FOIA Cases

EPIC v. DOJ (The Mueller Report)

Case No. 19-810 (2019)

US District Court for the District of Columbia

DOWNLOAD EPIC-v-DOJ-19-810-Complaint-032219.pdf pdf 248.7KB

On March 22, 2019, EPIC filed a Freedom of Information Act lawsuit—the first in the country—to obtain the complete final report by Special Counsel Robert S. Mueller concerning Russian interference in the 2016 U.S. presidential election. The public has a right to know the full scope of Russian efforts to disrupt the 2016 election and whether the President of the United States played any role such efforts. The public also has a right to know whether the President unlawfully obstructed any investigation into Russian election interference or related matters. The Mueller Report and related Special Counsel records are vital to the public’s understanding of these issues and to the integrity of the political system of the United States.

On March 29, 2019, EPIC moved for a preliminary injunction compelling the Department of Justice to process EPIC’s FOIA Request on an expedited basis. The agency granted expedited processing in response, yet it still refused to release the report promptly. The DOJ filed an opposition to EPIC’s motion on April 5, and EPIC filed a reply on April 8. On April 9, Judge Reggie B. Walton held a hearing on EPIC’s motion. Judge Walton emphasized that the contents of the Mueller Report are an “extremely important subject matter to the nation” and said that the DOJ should disclose the records sought by EPIC “as expeditiously as humanly possible.” Although Judge Walton denied EPIC’s motion without prejudice, he scheduled a hearing for May 2 to further review the DOJ’s release of the Mueller Report and related records.

On April 18, 2019, Attorney General Barr released a version of the Mueller Report containing extensive redactions. Later that day, EPIC urged the Court to review the report on an expedited basis to determine what information must still be released. EPIC also informed the Court that it did not oppose the consolidation of a second FOIA suit for the Mueller Report (brought by Jason Leopold and BuzzFeed News) with EPIC v. Department of Justice. On April 22, the Court consolidated the cases. On May 3, the Court set an expedited briefing schedule for the parties’ cross-motions for partial summary judgment. On May 6, the DOJ disclosed to EPIC a newly annotated version of Mueller Report that identifies the specific FOIA exemptions the agency is asserting to withhold portions of the report.

On June 3, 2019, the DOJ moved for partial summary judgment with respect to the Mueller Report. On June 24, EPIC and Leopold/BuzzFeed cross-moved for summary judgment. The DOJ filed a reply on July 12, and the Plaintiffs filed a combined reply on July 19. The parties argued the case before Judge Walton on August 5. On December 10, EPIC urged the Court to order reprocessing of the Mueller Report in light of several major developments, including the conclusion of Roger Stone’s trial. The Court held a hearing on EPIC’s request on December 18 but declined to order reprocessing at that time.

Meanwhile, the Court also ordered the DOJ to produce records responsive to the remaining categories of EPIC’s FOIA request. On September 12, the DOJ disclosed four pages of records to EPIC consisting of budget requests from the Special Counsel’s Office. On October 10, the DOJ released seven additional pages of material to EPIC, including a report that describes a previously-unknown investigation of a suspected “unregistered agent of a foreign government.” On February 7, 2020, the DOJ confirmed to EPIC that Special Counsel Mueller did not draft any reports specifically for members of Congress.

On March 5, 2020, the Court issued a ruling on the parties’ cross-motions for summary judgment that sharply criticized Attorney General Barr’s selective disclosure of the Mueller Report and ordered the Government to turn over the complete, unredacted report by March 31 for in camera review by Judge Walton. “Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification,” Judge Walton wrote. “Adherence to the FOIA’s objective of keeping the American public informed of what its government is up to demands nothing less.”

In June and September 2020, the DOJ released two additional rounds of undisclosed material from the Mueller Report to EPIC. On September 30, the Court ordered the DOJ to release still more material from the Report that had had been unlawfully withheld as “predecisional.” On November 2, the DOJ released reprocessed versions of the Report including all of the new passages the agency had been forced to disclose (Volume 1, Volume 2, & Appendices). In April 2021, EPIC and the DOJ reached a settlement as to attorney’s fees in EPIC’s case. In January 2022, pursuant to the D.C. Circuit’s ruling in an appeal brought by Jason Leopold and BuzzFeed News, Judge Walton ordered several additional disclosures from the Report by February 25.

Background

EPIC’s FOIA Request, and the Special Counsel investigation to which it pertains, arise out of the Russian government’s coordinated campaign to interfere with the 2016 U.S. presidential election.

Russian Interference in the 2016 U.S. Presidential Election

In 2016, the Russian government carried out a multi-pronged attack on the U.S. presidential election to destabilize U.S. democratic institutions and to aid the candidacy of Donald J. Trump. As explained in the declassified 2017 Intelligence Community Assessment (“ICA”) on Russian election interference:

We assess with high confidence that Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election, the consistent goals of which were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. When it appeared to Moscow that Secretary Clinton was likely to win the election, the Russian influence campaign then focused on undermining her expected presidency.

We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.

The ICA—along with the reports, investigations, and prosecutions that have ensued—establishes that Russia interfered with the 2016 election on at least four fronts.

First, “Russia’s intelligence services conducted cyber operations against targets associated with the 2016 US presidential election, including targets associated with both major US political parties.” These operations included the “exfiltrat[ion of] large volumes of data” from the Democratic National Committee (“DNC”) and “the compromise of the personal e-mail accounts of Democratic Party officials and political figures.”

Second, Russian intelligence services “used the Guccifer 2.0 persona, DCLeaks.com, and WikiLeaks to release US victim data obtained in cyber operations publicly and in exclusives to media outlets.” These disclosures included data extracted by Russian intelligence from DNC networks. Subsequent investigation has also revealed that senior Trump campaign officials engaged in multiple meetings with Russian intermediaries offering to provide “dirt” on Hillary Clinton, including “thousands of emails” obtained by Russia.

Third, “Russian intelligence accessed elements of multiple state or local electoral boards” in an ongoing effort to assess “US electoral processes and related technology and equipment.”

Fourth, “Russia’s state-run propaganda machine—comprised of its domestic media apparatus, outlets targeting global audiences such as RT and Sputnik, and a network of quasi-government trolls—contributed to the influence campaign by serving as a platform for Kremlin messaging to Russian and international audiences.” As part of this propaganda push, the Russian government spent millions of dollars and employed hundreds of people to flood Facebook and Twitter with fraudulent users, posts, articles, groups, and targeted advertisements.

In the two years since the Intelligence Community Assessment was published, the ICA’s findings have been repeatedly confirmed by federal inquiries and investigative reporting. The Senate Intelligence Committee, after an “an in-depth review” of the ICA and associated intelligence, determined that “the conclusions of the ICA are sound” and noted “that collection and analysis subsequent to the ICA’s publication continue to reinforce its assessments.”

Criminal Investigations Into Russian Election Interference

On January 20, 2017—two weeks after the public release of the Intelligence Community Assessment—Donald J. Trump was inaugurated as the 45th President of the United States.

On March 2, 2017, then-Attorney General Jeff Sessions, who had been a prominent supporter of Mr. Trump during the campaign, recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” As a result, the responsibilities of the Attorney General for any such investigation passed to the Deputy Attorney General.

On March 20, 2017, James B. Comey, then-Director of the Federal Bureau of Investigation (“FBI”), confirmed to the House Permanent Select Committee on Intelligence that the FBI was conducting an investigation into “the Russian government’s efforts to interfere in the 2016 presidential election,” including “the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.” Mr. Comey noted that the investigation would include “an assessment of whether any crimes were committed.”

On May 9, 2017, President Trump removed Director Comey from office and terminated his employment. Two days later, in a nationally televised NBC News interview, President Trump stated:

I was going to fire Comey knowing, there was no good time to do it. And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should have won.

On May 17, 2017, Deputy Attorney General Rod J. Rosenstein—in his capacity as Acting Attorney General—appointed Robert S. Mueller III “to serve as Special Counsel for the United States Department of Justice.” Mr. Rosenstein authorized Mr. Mueller to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017,” including “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”; “any matters that arose or may arise directly from the investigation”; and, “any other matters within the scope of 28 C.F.R. § 600.4(a).” Mr. Rosenstein also authorized Mr. Mueller “to prosecute federal crimes arising from the investigation of these matters” where “it is necessary and appropriate[.]”

Over the course of Mr. Mueller’s investigation, the Special Counsel brought criminal charges against 34 individuals and three organizations, including:

  • Former National Security Adviser Michael Flynn, who pleaded guilty to making false statements to the FBI;
  • Former Trump campaign manager Paul Manafort, who was convicted of multiple counts of tax fraud and bank fraud and pleaded guilty to conspiracy against the United States and other charges;
  • Former Trump deputy campaign manager Rick Gates, who pleaded guilty to conspiracy against the United States and making a false statement to the FBI;
  • Former Trump campaign foreign policy adviser George Papadopolous, who pleaded guilty to making false statements to the FBI;
  • Former Trump personal attorney Michael Cohen, who pleaded guilty to making false statements to Congress;
  • Former Trump campaign advisor Roger Stone, who was indicted on charges of obstruction of justice, making false statements to Congress, and witness tampering;
  • The Internet Research Agency, Concord Management and Consulting LLC, Concord Catering, and thirteen Russian nationals, who are charged with conspiracy against the United States and related offenses for flooding social media platforms with fraudulent content to interfere with U.S. political processes; and
  • Twelve other Russian nationals, who are charged with conspiracy to commit computer crimes and other offenses for hacking Democratic Party computer networks and email accounts linked to the Clinton campaign.

On November 7, 2018, Attorney General Sessions resigned from office. President Trump designated Matthew G. Whitaker, Chief of Staff to the Attorney General, to serve as Acting Attorney General. Although Mr. Whitaker had been a prominent critic of Mr. Mueller’s probe prior to assuming office, Whitaker “decided not to recuse himself from the Special Counsel investigation.”

In December 2018, President Trump nominated former Attorney General William P. Barr to serve again as Attorney General. Six months earlier, Mr. Barr had sent a memo to senior DOJ officials in which Barr strongly criticized the direction of the Special Counsel investigation and stated that Mr. Mueller’s “obstruction theory” concerning President Trump’s firing of Director Comey “should be rejected[.]” Mr. Barr was confirmed by the Senate as Attorney General on February 14, 2019.

The Mueller Report(s)

On March 22, 2019, Attorney General Barr confirmed that Mr. Mueller had delivered the Special Counsel’s final report concerning Russian interference in the 2016 presidential election. That report is required by 28 C.F.R. § 600.8(c):

(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

EPIC’s FOIA Request calls for the public disclosure of this final report. However, the Special Counsel is permitted or required to disclose information about its investigation by other means, as well. Under 28 C.F.R. § 600.8(a)(2), the Special Counsel must provide annual status reports to the Attorney General:

(2) Thereafter, 90 days before the beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status of the investigation, and provide a budget request for the following year. The Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.

Under 28 C.F.R. § 600.7(b), the Attorney General may request an explanation for any investigative or prosecutorial step taken by the Special Counsel:

(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

Under 28 C.F.R. § 600.9(a), the Attorney General is required to notify certain members of Congress of key developments in the Special Counsel’s investigation:

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action —
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

Under 28 C.F.R. § 600.4(c), the Special Counsel may take “necessary action” to pursue penalties “outside the criminal justice system” in consultation with the Attorney General:

(c) Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General.

The Special Counsel may also use his or her “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney” to transmit “report[s],” “recommendation[s],” or other “compilation[s] of information” to Congress via the grand jury process. This procedure was used by Special Counsel Leon Jaworski in 1974 to convey “material in the Grand Jury’s possession having a material bearing on matters within the primary jurisdiction of the United States House of Representatives Committee on the Judiciary relating to questions of impeachment.”

Finally, the Special Counsel and/or Attorney General may rely on their general powers under 28 C.F.R. § 600.1 et seq. (and other authorities) to disclose developments, evidence, findings, decisions, actions, or planned actions from the Special Counsel’s investigation.

EPIC’s FOIA Request

On November 5, 2018, EPIC submitted an urgent FOIA Request to the DOJ seeking fourteen categories of records related to the Special Counsel’s investigation into Russian interference in the 2016 U.S. presidential election:

(1)(a) All “report[s]” and “closing documentation” prepared under 28 C.F.R. § 600.8(c), whether or not such records were actually provided to the Attorney General or Acting Attorney General;

(1)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned “report” or “closing documentation” under 28 C.F.R. § 600.8(c);

(2)(a) All “report[s]” concerning “the status of the investigation” prepared under 28 C.F.R. § 600.8(a)(2), whether or not such records were actually provided to the Attorney General or Acting Attorney General;

(2)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned “report” concerning “the status of the investigation” under 28 C.F.R. § 600.8(a)(2);

(3)(a) All records “expla[ining] . . . any investigative or prosecutorial step” under 28 C.F.R. § 600.7(b), whether or not such records were actually provided to the Attorney General or Acting Attorney General;

(3)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned “explanation for any investigative or prosecutorial step” under 28 C.F.R. § 600.7(b);

(4)(a) All records prepared under 28 C.F.R. § 600.9(a) to “notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” of a development in the Special Counsel investigation, whether or not such records were actually transmitted to any member of Congress;

(4)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned notification under 28 C.F.R. § 600.9(a);

(5)(a) All referrals by the Special Counsel, Attorney General, or Acting Attorney General for “administrative remedies, civil sanctions or other governmental action outside the criminal justice system” under 28 C.F.R. § 600.4(c), whether or not such records were actually transmitted to any party outside of the Special Counsel’s Office;

(5)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned referral for “administrative remedies, civil sanctions or other governmental action outside the criminal justice system” under 28 C.F.R. § 600.4(c);

(6)(a) All “report[s],” “recommendation[s],” and other “compilation[s] of information” prepared for the eventual consideration of one or more members of Congress, whether or not such records were actually transmitted to any party outside of the Special Counsel’s Office;

(6)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned report, recommendation, or compilation of the type described in Category (6)(a) of this request;

(7)(a) All other reports summarizing or describing, for one or more persons outside of the Special Counsel’s Office, (i) any of the Special Counsel’s evidence, findings, decisions, actions, or planned actions, or (ii) any developments in the Special Counsel investigation; and

(7)(b) All drafts, outlines, exhibits, and supporting materials associated with any actual or planned report of the type described in Category (7)(a) of this request.

EPIC sought expedited processing of its FOIA Request owing to the extraordinary importance of the records requested and the public interest in their disclosure.

Despite overwhelming public interest in the immediate disclosure of the requested records, the DOJ claimed that it could not “identify a particular urgency to inform the public about an actual or alleged federal government activity beyond the public’s right to know about government activities generally.”

Accordingly, on March 22, 2019, EPIC filed suit against the Department of Justice to compel disclosure of the requested Special Counsel records concerning Russian interference in the 2016 presidential election.

EPIC’s Interest

EPIC’s suit for the disclosure of Special Counsel records is part of EPIC’s Democracy and Cybersecurity Project, launched in 2017 in response to reports of Russian interference in the 2016 U.S. presidential election. EPIC’s Project is focused on preserving and promoting democratic institutions.

EPIC has brought numerous FOIA requests and lawsuits as part of the Democracy and Cybersecurity Project. In EPIC v. FBI, EPIC obtained records revealing the FBI’s failure to follow its own victim notification procedures in response to Russian cyberattacks against U.S. officials and U.S. political organizations. In EPIC v. DHS, EPIC obtained records detailing the Department of Homeland Security’s response to Russian cyberattacks on election infrastructure. In EPIC v. ODNI, EPIC brought suit to obtain the full Intelligence Community Assessment of Russian interference in the 2016 election. And in EPIC v. IRS and EPIC v. IRS II, EPIC brought suit to obtain certain of President Trump’s individual and business tax records to determine the scope of the President’s Russian financial entanglements.

EPIC v. Dep’t of Justice, No. 19-810 (D.D.C. filed Mar. 22, 2019)

FOIA Documents

Leopold v. Dep’t of Justice, No. 19-957 (D.D.C. filed Apr. 4, 2019)

On April 4, 2019, Jason Leopold and Buzzfeed Inc. filed a second FOIA suit against the Department of Justice to obtain the Mueller Report.

United States v. Michael T. Flynn, No. 17-232 (D.D.C. filed Nov. 30, 2017)

On November 30, 2017, the U.S. government brought a criminal case against President Trump’s former National Security Advisor, Michael Flynn for making false statements to FBI agents about his communications with Russian ambassador Sergey Kislyak.

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