EPIC v. DOJ (The Mueller Report)

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. 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 additional pages of records to EPIC consisting of budget requests from the Special Counsel's Office.

Top News

  • Senate Report Confirms Russia Interfered in 2016 Election: The Russian government “sought to influence the 2016 U.S. presidential election” as part of a “broader, sophisticated, and ongoing information warfare campaign designed to sow discord in American politics and society,” according to a report from the Senate Intelligence Committee. The bipartisan report confirms earlier findings by the U.S. Intelligence Community, Special Counsel Robert Mueller, and the Intelligence Committee itself. In EPIC v. Department of Justice, EPIC is seeking the disclosure of the complete and unredacted Mueller Report, which would provide further information about Russian election interference. A ruling is expected in the case this month. The book EPIC v. DOJ: The Mueller Report is available for purchase at the EPIC Bookstore. (Oct. 8, 2019)
  • More top news »
  • In EPIC Case, Justice Department Seeks to Delay Release of Mueller Report » (Apr. 5, 2019)
    In response to EPIC’s lawsuit seeking the Special Counsel Report—the Mueller Report—on Russian interference in the 2016 election, the Justice Department has filed an opposition to delay release of the report. EPIC filed the first lawsuit in the nation for the release of the Report. In EPIC’s motion for an injunction, EPIC explained that the public "remains in the dark as to the most consequential government investigation in recent history." After filing the lawsuit, EPIC offered to withdraw its motion if the Justice Department would promptly release the Mueller Report. The Justice Department agreed to expedite processing but declined to release the Report. In the court filing, the Justice Department acknowledged that there are over 400 pending FOIA requests related to the report of the Special Counsel. A hearing is scheduled before Judge Reggie Walton Tuesday morning at 9:00 at the U.S. District Court for the District of Columbia. EPIC's case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.).
  • Report: FBI Victim Notification Procedures ‘Unreliable’ and ‘Incomplete’ » (Apr. 1, 2019)
    The FBI’s system for notifying victims of cyberattacks is “unreliable” and “incomplete,” according to a report by the Inspector General for the Department of Justice. The IG report found that “not all victims were informed of their rights as required by” DOJ guidelines, which are “outdated since they do not consider the needs of victims of cybercrime.” In 2017, EPIC obtained through EPIC v. FBI, a FOIA lawsuit, the FBI Victim Notification Procedures that should have applied to Russian cyberattacks during the 2016 Presidential election. The FBI Notification Procedures made clear that notification should occur “even when it may interfere with another investigation or (intelligence) operation.” The records obtained by EPIC led to Associated Press investigation ("FBI gave heads-up to fraction of Russian hackers’ US targets”), which found that the FBI did not follow the Procedures and failed to notify U.S. officials that their email accounts were compromised. The EPIC Democracy and Cybersecurity Project has pursued multiple FOIA cases concerning Russian interference with the 2016 election, including EPIC v. DOJ (the Mueller Report), EPIC v. ODNI (Russian hacking), EPIC v. IRS I release of Trump's tax returns), EPIC v. IRS II (release of Trump business tax records), and EPIC v. DHS (election cybersecurity).
  • EPIC Seeks Injunction for Expedited Release of Mueller Report » (Mar. 29, 2019)
    EPIC has filed a motion for a preliminary injunction to secure the expedited release of the Mueller Report and other records concerning Russian interference in the 2016 presidential election. EPIC filed suit against the Department of Justice last week after the agency failed to process EPIC’s Freedom of Information Act request. In the motion for an injunction, EPIC explained that "Few, if any, government documents in the recent history of the United States have commanded more attention than the Mueller Report,” yet the public "remains in the dark as to the most consequential government investigation in recent history." The EPIC Democracy and Cybersecurity Project has pursued multiple FOIA cases concerning Russian interference with the 2016 election, including EPIC v. FBI (response to Russian cyberattacks), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), EPIC v. IRS II (release of Trump business tax records), and EPIC v. DHS (election cybersecurity). The case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.).
  • EPIC Files First Lawsuit for Special Counsel Report on Russian Election Interference » (Mar. 22, 2019)
    EPIC has filed a Freedom of Information Act lawsuit to obtain the final report by Special Counsel Robert Mueller concerning Russian interference in the 2016 U.S. presidential election. Attorney General William Barr notified Congress on Friday that the Special Counsel had delivered the final report. In November 2018, EPIC submitted a detailed Freedom of Information Act request to the Department of Justice seeking records about the investigation. The Special Counsel was authorized to conduct an investigation into Russian interference, including "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." Special Counsel Mueller has since brought criminal charges against 34 individuals and three organizations. EPIC, through its Democracy and Cybersecurity Project, has pursued multiple FOIA cases concerning Russian interference with the 2016 election, including EPIC v. FBI (response to Russian cyberattacks), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), EPIC v. IRS II (release of Trump's offers-in-compromise), and EPIC v. DHS (election cybersecurity). The case for the release of the Mueller Report is EPIC v. DOJ, No. 19-810 (D.D.C.) [Exhibits].
  • Intelligence Chiefs: New Threats to Democratic Institutions » (Feb. 4, 2019)
    In a hearing last week, the chiefs of the U.S. intelligence agencies told Senators that foreign adversaries will "increasingly use cyber capabilities" to "seek political, economic, and military advantage." The intelligence leaders further stated that foreign powers are "already looking to the 2020 election" in order to advance their interests, and that those powers will "almost certainly" target online operations to weaken democratic institutions. After the 2016 election, EPIC launched a project on Democracy and Cybersecurity to safeguard democratic institutions. EPIC filed a series of Freedom of Information Act lawsuits to determine the extent of Russian interference: EPIC v. FBI (cyberattack victim notification), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), and EPIC v. DHS (election cybersecurity). EPIC has said, "The public has a right to know the details when a foreign government attempts to influence the outcome of a U.S. presidential election. And the public has a right to know what steps have been taken to prevent future attacks."
  • In Hearing on Election Assistance Commission, EPIC Highlights Voting Report of National Academies » (Nov. 27, 2018)
    In advance of a hearing for commissioners to the Election Assistance Commission, EPIC submitted a statement to the Senate Rules Committee stressing the importance of strong election security standards. EPIC noted growing threats to election security and voting integrity. EPIC said the Commission should finalize the Voluntary Voting Systems Guidelines, the technical guidelines for voting systems' security. EPIC also cited the recent report of the National Academies of Science "Securing the Vote: Protecting American Democracy (2018)," which concluded that "all U.S. elections should use paper ballots by the 2020 presidential election." The National Academies also advised against Internet voting.
  • EPIC Seeks Special Counsel Reports on Russian Election Interference » (Nov. 5, 2018)
    EPIC has submitted an urgent Freedom of Information Act request to the Department of Justice for records about Special Counsel Robert Mueller's investigation into the Russian interference in the 2016 U.S. presidential election. In May 2017, the Acting Attorney General authorized an investigation into Russian interference, including "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." Special Counsel Mueller has since brought criminal charges against 33 individuals and three organizations. According to news reports and President Trump's attorneys, Special Counsel Mueller intends to transmit one or more reports detailing his findings. EPIC launched a project on Democracy and Cybersecurity in response to Russian interference in the 2016 presidential election. EPIC is currently pursuing several related FOIA cases concerning Russian interference with the 2016 election: EPIC v. FBI (response to Russian cyberattacks), EPIC v. ODNI (Russian hacking), EPIC v. IRS I (release of Trump's tax returns), EPIC v. IRS II (release of Trump’s offers-in-compromise), and EPIC v. DHS (election cybersecurity).
  • D.C. Circuit to Hear Arguments in EPIC v. IRS, FOIA Case for Trump's Tax Returns » (Sep. 11, 2018)
    The D.C. Circuit will hear arguments on Thursday, September 13 in EPIC v. IRS, EPIC's Freedom of Information Act case to obtain public release of President Trump's tax returns. Live audio of the arguments will be streamed from this link at or around 9:30 a.m. EPIC has argued that the IRS has the authority to disclose the President's returns to correct numerous misstatements of fact concerning his financial ties to Russia. For example, President Trump tweeted that "Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA - NO DEALS, NO LOANS, NO NOTHING"—a claim "plainly contradicted by his own attorneys, family members, and business partners." As EPIC told the Court, "there has never been a more compelling FOIA request presented to the IRS." A broad majority of the American public favor the release of the President's tax returns. EPIC v. IRS is one of several FOIA cases EPIC has pursued concerning Russian interference in the 2016 Presidential election, including EPIC v. FBI (response to Russian cyberattack) and EPIC v. DHS (election cybersecurity).
  • D.C. Circuit Announces Panel in EPIC v. IRS, FOIA Case for Trump's Tax Returns » (Aug. 14, 2018)
    The D.C. Circuit has announced the three-judge panel that will decide EPIC v. IRS, EPIC's Freedom of Information Act case to obtain public release of President Trump's tax returns. Arguments will be held in the case on Thursday, September 13, 2018 before Judge Karen LeCraft Henderson, Judge Patricia A. Millett, and Judge Harry T. Edwards. EPIC has argued that the IRS has the authority to disclose the President's returns to correct numerous misstatements of fact concerning his financial ties to Russia. For example, President Trump tweeted that "Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA - NO DEALS, NO LOANS, NO NOTHING"—a claim "plainly contradicted by his own attorneys, family members, and business partners." As EPIC told the Court, "there has never been a more compelling FOIA request presented to the IRS." A broad majority of the American public favor the release of the President's tax returns. EPIC v. IRS is one of several FOIA cases EPIC has pursued concerning Russian interference in the 2016 Presidential election, including EPIC v. FBI (response to Russian cyber attack) and EPIC v. DHS (election cybersecurity).
  • EPIC to Congress: Declassified Russian Meddling Report Should be Released » (Jul. 11, 2018)
    In advance of a joint Committee hearing on "Oversight of FBI and DOJ Actions Surrounding the 2016 Election," EPIC has sent a statement to the House Judiciary and House Oversight Committees urging the release of the complete declassified Intelligence Community report on Russian interference in the 2016 U.S. Presidential Election. EPIC pursued a FOIA lawsuit, EPIC v. ODNI, to obtain public release of the complete Intelligence report, and a federal court ruled that ODNI could withhold the document from public release. However, a recent report from the Senate Select Committee on Intelligence confirmed the 2017 assessment from the Intelligence Community. The Intelligence report stated "Russia's goals were to undermine public faith in the U.S. 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." EPIC argued that, in light of this report, the public has a right to know the Intelligence Community's findings. In 2017, EPIC launched a new project on Democracy and Cybersecurity to focus attention on new threats to democratic institutions.
  • Senate Committee Confirms 2016 Russian Cyberattack on Democratic Institutions » (Jul. 5, 2018)
    A report from the Senate Select Committee on Intelligence has confirmed the 2017 assessment from the Intelligence Community on Russian interference with the 2016 election. The Intelligence report stated "Russia's goals were to undermine public faith in the U.S. 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." Senate Committee Chair Richard Burr (R-NC) said "the Committee has spent the last 16 months reviewing the sources, tradecraft and analytic work underpinning the Intelligence Community Assessment and sees no reason to dispute the conclusions," The Senate Report also stated, "the Committee's investigation has exposed a far more extensive Russian effort to manipulate social media outlets to sow discord and to interfere in the 2016 election and American society" than the Intelligence Community assessment reported. EPIC pursued a FOIA lawsuit, EPIC v. ODNI, to obtain public release of the complete Intelligence report. In 2017, EPIC launched a new project on Democracy and Cybersecurity to focus attention on new threats to democratic institutions.
  • EPIC Testifies at FEC Hearing on Online Political Ads, Urges Greater Transparency » (Jun. 27, 2018)
    The Federal Election Commission is holding a two day hearing to hear expert testimony on the agency's proposed rule governing disclosures for political ads on the Internet. Christine Bannan, EPIC Administrative Law and Policy Fellow, will testify on the second day of the hearing. EPIC submitted multiple comments to the FEC urging the agency to promulgate rules that would require online political ads to disclose funders as is required for traditional media ads. EPIC proposed the FEC adopt "algorithmic transparency" procedures that would require advertisers to disclose the demographic factors behind targeted political ads, as well as the source and payment, and maintain a public directory of advertiser data. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to safeguard democratic institutions from various forms of cyber attack.
  • EPIC Urges Senate Judiciary to Examine FBI Response to Russian Cyber Attacks » (Jun. 15, 2018)
    EPIC has sent a statement to the Senate Judiciary Committee ahead of Monday's hearing "Examining the Inspector General’s First Report on Justice Department and FBI Actions in Advance of the 2016 Presidential Election." EPIC urged the Committee to explore the FBI's ability to respond to future cyberattacks. According to documents obtained by EPIC, the FBI is to notify victims of cyberattacks "even when it may interfere with another investigation or (intelligence) operation." But an AP investigation found that the FBI failed to notify hundreds of officials whose email was hacked during the 2016 election. EPIC obtained the FBI's Victim Notification Procedures through a Freedom of Information Act lawsuit, EPIC v. FBI. Last month, a federal court ruled that the agency may withhold records still sought by EPIC but said that lawmakers should pursue threats to democratic institutions described in the EPIC lawsuit.
  • EPIC Calls on FEC to Pass Stronger Transparency Rules for Political Ads » (May. 24, 2018)
    EPIC submitted comments on the Federal Election Commission's (FEC) proposed rules for political ads on the internet. The FEC proposed two alternative rules, one which would hold internet companies to the same standard as traditional media companies and one which would make exceptions for online ads. EPIC stated: "FEC rules should be technology-neutral and consistent across media platforms." EPIC also recommended that the FEC adopt algorithmic transparency rules, which would require advertisers to disclose the demographic factors behind targeted political ads, as well as the source and payment, and maintain a public directory of advertiser data. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to safeguard democratic institutions from various forms of cyber attack.
  • U.S. House Report Finds FBI Cyberattack Victim Notification Inadequate » (Apr. 30, 2018)
    The House Permanent Select Committee on Intelligence has published a redacted version of its report on Russian interference with the 2016 Presidential Election. The report concludes that Russia did conduct cyberattacks on U.S. political institutions in 2015 and 2016. It also found that the FBI's "notification to numerous Russian hacking victims was largely inadequate." The report recommends that the FBI improve cyberattack victim notification. In a Freedom of Information Act lawsuit EPIC v. FBI, EPIC obtained the FBI notification procedures that would have applied during the 2016 Presidential election. The documents state that "[b]ecause timely victim notification has the potential to completely mitigate ongoing and future intrusions and can mitigate the damage of past attacks while increasing the potential for the collection of actionable intelligence, CyD's policy regarding victim notification is designed to strongly favor victim notification." However, the FBI did not follow this procedure following cyber attacks on the DNC and RNC during the 2016 Presidential Election. The Committee also recommended measures to strengthen U.S. election systems, such as paper ballots, protection of voter registration systems, and funding for risk assessment of state election agency computer systems. In early 2017, EPIC launched the Project on Democracy and Cybersecurity.
  • Senator Feinstein Calls for Transparency on Russian Election Interference » (Mar. 22, 2018)
    At a Senate Intelligence Committee hearing on Election Security this week. Senator Diane Feinstein said “America is the victim and America has to know what’s wrong. And if there are states that have been attacked, America should know that.” In a Freedom of Information Act lawsuit EPIC v. FBI, EPIC obtained the FBI notification procedures that would have applied during the 2016 Presidential election. The documents state that “[b]ecause timely victim notification has the potential to completely mitigate ongoing and future intrusions and can mitigate the damage of past attacks while increasing the potential for the collection of actionable intelligence, CyD’s policy regarding victim notification is designed to strongly favor victim notification.” However, the FBI did not follow this procedure following cyber attacks on the DNC and RNC during the 2016 Presidential Election. In early 2017, EPIC launched the Project on Democracy and Cybersecurity. EPIC is currently pursuing several additional FOIA cases concerning Russian interference with the 2016 election, EPIC v. ODNI (Russian hacking), EPIC v. IRS (release of Trump's tax returns), and EPIC v. DHS (election cybersecurity).

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.

Legal Documents

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

FOIA Documents

Related Cases

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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