memorializing conversations between President Donald J. Trump and the former Director of the Federal Bureau oflnvestigation, James Corney.

In response to the Committee's inquiry, we refer you to President Trump's June 22, 2017, statement regarding this matter: "With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are 'tapes' or recordings of my conversations with James Corney, but I did not make, and do not have, any such recordings."

Respectfully,

1V/M0~UN Marc T. Short Assistant to the President for Legislative Affairs

Cc: Senator Richard Burr, Chairman, Senate Select Committee on Intelligence Senator Mark Warner, Vice Chairman, Senate Select Committee on Intelligence


EXHIBIT J


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JA 1571


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JA 1573


in the united states court of appeals for …. 17-2231(l), 17-2232, 17-2233, 17-2240 (consolidated)...

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