Walton Spars With DOJ

Case 1:18-cv-01766-RBW Document 54 Filed 02/14/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
v. ) No. 1:18-cv-1766-RBW
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
_____________________________________ )
NOTICE OF FILING
In accordance with the Court’s February 7, 2020 Order (ECF No. 53), Defendant hereby
files copies of the following five documents, which have been redacted as specified in the
Court’s January 30, 2020 Order (ECF No. 50):
1) Transcript of July 9, 2019 Status Conference;
2) Transcript of September 9, 2019 Status Conference;
3) Transcript of September 30, 2019 Status Conference;
4) Defendant’s Partial Opposition to Motion to Unseal Transcripts;
5) Declaration of J.P. Cooney, December 10, 2019.
1
Case 1:18-cv-01766-RBW Document 54 Filed 02/14/20 Page 2 of 2
Date: February 14, 2019 Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
ELIZABETH J. SHAPIRO
Deputy Branch Director
s/Justin M. Sandberg
JUSTIN M. SANDBERG (Ill. Bar. No.
6278377)
Senior Trial Counsel
U.S. Department of Justice, Civil Division
Federal Programs Branch
1100 L Street NW, Room 11004
Washington, DC 20005
Tel.: (202) 514-5838
Fax: (202) 616-8460
Email: justin.sandberg@usdoj.gov
Counsel for Defendant
2
Case 1:18-cv-01766-RBW Document 54-1 Filed 02/14/20 Page 1 of 27 1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3 CITIZENS FOR RESPONSIBILITY .

AND ETHICS IN WASHINGTON .
4 Plaintiff, .
vs. . Docket No. CV 18-1766-RBW
5 .
U.S. DEPARTMENT OF JUSTICE . Washington, D.C.
6 . July 9, 2019
Defendant. .
7 . . . . . . . . . . . . . . . .x 2:33 p.m.
9 TRANSCRIPT OF STATUS CONFERENCE
10 BEFORE THE HONORABLE SENIOR JUDGE REGGIE B. WALTON
11 UNITED STATES DISTRICT JUDGE
12 APPEARANCES:
13 For the Plaintiff: Anne L. Weismann, Chief FOIA Counsel

CITIZENS FOR RESPONSIBILITY AND
14 ETHICS IN WASHINGTON
455 Massachusetts Avenue, NW
15 Washington, DC 20001
16
For the Defendant: Justin M. Sandberg, Attorney-at-Law
17 U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
18 1100 L Street, NW - Room 11004
19
20
21 Court Reporter: Cathryn J. Jones, RPR

Official Court Reporter
22 Room 6521, U.S. District Court
333 Constitution Avenue, N.W.
23
24 Proceedings recorded by machine shorthand, transcript

produced by computer-aided transcription.
25
1 P R O C E E D I N G S
2 THE DEPUTY CLERK: Your Honor, this is Civil
3 Action 18-362 [sic], Citizens For Responsibility and Ethics
4 In Washington versus the U.S. Department of Justice.
5 Going to ask counsel, please approach the podium,
6 state your appearance for the record, introduce any parties
7 at your table.
8 MS. WEISMANN: Good afternoon, your Honor, Anne
9 Weismann on behalf of CREW.
10 THE COURT: Good afternoon.
11 MR. SANDBERG: Good afternoon, your Honor, Justin
12 Sandberg for the Department of Justice. Also with me at
13 counsel table is Madeleine Hensler from the U.S. Department
14 of Justice, Office of Inspector General and Assistant U.S.
15 Attorney, J.P. Cooney.
16 THE COURT: Good afternoon. I set this matter
17 because I had a question to inquire of the government about,
18 and since at least at this point there is a sufficient
19 predicate to maintain the submission that was made to me
20 under seal, I think it's appropriate to hear from the
21 government ex parte regarding the concern that I had. So
22 I'll have to order that counsel for the plaintiff wait
23 outside and anybody else associated with plaintiffs.
24 [Ex parte discussion outside presence of
25 plaintiff's counsel.]
1 THE COURT: As counsel knows this matter regards a
2 FOIA request for documents related to the investigation of
3 former FBI deputy director Andrew McCabe. And at the last
4 hearing I had agreed before that to permit a declaration to
5 be filed under seal. And before concluding that that should
6 continue and for how long, I thought it was appropriate to
7 get some insight from the prosecutor in this case as to what
8 the status of this matter is and how long it's anticipated
9 the investigation will be ongoing.
10 Because I think to permit the investigation to go
11 on infinitum really undercuts the purpose of the Freedom of
12 Information Act since it is designed to provide a means by
13 which the American public can know what its government is up
14 to obviously, if the investigation is still in its
15 investigative stage. And if it's reasonable that it be
16 ongoing for at least some period of time I obviously would
17 consider maintaining that declaration under seal. But I
18 need to hear from government counsel as to how long it's
19 anticipated this matter will be, being considered by the
20 office of the United States Attorney's Office and the Grand
21 Jury if it's been presented to the Grand Jury.
22 MR. SANDBERG: Your Honor just briefly.
23 Mr. Cooney will address those questions. I did want to note
24 at the outset just very briefly as Your Honor I'm sure is
25 aware Exemption 7(a) has no time limit built in. It's

1 suppose to extend during the pendency of the investigation
2 or while the investigation is reasonably expected. And
3 there have been cases where it's gone on much, much longer
4 than this like the D.B. Cooper hijacking case. Court upheld
5 invocation 7(a) like 24 years after that incident.
6 So to the extent one thinks there might be sort of
7 a built-in time limitation because at some point you think
8 an investigation is not really going to be happening or ever
9 going to be completed we're not anywhere near that sort of
10 outer boundary. But with that I will let Mr. Cooney address
11 --
12 THE COURT: I don't think I'm going to let this
13 going on for 24 years. I don't think it's that type of a
14 matter.
15 MR. COONEY: Good morning, Your Honor, J.P. Cooney
16 from the U.S. Attorney's office. Do you have a specific
17 question or should I just -- I just want to make sure --
18 THE COURT: Just explain to me what's going on so
19 I have some appreciation as to why it's appropriate to
20 permit this declaration to remain under seal.
21 As I said I understand that sometimes
22 investigations take some time to complete. On the other
23 hand, I have to, you know, counsel's correct there's no time
24 limit but I think reasonableness is a factor to take into
25 account since on the one hand obviously the government has a

1 right to conduct appropriate investigations regarding
2 potential criminal matters.
3 On the other hand, the American public has a right
4 to know what its government is up to. And I just think
5 there has to be some reason as to why a matter is going to
6 remain open for how long it's anticipated that will be the
7 case.
8 MR. COONEY: And so, Your Honor, I will -- my
9 colleague from Federal Programs will address the substantive
10 issues of the law in FOIA. But with respect to your
11 question about the investigation first, what I can say is
12 that it is ongoing.
13 You have used the word investigations, so I want
14 to make sure I'm candid with the Court and that there's no
15 confusion about what I mean by investigation. There are
16 some minor investigative steps that have been taken recently
17 and are continuing to be taken. However, it is fair to say
18 that we are more in a decisional phase than what we would
19 traditionally call an investigative phase.
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4 I know that your real central question really
5 doesn't related to that background as much as it is what the
6 time frame is. And it is impossible for me to put a firm
7 time frame on it. I can assure you, Your Honor, that career
8 prosecutors are looking at this matter very carefully. And
9 we are nearing a decision, but for me to put a date on that
10 is very difficult.
11 THE COURT: I mean 30 days? Sixty days? You just
12 don't have any idea?
13 MR. COONEY: To be fair I don't want to say I
14 don't have any idea because I do think that a decision is
15 sooner rather than further, but I could not assure the Court
16 standing here today that 30 days would be, that within 30
17 days there will be a final decision and that there will be
18 action on that decision. I think 60 days is more likely.
19 But it is also difficult for me to assure the Court in a
20 matter like this once a decision is made that even within 60
21 days that that decision will be acted on depending on what
22 that decision is.
23 I apologize if that sounds, I don't mean to be coy
24 at all, but there are -- once a decision is made in a matter
25 like this there is often a number of steps that are taken

1 thereafter before the decision is well known.
2 THE COURT: Very well. I understand. I served in
3 that office for a long time, and was the executive assistant
4 who was involved in ultimate questions about whether a case
5 should move forward, some extremely complex matters. So I
6 appreciate sometimes it takes time for a decision to be
7 made. So I will continue the matter for 60 days, and have
8 counsel report back to me at that time if no action has been
9 taken to see whether I think that additional time to
10 maintain the matter under seal is appropriate.
11 MR. COONEY: Thank you, Your Honor.
12 THE COURT: Okay. We can have counsel come back
13 in.
14 [Plaintiff counsel reenters the courtroom.]
15 THE COURT: Okay. Based upon my discussions
16 ex parte with government counsel regarding this matter, and
17 to what extent I should continue to permit a submission made
18 to the Court to be maintained under seal, I do conclude that
19 the representations made by government counsel do afford a
20 sufficient basis to continue at this point to maintain the
21 submission made by government counsel under seal.
22 I will as I indicated to government counsel
23 closely monitor this matter. And based upon what was
24 represented I think that a further continuance maintaining
25 the document under seal for an additional 60 days is

1 appropriate.
2 I'm sure that plaintiff doesn't agree with that,
3 and it's unfortunate that the discussions have to be under
4 seal, but in order to advance the objectives of the Freedom
5 of Information Act exceptions I have concluded that ex parte
6 submissions or representations were appropriate. And
7 therefore to protect the interest of the government as it
8 relates to the exemption that's being claimed I will
9 continue the matter for 60 days.
10 Anything you want to put on the record,
11 plaintiff's counsel?
12 MS. WEISMANN: Thank you, your Honor. Just
13 briefly. I mean obviously we're at a considerable
14 disadvantage not having seen the sealed declaration, but I
15 would submit as we argue in our papers that putting that
16 aside the public record more than adequately demonstrates
17 that the government has not met its burden of showing that
18 these are records complied for law enforcement purpose.
19 And I would direct the Court specifically to the
20 IG Ofelia Perez declaration that was filed on the public
21 record in which she explains that she actually made the call
22 for the IG, that these were records complied for law
23 enforcement investigation, and that she did so based
24 exclusively on the fact that the IG had conducted a
25 misconduct investigation of Mr. McCabe. And she says in her

1 declaration that it was based on that background that she
2 concluded that they were compiled for a law enforcement
3 purpose.
4 So I would submit, your Honor, that the evidence
5 that the government has offered in this record shows that it
6 was, they relied exclusively on a misconduct investigation.
7 And we have explained in our papers that the case law here
8 in the D.C. Circuit is that when an IG is looking into
9 allegations of employee misconduct that aren't specifically
10 directed to a civil or criminal violation of law that the
11 predicate for Exemption 7 is not met.
12 THE COURT: I understand that, but you're not
13 suggesting that every IG investigation regarding alleged
14 employee misconduct cannot be associated with some other
15 type of investigation, are you?
16 MS. WEISMANN: I am not suggesting that, Your
17 Honor. I am arguing that the records that the OPR initially
18 identified as responsive to our requests and that they
19 referred to the IG for a direct response, meaning that the
20 IG had all the equities in those records, and that the IG
21 treated as records from its misconduct investigation of
22 Mr. McCabe that that is the set of records at issue.
23 And I would draw a distinction between our case
24 and a case that the government relied on in its papers the
25 John Doe case, the Supreme Court case. In that case the
1 request at issue was made directly to the investigating
2 entity that had recompiled the records, and that is not the
3 case here.
4 I can, of course, speculate on what the underlying
5 investigation you know who it's conducting. But whether I'm
6 right or wrong the bottom line is CREW did not make its
7 request of that entity. We made our request of OPR. OPR
8 said we've done a search. We found in our file records that
9 originated with the IG. The IG got those records, looked at
10 them and said oh, these are records from our misconduct
11 investigation of Mr. McCabe, their now closed investigation.
12 And they said based on that character, that characteristic
13 they were compiled for law enforcement purpose.
14 I am not suggesting that all IG investigations,
15 you know, never rise to the level of being for a law
16 enforcement purpose, but I think the record here
17 demonstrates that from the outset this was always conceived
18 of as a misconduct investigation. It was started by the
19 FBI's inspection division when they thought they had
20 evidence that suggested that Mr. McCabe had committed
21 misconduct by lacking candor in his responses to their
22 questions. They made a referral just of that matter to the
23 IG.
24 The IG opened its own investigation. Again,
25 though they always framed it as a misconduct investigation.

1 And we know from the public report that they put in the
2 public of their investigation they explain what specific
3 charges they were looking at, and they are all either
4 internal FBI policies or FBI offense codes such as lack of
5 candor. There's never been a suggestion in that entire
6 record from start to finish that they ever considered
7 whether or not Mr. McCabe had committed a criminal or civil
8 violation.
9 THE COURT: Any response from government counsel?
10 MR. SANDBERG: As we point out in our papers these
11 were compiled for a law enforcement purpose in two ways.
12 One way is by the OIG in the course of their initial
13 investigation, and I'm happy to circle back to that.
14 The second way is for the purposes of the ongoing
15 enforcement procedure, which John Doe Corp versus John Doe
16 Agency says, is a valid indication of that exemption that
17 you don't have to look just at the initial compilation, that
18 compilation captures subsequent compilations. And there's
19 no suggestion in that case that you can sort of get at
20 documents which are essential to a potential enforcement
21 proceedings by saying oh, but we asked the other agency
22 first before they were, you know, documents essential to an
23 enforcement proceeding were, you know, we asked that agency
24 not the agency involved in the enforcement proceeding.
25 Nothing in John Doe Corp suggests there's such a back door

1 to get such documents.
2 THE COURT: I don't know of any cases that say
3 that if a misconduct investigation is initially conducted
4 that that means that because the initial purpose of the
5 investigation was employee misconduct that those documents
6 can't be covered by 7(a) if during the course of that
7 investigation things occur that convert that into something
8 different.
9 MR. SANDBERG: That's correct. And that's where
10 they, that's the sort of John Doe Corp point that if they're
11 then compiled for the enforcement proceeding as you're
12 referring to that that allows them to be subject to 7(a).
13 They're not sort of forever kept out of 7(a), because at one
14 point they were being compiled perhaps initially for a
15 different purpose.
16 But in fact here they were being compiled for a
17 law enforcement purpose under the Stern test in the D.C.
18 Circuit, which says sort of was the agency involved in
19 looking at a lot specific individual's conduct and does that
20 conduct potentially present criminal liability? And the OIG
21 was looking at a specific individual's conduct, Mr. McCabe,
22 and that conduct involved lack of candor to the FBI. So we
23 think both in the initial compilation and in the subsequent
24 compilation we satisfied the complied for law enforcement
25 prerequisite to Exemption 7.
1 I did want to add one other point relevant to the
2 processing rate before I forget, which is just yesterday
3 another FOIA processer began at OIG which would not be
4 remarkable at some agencies, but OIG only has some I think
5 four folks who are involved at all in FOIA and I think two
6 who do it full-time processing. So they're now going from
7 two full-time processers to someone who spends 2.75 or
8 something. She has other responsibilities hence the point
9 75.
10 The FOIA processing capacity has increased, so I
11 wanted to apprize the Court of that and I apprized
12 plaintiff's counsel of that before the hearing.
13 MS. WEISMANN: Your Honor, may I respond?
14 THE COURT: Yes.
15 MS. WEISMANN: The language from the D.C. Circuit
16 is as follows; the investigation must focus directly on
17 specific alleged illegal acts which could result in civil or
18 criminal sanctions. And I think there really is no serious
19 question here as described by the IG itself. This was not
20 an investigation into specific civil or criminal, that could
21 result in specific civil or criminal sanctions. From start
22 to finish it was a misconduct investigation that led to
23 Mr. McCabe's termination. And the fact that subsequently
24 there may have been a referral, for example, to the U.S.
25 Attorney's office for a possible criminal investigation does

1 not negate the character of the initial investigation that
2 was done.
3 Now let me try to explain what I think is the
4 critical difference between this case and the John Doe case.
5 The John Doe case involved a contractor that was subject to
6 audit by the defense contract audit agency. It found some
7 irregularities, but nothing was done about them. Several
8 years later the U.S. Attorney's office opened up a separate
9 criminal investigation. And through a Grand Jury subpoena
10 they subpoenaed the records from the defense contract audit
11 agency.
12 The contractor then made a FOIA request with the
13 FBI, the entity that had recompiled the records. And it was
14 under those circumstances that the Supreme Court said the
15 fact that they were originally compiled for a non-law
16 enforcement purpose does not mean that they can never have a
17 law enforcement purpose if they've been recompiled.
18 And, your Honor, again, I go back if we had made
19 our FOIA request that's at issue here if we had made it with
20 the United States Attorney's office who is ever doing an
21 ongoing investigation then I think it would be directly
22 parallel to the John Doe case. But think about it, we asked
23 for records from a closed IG investigation. Both the OPR
24 and the IG described the responsive records as from that
25 investigation. And had they just gone ahead and processed

1 them and released them we would have had no idea that they
2 in any way implicated some pending investigation.
3 So I think this is a situation that is harmed
4 that's caused by the government itself by acknowledging in
5 tying these records into another investigation which we
6 haven't even asked for records from, so I think that's a
7 critical difference.
8 And the other thing I would just urge on the issue
9 of harm where I think obviously we are the least prepared to
10 discuss because the government relies exclusively on the
11 Lyon's declaration. But on harm I think it defies
12 credibility to say as the government appears to be saying
13 that records that come from a closed investigation and that
14 investigation at least as described by the Inspector
15 General's office related exclusively to Mr. McCabe and
16 exclusively to allegations that he had lacked candor, and
17 had not followed FBI policies about speaking to the press
18 and that it resulted in a very detailed report that
19 documents that underlie that investigation that at least by
20 the IG's own description in that investigation pertain only
21 to Mr. McCabe and only to his conduct vis-a-vis a leak
22 investigation into an October 2016 Wall Street Journal
23 article, the notion that revealing further detail would harm
24 an ongoing investigation I submit is implausible on its
25 face.
1 The real concern, the concern that I have
2 articulated before for this Court is that the public is
3 being deprived of the real story here. And I can't -- I
4 have to acknowledge --
5 THE COURT: What about the counter balancing
6 concern that the government may have that to release the
7 information could if there is an investigation being
8 conducted compromise that investigation?
9 MS. WEISMANN: But I guess what I'm saying is the
10 mere fact if they've said that I question how it can
11 compromise the investigation, that's really what I'm asking.
12 THE COURT: Isn't there a FOIA authority that says
13 that even though information may have been somehow in the
14 public domain doesn't necessarily mean that an exemption in
15 reference to those matters can nonetheless still be
16 asserted?
17 MS. WEISMANN: Yes, I'm not saying that all
18 information that's been in the public domain there, but I
19 think what's --
20 THE COURT: And here it's not even in the public
21 domain. You're just saying it's a part of another component
22 of the Justice Department. And again, I don't know if any
23 authority that says that if a FOIA request is made of the
24 Department itself that that means that an individual
25 component of the department can't take the position that the

1 matter is exempt. Because you seem to be conceding that if
2 your request had been made to the U.S. Attorney's office, if
3 they are in fact conducting an investigation, that
4 conceivably the government's position would have merit.
5 MS. WEISMANN: Right. But our request, in fact,
6 was made to the FBI's Office of Professional Responsibility.
7 It was a very targeted, specific request to a very specific
8 office.
9 THE COURT: I think what you've said causes me to
10 have to ask the government a couple more questions to
11 complete the record in the event there's ultimately an
12 appeal of this matter, and I'll have to do that ex parte.
13 MR. SANDBERG: I just had a few more points.
14 THE COURT: Yes.
15 MR. SANDBERG: It doesn't matter whether, you
16 know, if we'd released the records plaintiffs wouldn't have
17 been aware of the investigation. The question is releasing
18 that information would it have harmed the investigation in
19 some way. And it's possible to harm an investigation even
20 if plaintiffs don't know that an investigation is ongoing.
21 Second quickly, John Doe Corp versus John Doe
22 Agency does not suggest that if only the plaintiffs there
23 had filed their FOIA request against the defense contractor
24 agency that things would have come out differently, which as
25 I said would be a weird back door and would undermine the

1 purpose of the 7(a) exemption. And as we've previously
2 discussed and I'm not going to sort of beat this dead horse,
3 you know, the OIG report tells the whole story. And so to
4 the extent there's a suggestion that it doesn't, you know,
5 we object to that.
6 And finally, as your Honor noted this information
7 is not in the public domain, and that's specifically the
8 point of what's going on here is what's taken so long in
9 producing this is we go through -- when material is deemed
10 otherwise subject to 7(a) we go through and unredact
11 material that is in the public domain to make sure that
12 we're not withholding material that is in fact in the public
13 domain.
14 THE COURT: Very well. I need to have a further
15 short discussion with government counsel ex parte.
16 [Ex parte discussion outside presence of
17 plaintiff's counsel.]
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2 THE COURT: Very well.
3 MR. COONEY: Thank you.
4 [Thereupon, plaintiff's counsel reenters the
5 courtroom.]
6 THE COURT: Over objection I will again conclude
7 that it's appropriate to maintain the Lyon's declaration
8 under seal for at least an additional 60-day period.
9 Obviously, if counsel wants to challenge it on appeal that's
10 appropriate, but I think based upon the representations made
11 to me ex parte I do conclude that it's appropriate to
12 maintain the matter under seal.
13 Okay. That would take us to September 9th. I am
14 in trial at that time, but we could do it first thing in the
15 morning at 9:15. Is that good?
16 MS. WEISMANN: That works for me, your Honor.
17 Thank you.
18 THE COURT: Government counsel?
19 MR. SANDBERG: That's fine with the government,
20 your Honor.
21 THE COURT: Thank you.
22 MS. WEISMANN: Your Honor, can I ask for a point
23 of clarification?
24 THE COURT: Yes.
25 MS. WEISMANN: I think it's obvious, but I just

1 want to be clear. You are not yet ruling on the
2 applicability of the exemptions just on the declaration?
3 Just that it be filed -- you're allowing it to be filed
4 under seal?
5 THE COURT: Not a definitive ruling, but I do
6 think based upon the representations made that at least at
7 this stage of proceedings that the exemption does apply for
8 the purpose of the declaration being maintained under seal.
9 MS. WEISMANN: Thank you, your Honor.
10 THE COURT: Thank you.
11 [Thereupon, the proceedings adjourned at 3:00
12 p.m.]
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1 CERTIFICATE
2 I, Cathryn J. Jones, an Official Court Reporter
3 for the United States District Court of the District of
4 Columbia, do hereby certify that I reported, by machine
5 shorthand, the proceedings had and testimony adduced in the
6 above case.
7 I further certify that the foregoing 20 pages
8 constitute the official transcript of said proceedings as
9 transcribed from my machine shorthand notes.
10 In witness whereof, I have hereto subscribed my
11 name, this the 20th day of November, 2019.
12
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/s/_Cathryn J. Jones
16 Cathryn J. Jones, RPR
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24 [2] 4/5 4/13 another [3] 13/3 15/5 16/21 behalf [1] 2/9
2:33 [1] 1/7 anticipated [3] 3/8 3/19 5/6 being [9] 3/19 5/25 8/8 10/15 12/14
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30 [4] 5/23 6/11 6/16 6/16 anybody [1] 2/23 between [2] 9/23 14/4
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333 [1] 1/22 anywhere [1] 4/9 bottom [1] 10/6
362 [1] 2/3 apologize [3] 5/21 5/25 6/23 boundary [1] 4/10
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appearance [1] 2/6 briefly [3] 3/22 3/24 8/13
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acknowledging [1] 15/4 as [29] cases [2] 4/3 12/2
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acted [1] 6/21 ask [4] 2/5 17/10 18/18 19/22 caused [1] 15/4
action [3] 2/3 6/18 7/8 asked [4] 11/21 11/23 14/22 15/6 causes [1] 17/9
acts [1] 13/17 asking [1] 16/11 central [1] 6/4
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certify [2] 21/4 21/7
counsel's [1] 4/23 19/11 19/14 20/5 21/4
challenge [1] 19/9
counter [1] 16/5 Docket [1] 1/4
character [2] 10/12 14/1
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circumstances [1] 14/14
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CITIZENS [3] 1/3 1/13 2/3
coy [1] 6/23 doing [1] 14/20
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closed [3] 10/11 14/23 15/13
critical [2] 14/4 15/7 door [2] 11/25 17/25
closely [1] 7/23
CV [1] 1/4 draw [1] 9/23
codes [1] 11/4
during [2] 4/1 12/6
colleague [1] 5/9 D
COLUMBIA [2] 1/2 21/4 E
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date [1] 6/9 else [1] 2/23
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dead [1] 18/2 entire [1] 11/5
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decision [10] 6/9 6/14 6/17 6/18 6/20 entity [3] 10/2 10/7 14/13
completed [1] 4/9 6/21 6/22 6/24 7/1 7/6 equities [1] 9/20
complex [1] 7/5
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declaration [10] 3/4 3/17 4/20 8/14 ETHICS [3] 1/3 1/14 2/3
component [2] 16/21 16/25 8/20 9/1 15/11 19/7 20/2 20/8 even [5] 6/20 15/6 16/13 16/20 17/19
compromise [2] 16/8 16/11
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computer [1] 1/24
Defendant [2] 1/6 1/16 ever [3] 4/8 11/6 14/20
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conceding [1] 17/1
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conceivably [1] 17/4
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conceived [1] 10/17
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concern [4] 2/21 16/1 16/1 16/6
department [8] 1/5 1/17 2/4 2/12 2/13 ex parte [1] 7/16
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depending [1] 6/21 exceptions [1] 8/5
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conduct [6] 5/1 12/19 12/20 12/21
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description [1] 15/20 exempt [1] 17/1
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confirmed [1] 6/1
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confusion [1] 5/15
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continuance [1] 7/24
director [1] 3/3
continue [5] 3/6 7/7 7/17 7/20 8/9
disadvantage [1] 8/14 F
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contract [2] 14/6 14/10 fact [9] 5/23 8/24 12/16 13/23 14/15
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contractor [3] 14/5 14/12 17/23 16/10 17/3 17/5 18/12
discussion [3] 2/24 18/15 18/16
convert [1] 12/7 factor [1] 4/24
discussions [2] 7/15 8/3
Cooney [4] 2/15 3/23 4/10 4/15
F hearing [2] 3/4 13/12 its [9] 3/13 3/14 5/4 8/17 9/21 9/24
Case 1:18-cv-01766-RBWhence
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FBI [6] 3/3 11/4 11/4 12/22 14/13
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his [2] 10/21 15/21 Journal [1] 15/22
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finish [2] 11/6 13/22
HONORABLE [1] 1/10 just [19] 3/22 3/24 4/17 4/17 4/18 5/4
firm [1] 6/6 6/11 8/12 10/22 11/17 13/2 14/25 15/8
horse [1] 18/2
first [3] 5/11 11/22 19/14 16/21 17/13 18/18 19/25 20/2 20/3
how [5] 3/6 3/8 3/18 5/6 16/10
focus [1] 13/16
Howell [1] 6/1 JUSTICE [6] 1/5 1/17 2/4 2/12 2/14
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Justin [2] 1/16 2/11
folks [1] 13/5 I
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I'll [2] 2/22 17/12 K
follows [1] 13/16 kept [1] 12/13
I'm [10] 3/24 4/12 5/14 8/2 10/5 11/13
foregoing [1] 21/7 16/9 16/11 16/17 18/2 know [15] 3/13 4/23 5/4 6/4 10/5
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idea [3] 6/12 6/14 15/1
forget [1] 13/2 17/16 17/20 18/3 18/4
identified [1] 9/18
former [1] 3/3 known [1] 7/1
IG [16] 8/20 8/22 8/24 9/8 9/13 9/19
forward [1] 7/5 9/20 9/20 10/9 10/9 10/14 10/23 10/24 knows [1] 3/1
found [2] 10/8 14/6 13/19 14/23 14/24
four [1] 13/5
IG's [1] 15/20
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frame [2] 6/6 6/7 lack [2] 11/4 12/22
illegal [1] 13/17
framed [1] 10/25 lacked [1] 15/16
implausible [1] 15/24
Freedom [2] 3/11 8/4 lacking [1] 10/21
implicated [1] 15/2
full [2] 13/6 13/7 language [1] 13/15
impossible [1] 6/6
full-time [2] 13/6 13/7 last [1] 3/3
incident [1] 4/5
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increased [1] 13/10
G indicated [1] 7/22 law [14] 1/16 5/10 8/18 8/22 9/2 9/7
indication [1] 11/16 9/10 10/13 10/15 11/11 12/17 12/24
General [1] 2/14 14/15 14/17
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General's [1] leak [1] 15/21
individual's [2] 12/19 12/21
get [3] 3/7 11/19 12/1 least [7] 2/18 3/16 15/9 15/14 15/19
infinitum [1] 3/11
go [4] 3/10 14/18 18/9 18/10 19/8 20/6
information [10] 3/12 8/5 16/7 16/13
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initial [5] 11/12 11/17 12/4 12/23 14/1
gone [2] 4/3 14/25 level [1] 10/15
initially [3] 9/17 12/3 12/14
good [6] 2/8 2/10 2/11 2/16 4/15 19/15 liability [1] 12/20
inquire [1] 2/17
got [1] 10/9 like [4] 4/4 4/5 6/20 6/25
insight [1] 3/7
government [24] likely [1] 6/18
inspection [1] 10/19
government's [1] 17/4 limit [2] 3/25 4/24
Inspector [2] 2/14 15/14
Grand [4] 3/20 3/21 5/20 14/9 limitation [1] 4/7
interest [1] 8/7
guess [1] 16/9 line [1] 10/6
internal [1] 11/4
H introduce [1] 2/6 long [6] 3/6 3/8 3/18 5/6 7/3 18/8
longer [1] 4/3
had [20] 2/17 2/21 3/4 8/24 9/20 10/2 investigating [2] 5/20 10/1
investigation [51] look [1] 11/17
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investigations [4] 4/22 5/1 5/13 10/14 looked [2] 5/24 10/9
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investigative [4] 3/15 5/16 5/19 18/19 looking [5] 6/8 9/8 11/3 12/19 12/21
17/23 21/5
invocation [1] 4/5 lot [1] 12/19
hand [3] 4/23 4/25 5/3
involved [6] 7/4 11/24 12/18 12/22 Lyon's [2] 15/11 19/7
happening [1] 4/8
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happy [1] 11/13
irregularities [1] 14/7
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harm [4] 15/9 15/11 15/23 17/19 machine [3] 1/24 21/4 21/9
harmed [2] 15/3 17/18 is [68]
made [19] 2/19 6/20 6/24 7/7 7/17
has [12] 3/25 4/25 5/3 5/5 5/21 6/1 7/8 Isn't [1] 16/12 7/19 7/21 8/21 10/1 10/7 10/22 14/12
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issues [1] 5/10 14/18 14/19 16/23 17/2 17/6 19/10
have [31] 20/6
haven't [1] 15/6 it [36]
it's [18] 2/20 3/8 3/15 3/18 3/21 3/25 Madeleine [1] 2/13
having [1] 8/14 maintain [5] 2/19 7/10 7/20 19/7 19/12
he [1] 15/16 4/3 4/13 4/19 5/6 8/3 10/5 16/20 16/21
17/19 19/7 19/11 19/25 maintained [2] 7/18 20/8
hear [2] 2/20 3/18
M NW [2] 1/14 1/18 plaintiffs [4] 2/23 17/16 17/20 17/22
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Massachusetts [1] 1/14
objection [1] 19/6 12/14 13/1 13/8 18/8 19/22
material [3] 18/9 18/11 18/12
objectives [1] 8/4 points [1] 17/13
matter [21] 2/16 3/1 3/8 3/19 4/14 5/5
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October [1] 15/22 potential [2] 5/2 11/20
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October 2016 [1] 15/22 potentially [1] 12/20
McCabe [9] 3/3 8/25 9/22 10/11 10/20
Ofelia [1] 8/20 predicate [2] 2/19 9/11
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offense [1] 11/4 prepared [1] 15/9
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offered [1] 9/5 prerequisite [1] 12/25
me [12] 2/12 2/19 4/18 6/6 6/9 6/19 7/8
office [13] 2/14 3/20 3/20 4/16 7/3 presence [2] 2/24 18/16
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often [1] 6/25 previously [1] 18/1
means [3] 3/12 12/4 16/24
oh [2] 10/10 11/21 procedure [1] 11/15
mere [1] 16/10
OIG [6] 11/12 12/20 13/3 13/4 18/3 proceeding [3] 11/23 11/24 12/11
merit [1] 17/4 18/19 proceedings [6] 1/24 11/21 20/7
met [2] 8/17 9/11
Okay [3] 7/12 7/15 19/13 20/11 21/5 21/8
might [1] 4/6
once [2] 6/20 6/24 processed [1] 14/25
minor [1] 5/16
one [5] 4/6 4/25 11/12 12/13 13/1 processer [1] 13/3
misconduct [12] 8/25 9/6 9/9 9/14
ongoing [7] 3/9 3/16 5/12 11/14 14/21 processers [1] 13/7
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only [4] 13/4 15/20 15/21 17/22 produced [1] 1/24
monitor [1] 7/23
open [1] 5/6 producing [1] 18/9
more [5] 5/18 6/18 8/16 17/10 17/13
opened [2] 10/24 14/8 Professional [1] 17/6
morning [2] 4/15 19/15
OPR [4] 9/17 10/7 10/7 14/23 Programs [2] 1/17 5/9
move [1] 7/5
order [2] 2/22 8/4 prosecutor [1] 3/7
Mr [3] 4/10 10/11 15/15
originally [1] 14/15 prosecutors [1] 6/8
Mr. [8] 3/23 8/25 9/22 10/20 11/7
originated [1] 10/9 protect [1] 8/7
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other [7] 4/22 5/3 9/14 11/21 13/1 13/8 provide [1] 3/12
Mr. Cooney [1] 3/23 15/8 public [13] 3/13 5/3 8/16 8/20 11/1
Mr. McCabe [6] 8/25 9/22 10/20 11/7
otherwise [1] 18/10 11/2 16/2 16/14 16/18 16/20 18/7
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our [11] 8/15 9/7 9/18 9/23 10/7 10/8 18/11 18/12
Mr. McCabe's [1] 13/23 10/10 11/10 14/19 17/5 18/25 purpose [13] 3/11 8/18 9/3 10/13
much [3] 4/3 4/3 6/5
out [3] 11/10 12/13 17/24 10/16 11/11 12/4 12/15 12/17 14/16
must [1] 13/16
outer [1] 4/10 14/17 18/1 20/8
my [4] 5/8 7/15 21/9 21/10
outset [2] 3/24 10/17 purposes [1] 11/14
N outside [3] 2/23 2/24 18/16 put [4] 6/6 6/9 8/10 11/1
Over [1] 19/6 putting [1] 8/15
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name [1] 21/11 Q
near [1] 4/9 P question [7] 2/17 4/17 5/11 6/4 13/19
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necessarily [1] 16/14
pages [1] 21/7 questions [4] 3/23 7/4 10/22 17/10
necessary [1] 6/3
papers [4] 8/15 9/7 9/24 11/10 quickly [1] 17/21
need [2] 3/18 18/14
parallel [1] 14/22
negate [1] 14/1 R
part [2] 16/21 18/25
never [3] 10/15 11/5 14/16
parte [8] 2/21 2/24 7/16 8/5 17/12 rate [1] 13/2
no [8] 1/4 3/25 4/23 5/14 7/8 11/19 18/15 18/16 19/11 rather [1] 6/15
13/18 15/1
parties [1] 2/6 RBW [1] 1/4
non [1] 14/15
pendency [1] 4/1 real [3] 6/4 16/1 16/3
non-law [1] 14/15
pending [1] 15/2 really [5] 3/11 4/8 6/4 13/18 16/11
nonetheless [1] 16/15
Perez [1] 8/20 reason [1] 5/5
not [29]
perhaps [1] 12/14 reasonable [1] 3/15
note [1] 3/23
period [2] 3/16 19/8 reasonableness [1] 4/24
noted [1] 18/6
permit [4] 3/4 3/10 4/20 7/17 reasonably [1] 4/2
notes [1] 21/9
pertain [1] 15/20 recently [1] 5/16
nothing [2] 11/25 14/7
phase [2] 5/18 5/19 recompiled [3] 10/2 14/13 14/17
notion [1] 15/23
plaintiff [5] 1/4 1/13 2/22 7/14 8/2 record [8] 2/6 8/10 8/16 8/21 9/5 10/16
November [1] 21/11
plaintiff's [5] 2/25 8/11 13/12 18/17 11/6 17/11
now [3] 10/11 13/6 14/3 19/4 recorded [1] 1/24
number [1] 6/25
R SENIOR [1] 1/10 suggests [1] 11/25
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you [27]
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AND ETHICS IN WASHINGTON, .
4 Plaintiff, .
vs. . Docket No. CV18-1766-RBW
5 .
6 . Monday, September 9, 2019
Defendant. .
7 . . . . . . . . . . . . . . . .x 9:12 a.m.
12 APPEARANCES:

16
18 1100 L Street, NW - Room 11004
19
20
Court Reporter: Cathryn J. Jones, RPR
21 Official Court Reporter
Room 6521, U.S. District Court
22 333 Constitution Avenue, N.W.
Washington, D.C. 20001
23

25
2 THE DEPUTY CLERK: Your Honor, this is Citizens
3 For Responsibility and Ethics In Washington versus the U.S.
4 Department of Justice, Civil Action Number 18-1766. Ask the
5 parties to step forward and identify yourselves for the
6 record, please.
7 MS. WEISMANN: Good morning, Your Honor, Anne
8 Weismann for CREW.
9 THE COURT: Good morning.
10 MR. SANDBERG: Good morning, Your Honor, Justin
11 Sandberg on behalf of the Department of Justice. With me at
12 counsel table is Madeleine Hensler from the U.S. Department
13 of Justice, Office of Inspector General and Assistant U.S.
14 Attorney, J.P. Cooney.
15 THE COURT: Okay. The last time we were here I
16 did take an ex parte representation from the government
17 about the status of the investigation being conducted in
18 this case. And I don't know if the government is prepared
19 to articulate in open court what that position is or whether
20 we need to do it again ex parte?
21 MR. SANDBERG: I think we need to go ex parte
22 again, Your Honor.
23 THE COURT: Very well. I'll have to ask counsel
24 for plaintiff to step outside.
25 [Thereupon, ex parte discussion outside the

1 presence of plaintiff's counsel.]
2 THE COURT: Yes.
4 for the United States.
5 When we met here last I made representations to
6 the Court that review of the matter was ongoing, and that I
7 expected that around this time there may or may not be a
8 final decision, but I expected that there may be process
9 underway. What I'm going to represent to the Court this
10 morning is exactly that, is that we are in active process
11 with attorneys for the subject of that investigation, about
12 what is going to happen next in this matter. And I expect
13 that there will be a public decision about the matter very
14 shortly.
15 I don't want to promise within days but very
16 shortly. And I think if a brief continuance in this matter
17 was granted that Your Honor would know what that decision is
18 --
19 THE COURT: How long are you talking about?
20 MR. COONEY: I would request -- I suppose because
21 I'm not in the FOIA matter I don't know when the appropriate
22 amount of time to request is, but I expect that a public
23 decision could be made literally within days. I just don't
24 want to promise the Court that. But I think that if a brief
25 continuance of a couple of weeks is granted that I can come

1 back and be very specific if a public decision had not been
2 made at that point as to what is going on.
3 THE COURT: Very well. Okay. We can have the
4 counsel for the plaintiff come back in.
5 [Thereupon, plaintiff's counsel reenters the
6 courtroom.]
7 THE COURT: Okay. Hopefully we'll be in a better
8 position in a couple of weeks to know exactly where the
9 underlying matters going, how that's going to proceed, and
10 then be able to move this matter forward. The government
11 was requesting two weeks. Unfortunately, that week I may be
12 in Pittsburgh still in trial, so I'd have to set it for the
13 30th of September, three weeks out, if that's good at 9:30.
14 Is that good for everybody?
15 MS. WEISMANN: That works for me, Your Honor.
16 MR. SANDBERG: That works for the government, Your
17 Honor.
18 THE COURT: Okay. We'll see you then. Hopefully
19 we can start to move this matter forward at that time.
20 Thank you.
21 MR. SANDBERG: Thank you, Your Honor.
22 MR. COONEY: Thank you, Your Honor.
24 a.m.]
25
1 CERTIFICATE
6 above case.
11 name, this the 2nd day of December, 2019.
12
13
15
16
17
18
19
20
21
22
23
24
25

AND ETHICS IN WASHINGTON, .
4 Plaintiff, .
vs. . Docket No. CV18-1766-RBW
5 .
6 . Monday, September 30, 2019
Defendant. .
7 . . . . . . . . . . . . . . . .x 9:35 a.m.
12 APPEARANCES:

16
18 1100 L Street, NW - Room 11004
19
20
Court Reporter: Cathryn J. Jones, RPR
21 Official Court Reporter
Room 6521, U.S. District Court
22 333 Constitution Avenue, N.W.
Washington, D.C. 20001
23

25
2 THE DEPUTY CLERK: Your Honor, this morning this
3 is In re: Citizens For Responsibility and Ethics In
4 Washington versus the U.S. Department of Justice. This is
5 Civil Action Number 18-1766.
6 Ask the parties to step forward and identify
7 yourselves for the record, please.
8 MS. WEISMANN: Good morning, Your Honor, Anne
9 Weismann on behalf of the plaintiffs, Citizens For
10 Responsibility and Ethics In Washington.
11 THE COURT: Good morning.
12 MR. SANDBERG: Good morning, Your Honor, Justin
13 Sandberg on behalf of the defendants. With me at counsel is
14 Madeleine Hensler from U.S. Department of Justice Office of
15 Inspector General and Assistant United States Attorney, J.P.
16 Cooney.
17 THE COURT: The decision as to what the government
18 intends to do in reference to Mr. McCabe has that
19 determination been made, and do we need to have further
20 discussions ex parte in reference to that?
21 MR. SANDBERG: Ex parte, Your Honor.
22 THE COURT: Very well. I'll have to ask counsel
23 for the plaintiff to leave the courtroom while I have
24 discussions with government counsel. And anybody else in
25 the courtroom not associated with the case will also have to
1 wait outside.
2 [Thereupon, plaintiff's counsel exits the
3 courtroom.]
4 THE COURT: Okay. What we discuss will be placed
5 under seal until further order of the Court. What's the
6 status of the underlying matter involving Mr. McCabe?
8 for the United States.
9 I don't
10 intend to get into substance. Of course, I'll take whatever
11 questions you have, but I just want to preface that.
12 I had anticipated when I was here three weeks ago
13 that the status of the matter would be public. That
14 prediction was obviously incorrect.
15
16
17
18
19 THE COURT: Do you have any idea how long it's
20 going to be? It just seems to me a little protracted that
21 whether you're going to go forward or not seems to me to be
22 a fairly simplistic assessment. I mean, it seems to me at
23 least from what you hear in the media, the government knows
24 what allegedly took place. I don't know why it's so
25 difficult for a decision to be made. Either you have a case

1 or you don't.
2 MR. COONEY: I understand that impression. What I
3 can tell you, and I tell this sincerely as a career
4 prosecutor, Your Honor, this is an exceedingly difficult
5 matter and situation.
6 THE COURT: I spent a lot of time in that office
7 and had to make a lot of decisions as number three in the
8 U.S. Attorney's office. Sometimes you just got to make a
9 call. I would hope that the government would expeditiously
10 move this matter along, because obviously, the plaintiffs
11 have a right under the statute to receive whatever
12 information they're entitled to receive. And it seems to me
13 from the standpoint of Mr. McCabe, he has a right to have
14 the government make a decision and not hold his life in
15 limbo pending a decision as to what's going to happen.
16 So you have any idea how long it's going to be
17 before a decision is made so I can have you all come back at
18 some reasonable point where hopefully a decision will have
19 been made?
20 MR. COONEY: Your Honor, I would ask for a period
21 of three months before we come back.
22 THE COURT: That just seems like a long time to
23 me. I just don't, I don't get it. I understand there are
24 political implications and other implications involved in
25 reference to whether you go forward. And I fully appreciate

1 the complexity of the assessment, especially unfortunately
2 to be candid in light of the way by the White House, which I
3 don't think top executive officers should be doing. Because
4 it does I think really complicate your ability to get a fair
5 adjudication from the government's prospective.
6 Because the public is listening to what's going
7 on, and I don't think people like the fact that you got
8 somebody at the top basically trying to dictate whether
9 somebody should be prosecuted. I just think it's a banana
10 republic when we go down that road and we have those type of
11 statements being made that are conceivably even if not
12 influencing the ultimate decision, I think there are a lot
13 of people on the outside who perceive that there is undo
14 inappropriate pressure being brought to bear.
15 And I just would hope that -- it's just, it's very
16 disturbing that we're in the mess that we're in in that
17 regard. Because I think having been a part of the
18 prosecution for a long time and respecting the role that
19 prosecutors play in the system I just think the integrity of
20 the process is being unduly undermined by inappropriate
21 comments and actions on the part of people at the top of our
22 government. I think it's very unfortunate. And I think as
23 a government and as a society we're going to pay a price at
24 some point for this.
25 I just think that's too along. I'll continue the

1 matter for six weeks. I think the government has got to do
2 something along to get this matter moving.
3 MR. COONEY: Sir, I will certainly report back
4 within the office about what was said here, and I do want
5 you to know that I take my role --
6 THE COURT: I'm not criticizing.
7 MR. COONEY: No, I completely understand.
8 THE COURT: I'm just happy when I was in the
9 Justice Department those type of things were not taking
10 place that were putting either perceived or actual pressure
11 on the office as to whether you prosecute somebody for a
12 criminal offense. I'm happy I never had to endure that.
13 MR. COONEY: No, I completely understand. And I
14 want to assure the Court that I and others involved in this
15 take our representation of the United States and the
16 Department of Justice very seriously.
17 THE COURT: I don't have any question. I have the
18 utmost respect for the career people in the Justice
19 Department and the United States Attorney's Office.
20 MR. COONEY: Thank you.
21 THE COURT: Okay. The 15th of November at 9:30?
22 MR. SANDBERG: Shall we check with plaintiff's
23 counsel to see if that --
24 THE COURT: Yes.
25 [Thereupon, plaintiff's counsel enters the

1 courtroom.]
2 THE COURT: Unfortunately, this matter will have
3 to be continued. I have for the benefit of the plaintiff
4 expressed my dismay with the fact that this matter has to be
5 continued further, but under the circumstances I don't think
6 I have any alternatives. Because obviously, I've got to
7 weigh the plaintiff's and society's right to have access to
8 information about what its government is doing on the one
9 hand. But on the other hand, I have to obviously weigh a
10 lot of other factors that come into play including the
11 interest that both the government and Mr. McCabe have in
12 reference to the dissemination of information about his
13 situation before a determination of how the underlying
14 matter is going to proceed.
15 So balancing those prospectives and fully
16 appreciative of the public's right to know and the
17 plaintiff's right to access to the information, I have
18 concluded that a continuance is necessary, but not to the
19 extent that the government has requested. So if counsel is
20 available will continue this matter until November 15th at
21 9:30, if that's good. Hopefully some movement --
22 MS. WEISMANN: Your Honor, may I be heard?
23 THE COURT: You may.
24 MS. WEISMANN: Thank you, Your Honor. Your Honor,
25 I realize that we are not privy to the information that's

1 been shared with you in camera. I know you know this, but
2 the government's promised deadlines have come and go, gone,
3 and in the mean time this situation is not static.
4 As you may know, Mr. McCabe has filed his own
5 lawsuit, and that complaint reveals exactly what we had
6 feared, which is, that there is, in fact, evidence that was
7 shared with Mr. McCabe by the IG that is exculpatory.
8 That's referenced in his complaint, but it is not referenced
9 at all in the Inspector General report, so that verifies the
10 concern we had that that report does not fully reflect the
11 outcome of that investigation.
12 In the mean time there's been a lot of public
13 reporting about the fact that a Grand Jury was released,
14 called back, no indictment is forthcoming. Mr. McCabe and
15 his lawyers have publicly and with the Department of Justice
16 pleaded to know the status. This is like the sword of
17 Damocles over his head.
18 There's also, and I say this, you know, as a
19 20-plus some year veteran of the Justice Department, but
20 sadly we're in dark times where there's growing evidence
21 that the president aided by the attorney general is using
22 the power of his office to go after perceived political
23 enemies. He's going after the intelligence community. He's
24 going after the law enforcement community. And we believe
25 that Mr. McCabe was swept up in that.

1 THE COURT: Going after the courts too.
2 MS. WEISMANN: And he's going after the courts,
3 the press. It's hard to find someone who isn't a victim of
4 his abuse of powers. And at the same time I submit it's
5 more critical than ever that the public have information.
6 We need to be able to restore our faith in the law
7 enforcement community, in the FBI.
8 I know you're aware of this, but I just feel
9 compelled to put it on the record that we feel that more
10 than ever the kind of evidence we're seeking here is
11 critical. And it's very hard to understand how, for
12 example, withholding the transcript of Michael Kortan, who's
13 the person identified in Mr. McCabe's complaint as having
14 offered exculpatory evidence, how that could possibly
15 interfere with a pending investigation.
16 I mean again, I realize I'm not in the position to
17 have inside knowledge, but it appears that the active
18 investigatory stage of whatever is going on with the U.S.
19 Attorney's office is over. And so I think the bar is
20 especially high here to continue to withhold this based on
21 some it sounds like mad effort to find some way to indict
22 Mr. McCabe to appease the president. That certainly from
23 the public what looks like, what it looks like is going on
24 here.
25 And so, you know, I understand that you are

1 weighing factors that we don't have access to, but I would
2 submit that the public interest here really could not be
3 higher. And it is time we believe for the public to get
4 access to what's going on. Thank you.
5 THE COURT: I totally appreciate what you just
6 said and share many of the same concerns that you have
7 expressed. And it's not an easy decision for me because
8 having myself been a member of the Justice Department for a
9 period of time, and having had to as the number three in the
10 U.S. Attorney's office, make some of these hard decisions as
11 to whether a prosecution should go forward. And I fully
12 appreciate having been a defense lawyer also the difficulty
13 that the government puts someone who's under investigation
14 on, under, when somebody is under the cloud of potential
15 prosecution I am fully sympathetic to that prospective.
16 As I said I considered what the government's
17 represented. And I would send this message to those in
18 positions of authority in the U.S. Attorney's office and the
19 Justice Department that on the next occasion if the
20 government has not made a call I'm going to make a ruling.
21 And I am going to at that point, because I do think it's
22 been a long time and this is just dragging too long. And
23 those who have to make these hard decisions need to do it.
24 And if they don't, I'm going to start ordering the release
25 of information. That's just the reality.

1 So hopefully you're under, you're -- not being
2 critical of current counsel, but those in positions need to
3 understand that I will not condone further delay. So you
4 all have got to cut and make your decision. It's not a hard
5 decision, and I think it needs to be made. If it's not made
6 I'm going to start ordering the release of information
7 because I think our society, our public does have a right to
8 know what's going on.
9 This matter is a high profile matter. And I think
10 it does while the matter hangs in limbo it does undermine
11 the credibility, not only of the Justice Department because
12 it's not making these hard decisions, but also the Court.
13 Because Congress enacted this legislation for the purpose of
14 the American public being made aware of what its government
15 is doing. And if the Court continues to not accord society
16 that interest which the Congress decided was appropriate, I
17 think it undermines the integrity of the court process and I
18 will not condone that.
19 So the government will have to make a call. If it
20 doesn't, I'm going to start ordering the release of
21 information on the next occasion. Thank you.
22 MS. WEISMANN: Thank you, your Honor.
24 a.m.] 9:50 a.m.
25
1 CERTIFICATE
6 above case.
11 name, this the 30th day of September, 2019.
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MR. SANDBERG: [3] 2/11 2/20 6/21
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MS. WEISMANN: [5] 2/7 7/21 7/23
am [2] 10/15 10/21 cloud [1] 10/14
9/1 11/21
American [1] 11/14 COLUMBIA [2] 1/2 12/4
THE COURT: [16]
Anne [2] 1/13 2/8 come [4] 4/17 4/21 7/10 8/2
THE DEPUTY CLERK: [1] 2/1
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ultimate [1] 5/12
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
v. ) No. 1:18-cv-1766-RBW
)
U.S. DEPARTMENT OF JUSTICE, )
) REDACTED
Defendant. )
_____________________________________ )
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 3
ARGUMENT .................................................................................................................................. 7
I. Under the Qualified Common-Law Right of Access,

Certain Transcript Portions Should Remain Sealed............................................................ 7
II. The Same Information Should Remain Sealed

Under the First Amendment Standard. ............................................................................. 15
CONCLUSION ............................................................................................................................. 19
i
TABLE OF AUTHORITIES1
CASES
Al-Turki v. U.S. Dep’t of Justice,

175 F. Supp. 3d 1153 (D. Colo. 2016) ...................................................................................... 11
Bevis v. Dep't of State,

801 F.2d 1386 (D.C. Cir. 1986) .................................................................................................. 1
Crystal Grower's Corp. v. Dobbins,

616 F.2d 458 (10th Cir. 1980) ..................................................................................................... 9
Ctr. for Nat'l Sec. Studies v. U.S. Dep’t of Justice,

331 F.3d 918 (D.C. Cir. 2003) .............................................................................................. 7, 18
EEOC v. Nat'l Children's Ctr., Inc.,

98 F.3d 1406 (D.C. Cir. 1996) .................................................................................. 8, 10, 13, 14
Friedman v. Sebelius,
672 F. Supp. 2d 54 (D.D.C. 2009) ............................................................................................ 13
Gilliard v. McWilliams,
No. 16-20007 (RC), 2019 WL 3304707 (D.D.C. July 23, 2019).............................................. 14
Hammouda v. U.S. Dep’t of Justice Office of Information Policy,

920 F. Supp. 2d 16 (D.D.C. 2013) ............................................................................................ 11
Heggestad v. U.S. Dep't of Justice,

182 F. Supp. 2d 1 (D.D.C. 2000) .......................................................................................... 3, 16
In re Fort Totten Metrorail Cases,

960 F. Supp. 2d 2 (D.D.C. 2013) .......................................................................................... 7, 16
In re Motions of Dow Jones & Co.,

142 F.3d 496 (D.C. Cir. 1998) ................................................................................................ 8, 9
In re Reporters Comm. for Freedom of the Press,

773 F.2d 1325 (D.C. Cir. 1985) .......................................................................................... 16, 18
LaRouche v. U.S. Dep't of Justice,

No. 90-2753 (HHG), 1993 WL 388601 (D.D.C. June 25, 1993) .......................................... 3, 16
1
This table has been modified, vis-à-vis the version accompanying to the sealed filing, to avoid disclosing material
in the sealed portion of the brief.
ii
Larson v. Dep’t of State,

565 F.3d 857 (D.C. Cir. 2009) .............................................................................................. 1, 11
Mapother v. Dep't of Justice,

3 F.3d 1533 (D.C. Cir. 1993) .................................................................................................... 14
Matter of Leopold to Unseal Certain Elec. Surveillance Applications & Orders,

300 F. Supp. 3d 61 (D.D.C. 2018), reconsideration denied sub nom.
Matter of Leopold, 327 F. Supp. 3d 1 (D.D.C. 2018) ......................................................... 10, 15
Matter of the Application of WP Co. LLC,

201 F. Supp. 3d 109 (D.D.C. 2016) ............................................................................................ 7
Press-Enters. Co. v. Superior Ct. of Cal. for Cty. of Riverside,

478 U.S. 1 (1986) .......................................................................................................... 15, 16, 17
Rockwell Int'l Corp. v. U.S. Dep't of Justice,

235 F.3d 598 (D.C. Cir. 2001) .................................................................................................. 10
SEC v. Am. Int'l Grp.,

712 F.3d 1 (D.C. Cir. 2013) .................................................................................................. 7, 18
United States ex rel. Durham v. Prospect Waterproofing, Inc.,

818 F. Supp. 2d 64 (D.D.C. 2011) ...................................................................................... 13, 15
United States v. Brice,

649 F.3d 793 (D.C. Cir. 2011) ............................................................................................ 15, 16
United States v. Deloitte LLP,

610 F.3d 129 (D.C. Cir. 2010) .................................................................................................. 10
United States v. El–Sayegh,

131 F.3d 158 (D.C. Cir. 1997) .................................................................................. 7, 10, 12, 14
United States v. Hubbard,

650 F.2d 293 (D.C. Cir. 1980) ........................................................................................... passim
United States v. Nixon,

418 U.S. 683 (1974) ............................................................................................................ 11, 14
W. Journalism Ctr.v. Office of Indep. Counsel,

No. 96-5178, 1997 WL 195516 (D.C. Cir. Mar. 11, 1997) ...................................................... 14
Zapp v. Zhenli Ye Gon,

746 F. Supp. 2d 145 (D.D.C. 2010) .......................................................................................... 13
iii
STATUTES
5 U.S.C. § 552 ................................................................................................................................. 4
REGULATIONS
28 C.F.R. § 16.4 .............................................................................................................................. 4
iv
DEFENDANT’S PARTIAL OPPOSITION TO MOTION TO UNSEAL TRANSCRIPTS

INTRODUCTION
Plaintiff asks this Court to unseal fully the transcripts of the ex parte sessions of the July
9, 2019, September 9, 2019, and September 30, 2019 status conferences in this case, during which
the Court probed government counsel about the details of a criminal investigation. Plaintiff makes
this request despite the fact that the once-sealed declaration of Special Agent Stephen Lyons of
the Department of Justice Office of Inspector General (“Lyons Decl”) has now been unsealed.
Lyons Decl., March 21, 2019, ECF Nos. 25, 27. The declaration identified the ongoing
enforcement proceeding underlying Defendant’s invocation of Freedom of Information Act
(“FOIA”) Exemption 7(A), categorized the records at issue, and explained how the unredacted
disclosure of the records in each category risked interfering with the ongoing enforcement
proceeding. Lyons Decl. ¶¶ 4, 6-10; Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(“An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its
burden to prove the applicability of the claimed exemption by affidavit . . . .” (citation omitted));
Bevis v. Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (explaining that an agency establishes
the applicability of Exemption 7(A) if, after identifying a relevant enforcement proceeding, it
“group[s] documents into relevant categories that are sufficiently distinct to allow a court to grasp
how each . . . category of documents, if disclosed, would interfere with the investigation” cleaned
up).
Plaintiff relies on two theories for demanding the transcripts of ex parte inquiries into the
strategy and work product of the attorneys conducting the underlying criminal investigation—a
common-law theory of access to judicial records, and a First Amendment theory of access.
Plaintiff’s arguments under both theories fail with respect to the following categories of
information: Information related to (1) the stage of the enforcement proceeding, July 9 Tr. at
5:13-19, 6:23-7:1; Sept. 9 Tr. at 3:9-12; (2) the timeline for the enforcement proceeding, July 9
Tr.at 6:4-7, 6:8-7:1; Sept. 9 Tr. at 3:5-9, 3:15-17, 4:1-2; Sept. 30 Tr. at 4:20-21; (3) the materials
1
relied on in the enforcement proceeding, July 9 Tr. at 18:18-19:1; and (4) an assessment of the
enforcement proceeding, Sept. 30 Tr. at 4:2-5.
Plaintiff’s arguments under the common-law theory of access are unpersuasive. Courts in
this circuit commonly apply a six-factor test to determine whether a plaintiff has a common-law
right of access. But the Court need not apply that test here because important policy reasons justify
the continued sealing of the information in the categories described above, which constitutes
protected prosecutorial work product. In any case, Defendant will demonstrate, in step-by-step
fashion, how, if the six-factor test applies, a proper application of that test establishes that
Plaintiff’s argument should be rejected with respect to the categories of information specified
above. The crux of the matter is this: Public access to judicial records is intended to facilitate the
public’s ability to assess the operations of the courts. But revealing the categories of information
about the underlying criminal investigation would be akin to unlocking the prosecutor’s file
cabinet, and that is not necessary to evaluate the Court’s performance in this FOIA case. There
is simply no right of access under the common law to the information in the categories identified
for continued sealing.
Plaintiff’s arguments under First Amendment fare no better. Under the First Amendment,
courts apply a two-part test: (1) is there a qualified right of access, and (2) if so, is there another
interest that overrides the public interest in access. In this case, the answers to these questions are
“no” and “yes” respectively. No, there is no qualified right of access because there is no history
of access to prosecutorial work product ,
and access to such information would not be beneficial to the functioning of government. Indeed,
2
revealing a prosecutor’s work product would undermine
the government’s prosecutorial function. Thus, such materials are traditionally protected. See
generally, Heggestad v. U.S. Dep't of Justice, 182 F. Supp. 2d 1, 10 (D.D.C. 2000) (concluding
that memorandum regarding declination of prosecution is protected work product); LaRouche v.
U.S. Dep't of Justice, No. 90-2753 (HHG), 1993 WL 388601, at *11 (D.D.C. June 25, 1993)
(determining that memorandum containing recommendations regarding prosecution is protected
work product).
But even if there were a right of access, it would be
overridden by compelling interest .
Accordingly, the Court should deny the motion with respect to the following transcript
excerpts: the July 9 Transcript at 5:13-6:7, 6:8-7:1, 18:18-19:1; the September 9 Transcript at 3:5-
17, 3:20-24, 4:1-2; and the September 30 Transcript at 3:8-10, 12-18, 4:2-5, 4:20-21.
BACKGROUND
On March 19, 2018, Plaintiff submitted a FOIA request to the FBI for “all documents
related to any investigation or inquiry conducted by the FBI’s Office of Professional Responsibility
(“OPR”) of, involving, or relating to former FBI Deputy Director Andrew McCabe, who was fired
by Attorney General Jeff Sessions on March 16, 201[8].” See FOIA Request (Ex. 1 to Mtn. for
Summ. J., March 21, 2019, ECF No. 24-3).
In the course of its review of the OPR file, the FBI identified various documents that were
compiled or created by the Department of Justice’s Office of Inspector General (“OIG”) during its
investigation of former Deputy Director McCabe, see OIG, A Report of Investigation of Certain
Allegations Relating to Former FBI Deputy Director Andrew McCabe, February 2018, available
at https://oig.justice.gov/reports/2018/o20180413.pdf (“OIG Rpt.”). Given OIG’s interest in these
documents, some were referred to OIG for it to provide a response directly to the requestor, while
others were the subject of consultation between the FBI and OIG; the FBI retained the
responsibility of responding to Plaintiff as to documents that were the subject of consultation. See
3
28 C.F.R. § 16.4(d) (“[w]hen reviewing records . . . in response to a request, the component [of
the Department of Justice] shall determine whether another component or another agency of the
Federal Government is better able to determine whether the record is exempt from disclosure under
the FOIA[,]” and shall consult with the other component or agency or refer the records to such
component or agency, if appropriate).
The Court issued a processing schedule for the FBI: it required the FBI to process 500
pages the first month, and 750 pages per month thereafter. Order, Oct. 3, 2018, ECF No. 10. The
parties subsequently disagreed about the applicability of that schedule to OIG. See Motion for
Clarification and for Processing Schedule (“Mtn. to Clarify”), Nov. 20, 2018, ECF No. 14; Pl.’s
Opp. to Def.’s Mtn. for Clarification and for Processing Schedule, Nov. 26 2018, ECF No. 15.
Defendant argued that the schedule was inapplicable, and that a much more modest schedule would
be appropriate. Mtn. to Clarify at 2. Its argument relied, in part, on OIG’s resource limitations.
Id. at 6. But Defendant also relied on the mechanics of applying Exemption 7(A) in this context.
Under Exemption 7(A), an agency may withhold “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information could reasonably be expected to interfere with enforcement proceedings[.]”
5 U.S.C. § 552(b)(7)(A). Redacting sensitive documents, such as those compiled or created by an
OIG investigation, to account for FOIA exemptions is in and of itself time consuming work.
Declaration of Ofelia C. Perez, Government Information Specialist, OIG, March 21, 2019, ¶ 13
(“Perez Decl.”) (attached as Ex. 4-2 to Def.’s Mtn. for Summ. J., ECF No. 24). But here that task
was further complicated by the publicly issued OIG Report. To avoid withholding information
already made public in the OIG Report, OIG had to compare the redacted information with the 35-
page report. Id. This was an extremely time consuming process. Id.
After Plaintiff challenged Defendant’s use of Exemption 7(A), the parties filed cross
motions for summary judgment regarding its applicability. Defendant explained that it had
redacted material that, if released, would reasonably be expected to interfere with pending or
reasonably anticipated enforcement proceedings, and that no segregable, nonexempt information
4
had been withheld. Mem. in Supp. of Mtn. for Partial Summ. J., March 21, 2019, ECF No. 24, at
2. In support of its motion Defendant filed, under seal and ex parte, the Declaration of Office of
Inspector General Special Agent Stephen F. Lyons, March 21, 2019, ECF. No. 25, 27. The
declaration identified the ongoing enforcement proceeding, categorized the records at issue, and
explained how the unredacted disclosure of the records in each category risked interfering with the
ongoing enforcement proceeding. Lyons Decl. ¶¶ 4, 6-10.
Following a status conference on June 21, 2019, the Court issued an order stating that the
parties shall “appear before the Court for a status conference on July 9, 2019, at 2:30 p.m., at which
time the defendant, or another representative of the government, shall be prepared to address the
Court’s questions regarding whether the [Lyons] declaration that was filed ex parte and under seal
should remain under seal.” Order, June 24, 2019, ECF No. 34. Assistant United States Attorney
J.P. Cooney, Chief of the Fraud and Public Corruption Section at the United States Attorney’s
Office for the District of Columbia, appeared at the July 9, 2019 status conference to answer the
Court’s questions about the enforcement proceeding. Prior to its colloquy with Mr. Cooney, the
Court stated, “I think it's appropriate to hear from the government ex parte regarding the concern
that I had.” July 9 Tr. at 2:20-21. Following the hearing, the Court “maintain[ed] the Lyon's
declaration under seal” and set a status conference for September 9, 2019. Id. at 19:7-8.
At the September 9 status conference, the Court stated that, at the July 9 hearing, it took
“an ex parte representation from the government about the status of the investigation being
conducted in this case,” Sept. 9 Tr. at 2:16-18, and asked if the government was able to make a
public representation about the investigation, id. at 2:18-20. Counsel for defendant answered no,
id. at 2:21-22, and an ex parte discussion involving Mr. Cooney took place. Following the ex parte
session, the Court stated, “we'll be in a better position in a couple of weeks to know exactly where
the underlying matters [are] going, how that's going to proceed, and then be able to move this
matter forward.” Id. at 4:7-10. The Court set another status conference for September 30.
Near the start of the September 30 status conference, at which Mr. Cooney again joined
counsel for Defendant, the Court asked whether the “decision as to what the government intends
5
to do in reference to Mr. McCabe has . . . been made,” and whether “we need to have further
discussions ex parte in reference to that?” Sept. 30 Tr. at 2:17-20. Counsel for Defendant stated
that further discussions on that topic should be ex parte. Id. at 2:21. The Court and Mr. Cooney
thereafter discussed the enforcement proceedings, including the timeline for its completion.
Following the ex parte discussion (and some remarks by Plaintiff counsel), the Court announced
that “on the next occasion if the government has not made a call [regarding the disposition of the
enforcement proceeding] I'm going to make a ruling. And I am going to at that point, because I
do think it's been a long time and this is just dragging too long. And those who have to make these
hard decisions need to do it. And if they don't, I'm going to start ordering the release of
information.” Sept. 30 Tr. 10:19-25. The Court eventually set another status conference for
November 14, 2019. Minute Order, Oct. 18, 2019.
Prior to the November 14, 2019 status conference, Defendant withdrew its invocation of
Exemption 7(A) over the documents at issue in the FOIA suit. Notice of Withdrawal of Exemption
7(A) and Mtn. to Excuse U.S. Attorney’s Office Official, Nov. 13, 2019, ECF No. 36. Following
the status conference, the Court issued an order requiring OIG to process 200 pages per month,
starting in December 2019. Order, Nov. 15, 2019, ECF No. 38. The Court also unsealed the Lyons
Declaration. Id.
The Lyons declaration identifies the enforcement proceeding underlying Defendant’s
erstwhile invocation of Exemption 7(A): “DOJ-OIG referred an allegation that former FBI Deputy
Director Andrew McCabe made false statements to law enforcement officials about the disclosure
of law enforcement sensitive information to the media . . . [and] [t]he U.S. Attorney's Office for
the District of Columbia is investigating the referral to determine whether criminal charges against
McCabe are warranted.” Lyons Decl. ¶¶ 3-4. It also categorizes the documents at issue, id. ¶¶
7.a.-7.c., and explains across two pages how the “[u]nredacted disclosure of the Subject
Documents risks interfering with the ongoing criminal investigation,” id. ¶ 8.
6
Twelve days after the status conference (and on the Tuesday afternoon before
Thanksgiving), Plaintiff filed its motion to unseal the July 9, September 9, and September 30
Transcripts.
ARGUMENT
Plaintiff argues that the Court should unseal, in full, the sealed portions of the transcripts
from the July 9, September 9, and September 30 status conferences of this year. Plaintiff’s
arguments fail. Many of the statements made by counsel for the government in these ex parte
sessions contain information properly withheld from the public record. Similarly, statements made
by the Court that reveal the contents of confidential information provided by Defendant should
also remain under seal.
Whether to unseal judicial records depends on whether there is a public right of access to
those records. As a general matter, courts have recognized two qualified rights of access to judicial
records: (1) a common-law right of access, and (2) a First Amendment right of access. See United
States v. El–Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997). Notably, this Court has recognized
that “the District of Columbia Circuit has expressed doubts about whether the First Amendment
right of access applies outside of the criminal context[.]” In re Fort Totten Metrorail Cases, 960
F. Supp. 2d 2, 6 (D.D.C. 2013); see SEC v. Am. Int'l Grp., 712 F.3d 1, 5 (D.C. Cir. 2013); Ctr. for
Nat'l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 935 (D.C. Cir. 2003). Perhaps in
recognition of this fact, Plaintiff’s motion starts with, and focuses on, the common-law right of
access. See Pl.’s Mtn. to Unseal (“Mtn. to Unseal”), Nov. 26, 2019, ECF No. 40, at 5-9. This
brief will do the same.
I. Under the Qualified Common-Law Right of Access, Certain Transcript

Portions Should Remain Sealed.
To determine whether a covered judicial record must be disclosed, the court must “balance
the government's interest in keeping the document secret against the public's interest in disclosure.”
Matter of the Application of WP Co. LLC, 201 F. Supp. 3d 109, 118 (D.D.C. 2016) (citation
omitted). When evaluating claims under the common-law approach, courts in this circuit apply
7
I had anticipated when I was here three weeks ago that the status of
the matter would be public. That prediction was obviously incorrect.
Other information from the transcripts should remain under sealed. Specifically, the Court
should not unseal information related to (1) the stage of the enforcement proceeding, July 9 Tr. at
5:13-19, 6:23-7:1, Sept. 9 Tr. at 3:9-12; (2) the timeline for the enforcement proceeding, July 9
Tr.at 6:4-7, 6:8-7:1, Sept. 9 Tr. at 3:5-9, 3:15-17, 4:1-2; Sept. 30 Tr. at 4:20-21 (3) the materials
relied on in the enforcement proceeding, July 9 Tr. at 18:18-19:1, and (4) an assessment of the
enforcement proceeding, Sept. 30 Tr. at 4:2-5.
The Court need not employ the Hubbard balancing test to determine that this information
should remain under seal, because the information at stake in these categories constitutes
prosecutorial work product, and “important policy reasons” justify maintaining the confidentiality
of such information. In re Motions of Dow Jones & Co., 142 F.3d at 504 (cleaned up); see Crystal
Grower's Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980) (maintaining documents under
9
seal after noting that “[p]ointing in the . . . direction [of sealing], however, is the public interest
expressed in the doctrines of attorney-client privilege and work product immunity; a decision
circumventing these doctrines poses a significant threat to the free flow of communications
between clients and their attorneys and inhibits the ability of lawyers to adequately prepare their
clients' cases”). The information reflects facts gathered, and opinions and assessments made, in
the course of working on the criminal investigation of Mr. McCabe. This is work product. See
United States v. Deloitte LLP, 610 F.3d 129, 134, 136 (D.C. Cir. 2010) (explaining that work
product encompasses facts assembled and theories generated in anticipation of litigation, even
when in “intangible” form rather than documents). And such work product is protected for
important policy reasons, namely, “the integrity of our system would suffer if adversaries were
entitled to probe each other's thoughts and plans concerning the case.” Rockwell Int'l Corp. v. U.S.
Dep't of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001) (cleaned up). That logic applies here, for, as
explained in the declaration of Assistant United States Attorney J.P. Cooney, revealing this
information could set a precedent that
could negatively affect enforcement proceedings. See Cooney Decl., Dec. 10, 2019, ¶¶ 9-14
(attached). Thus, the information in the specified categories should remain under seal.
But even if the Court applies the Hubbard six-factor test, the conclusion is the same: The
specified information should remain sealed. The first consideration is “the need for public access
to the documents at issue.” Nat'l Children's Ctr., 98 F.3d at 1409. This factor weighs in favor of
the information in the four specified categories remaining under seal. That the Court considered
(at least some of) this information in determining whether to uphold Defendant’s invocation of
Exemption 7(A) points in the direction of unsealing. Id. But this fact is outweighed by others.
Public access to judicial records is intended to facilitate the public’s ability to assess the operations
of the courts. See El–Sayegh, 131 F.3d at 163; Matter of Leopold to Unseal Certain Elec.
Surveillance Applications & Orders, 300 F. Supp. 3d 61, 80 (D.D.C. 2018), reconsideration denied
sub nom. Matter of Leopold, 327 F. Supp. 3d 1 (D.D.C. 2018). The information in the delineated
categories, however, is not needed to assess the propriety of the Court’s upholding of Defendant’s
10
invocation of Exemption 7(A). Defendant submitted the Lyons Declaration in support of its
reliance on the exemption. And that declaration, which the Court recently unsealed, Order, Nov.
15, 2019, ECF No. 38, established that there was an ongoing enforcement proceeding and that the
release of the withheld information would prejudice that proceeding. See id. This sufficed to
uphold Defendant’s invocation of Exemption 7(a). See Larson, 565 F.3d at 862 (“An agency that
has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove
the applicability of the claimed exemption by affidavit . . . .” (citation omitted)).
Details about an enforcement proceeding, even one underlying an invocation of Exemption
7(A), are not the proper subject of a FOIA case and, therefore, this information is not needed to
evaluate the Court’s performance in this case. See, e.g., Al-Turki v. U.S. Dep’t of Justice, 175 F.
Supp. 3d 1153, 1192 (D. Colo. 2016) (concluding that while some of the information protected
under Exemption 7(A) may stretch back ten years, "Exemption 7(A) has been held to apply to
long-term investigations"); Hammouda v. U.S. Dep’t of Justice Office of Information Policy, 920
F. Supp. 2d 16, 24 (D.D.C. 2013) (holding that the age of the withheld documents did not undercut
the defendant’s showing that law-enforcement proceeding remained pending). Put otherwise, the
invocation of Exemption 7(A) in a FOIA suit is not a license for a plaintiff to superintend the
Executive’s discharge of its prosecutorial function, which is committed to it by the Constitution.
See United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive
authority and absolute discretion to decide whether to prosecute a case . . . .”). Thus, there is no
public “need” for information about how well a court may be assisting a plaintiff in performing
that oversight function. Indeed, there is no generally recognized “need” for public access to
documents about
The need for the
information to remain under seal is particularly strong when, as here, the information is protected
prosecutorial work product,
11
The government’s conduct in criminal matters, including that of the courts, can
be assessed through open criminal proceedings if and when prosecutions are brought.
Plaintiff argues that there is “an overriding public interest in providing full access to the
government’s complete rationale for keeping OIG materials secret for well over a year.” Mtn. to
Unseal at 1-2. Stripping away the hyperbole, Plaintiff seems to be arguing that the public has an
interest in understanding the government’s rationale for invoking Exemption 7(A). As an initial
matter, public access to judicial records is designed to facilitate evaluation of the courts; it is not a
key to prosecutor’s file cabinets. See El–Sayegh, 131 F.3d at 163. And the public’s legitimate
interest in assessing the Court’s decision to uphold Defendant’s invocation of Exemption 7(A) was
served by the unsealing of the Lyons declaration, which was filed by Defendant in support of its
summary judgment motion defending the invocation of Exemption 7(A). Revealing confidential
details of the enforcement proceeding will not further the public’s legitimate interest in assessing
the Court’s operation in this FOIA case.
Plaintiff also maintains that “[t]he need for public access . . . weighs heavily in favor of
unsealing the Transcripts” because “Mr. McCabe’s firing has drawn significant media attention
and public interest, an interest that has only increased over time with the mounting evidence
suggesting politically motivated actions by DOJ officials.” Mtn. Unseal at 7. There is no such
“mounting evidence,” and in any event, public interest does not pierce attorney-work product
protection. (In the past, to support statements like the one about mounting evidence, Plaintiff has
relied on allegations in the complaint filed by Mr. McCabe challenging his dismissal, see, e.g.,
Pl.’s Opp. to Def.’s Mtn. to Excuse USAO Official, Nov. 13, 2019, ECF. No. 37, at 2-3, but
allegations in complaint are not evidence, and the government has moved for dismissal and
summary judgment in that suit, McCabe v. Barr, et al., 19-2399 (RDM), Nov. 1, 2019, ECF No.
23.) But, in any case, the transcripts address the enforcement proceeding that was the basis for the
invocation of Exemption 7(A); they do not address the basis for Mr. McCabe’s dismissal from the
FBI. Plaintiff’s argument is unpersuasive.
12
The second Hubbard factor is the “extent of previous public access to the documents[.]”
Nat'l Children's Ctr., 98 F.3d at 1409. Previous public access weighs in favor of unsealing, while
a lack of access weighs against unsealing. See Hubbard, 650 F.2d at 318. This factor too weighs
against unsealing. As Plaintiff admits, “the content of the ex parte discussions between DOJ
officials and the Court has never been publicly available.” Mtn. to Unseal at 7. Plaintiff tries to
counter this fact by arguing that the sealed portions of the transcripts “pertain[ ] directly to the
Lyons Declaration, which has now been unsealed in full.” Id. But Plaintiff’s revelation-by-
association argument fails: the information in the transcripts is not the same as the information in
the Lyons declaration, so this factor weighs against unsealing. See Zapp v. Zhenli Ye Gon, 746 F.
Supp. 2d 145, 149 (D.D.C. 2010) (factor weighs in favor of unsealing when information is in
public forum).
The third factor to consider is whether “someone has objected to disclosure,” and if so,
“the identity of that person[.]” Nat'l Children's Ctr., 98 F.3d at 1409. The fact that a party objects
to disclosure weighs against disclosure. United States ex rel. Durham v. Prospect Waterproofing,
Inc., 818 F. Supp. 2d 64, 68 (D.D.C. 2011). Thus, this factor too weighs against disclosure. As
for the fourth factor, Defendant does not assert any property or privacy interests.
The fifth factor—“the possibility of prejudice to those opposing disclosure[,]” Nat'l

Children's Ctr., 98 F.3d at 1409—weighs against unsealing. The possibility of prejudice refers to
“whether disclosure of the documents will lead to prejudice in future litigation to the party seeking
the seal.” Friedman v. Sebelius, 672 F. Supp. 2d 54, 60 (D.D.C. 2009). Disclosure of the
information sought would prejudice Defendant’s ability to resolve the McCabe matter, and could
otherwise prejudice Defendant. Cooney Decl. ¶¶ 9-14. Plaintiff argues that, by withdrawing its
invocation of Exemption 7(A), “DOJ has conceded that there is a low risk of prejudicing future
litigation at least from the disclosure of the fact that DOJ is investigating Mr. McCabe—which
presumably is what the ex parte discussions were all about.” Mtn. to Unseal at 8. But the
information in the records and the sealed transcript portions is not identical, and, as explained in
13
the Cooney Declaration, disclosure of the information from the sealed transcripts would prejudice
Defendant. Cooney Decl. ¶¶ 9-14.
Finally, the last factor—“the purposes for which the documents were introduced during the
judicial proceedings,” Nat'l Children's Ctr., 98 F.3d at 1409—weighs against unsealing. There is
“less of a pressing concern to unseal [records] if they are not relevant to the claims[.]” Gilliard v.
McWilliams, No. 16-20007 (RC), 2019 WL 3304707, at *5 (D.D.C. July 23, 2019) (quotation
marks omitted). As discussed above in addressing the first Hubbard factor, the identified sections
of the sealed transcript portions are not relevant to this FOIA case. These portions of the sealed
sections of the transcripts address the timeline for completion of, and details about, the underlying
enforcement proceeding. But such information, while relevant to the Executive’s exclusive
authority to prosecute a case, Nixon, 418 U.S. at 693, is not relevant to FOIA—or, more
specifically, the Court’s performance in handling a FOIA case, see El-Sayegh, 131 F.3d at 163—
even when a defendant invokes Exemption 7(A). With respect to the invocation of Exemption
7(A), the relevant question about the enforcement proceeding is whether it is “pending or
reasonably anticipated.” Mapother v. Dep't of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993). An
open criminal investigation is a pending law enforcement proceeding under Exemption 7(A), W.
Journalism Ctr. v. Office of Indep. Counsel, No. 96-5178, 1997 WL 195516, at *1 (D.C. Cir. Mar.
11, 1997) (per curiam) (holding that “a pending criminal investigation which could lead to a
prosecution is an enforcement proceeding within the meaning of exemption 7(A) of the Freedom
of Information Act”), and the propriety of the Court’s upholding of defendant’s invocation of
Exemption 7(A) does not turn on whether, in exercise of its exclusive prosecutorial authority, the
Executive is moving fast enough for Plaintiff’s liking. Plaintiff argues the transcripts should be
unsealed because they provide “the justification for significantly delaying public access to critical
information on the real basis for Mr. McCabe’s abrupt termination.” Mtn. to Unseal at 8. But as
explained above, the public does not need details about a criminal investigation to assess the
Court’s performance in this FOIA case. Thus, this factor weighs against unsealing.
14
In short, under the test for common-law access to judicial records, all but one of the six
factors weighs against unsealing the information in the four categories described earlier. And “[i]n
addition, the most significant factors concerning the need for public access, the strength of the
interests involved, and the comparative prejudice all militate against [un]sealing” the specified
information. Prospect Waterproofing, Inc., 818 F. Supp. 2d at 69. Thus, the Court should not
unseal the following transcript excerpts: the July 9 Transcript at 5:13-6:7, 6:8-7:1, 18:18-19:1;
the September 9 Transcript at 3:5-17, 3:20-24, 4:1-2; and the Sept. 30 Transcript at 3:8-10, 12-18,
4:2-5, 4:20-21.
II. The Same Information Should Remain Sealed Under the First Amendment
Standard.
Courts apply a two-step test to assess a claimed right of access under the First Amendment.
See United States v. Brice, 649 F.3d 793, 795-96 (D.C. Cir. 2011). “The inquiry's first step,
sometimes called the experience and logic test, is to determine whether a qualified right of access
exists.” Matter of Leopold, 300 F. Supp. 3d at 80 (cleaned up). A qualified right of access exists
under the First Amendment if “(i) there is an unbroken, uncontradicted history of openness” Brice,
649 F.3d at 795 (cleaned up), and (ii) “public access plays a significant positive role in the
functioning of the particular process in question.” Press-Enters. Co. v. Superior Ct. of Cal. for
Cty. of Riverside, 478 U.S. 1, 8 (1986) (citation omitted). If there is a qualified right of access,
then the court moves to the second step. At the inquiry’s second step, the court determines whether
there is an “overriding interest” that outweighs the interest in disclosure. Matter of Leopold, 300
F. Supp. 3d at 81 (cleaned up). “Where there is a First Amendment right of access to a judicial
proceeding, the presumption of access can be overridden only if (1) closure serves a compelling
interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest
would be harmed; and (3) there are no alternatives to closure that would adequately protect the
compelling interest.” Brice, 649 F.3d at 796 (cleaned up).
Plaintiff has no right of access to the four categories of information identified in the first
section, i.e., information regarding (1) the stage of the enforcement proceeding, (2) the timeline
15
for the enforcement proceeding, (3) the materials relied on in the enforcement proceeding, and (4)
an assessment of the enforcement proceeding.
First, there is no qualified right of access to the information in the four categories. As noted
earlier, and as this Court has previously noted, the D.C. Circuit has not recognized a First
Amendment right of access to records of civil proceedings. Rather, the “District of Columbia
Circuit has expressed doubts about whether the First Amendment right of access applies outside
of the criminal context[.]” In re Fort Totten Metrorail Cases, 960 F. Supp. at 6. But even if there
is a qualified First Amendment right of access to certain information in civil proceedings, the
“relevant inquiry” is “whether information of the sort at issue here—regardless of its prior or
current classification as court records—was traditionally open to public scrutiny.” In re Reporters
Comm. for Freedom of the Press, 773 F.2d 1325, 1337 (D.C. Cir. 1985) (emphasis added and
omitted). There is no “unbroken, uncontradicted history,” Brice, 649 F.3d at 795 (cleaned up), of
access to information related to prosecutorial work product,
. To the contrary, such information historically has been viewed as
confidential. See, e.g., Heggestad, 182 F. Supp. 2d at 10 (concluding that memorandum regarding
declination of prosecution is work product protected from disclosure); LaRouche, 1993 WL
388601, at *11 (determining that memorandum containing recommendations regarding
prosecution is work product protected from disclosure);
The “logic” portion of the “experience and logic” test yields the same result: there is no
right of access to the specified portions of the sealed transcript sections. Public access to
prosecutorial work product would not play
a “significant positive role in the functioning of the particular process in question.” Press-Enters.
16
Co., 478 U.S. at 8 (citation omitted). To the contrary,
. Id. at 8-9 (“[I]t takes little
imagination to recognize that there are some kinds of government operations that would be totally
frustrated if conducted openly.”). Indeed, a court in this District has recognized this very point,
concluding albeit in different circumstances, that logic militates against recognizing a right of
access because
The Cooney Declaration details that harm here. Cooney Decl.
¶¶ 9-14. And as noted earlier, the government’s conduct in criminal matters, including that of the
courts, can be assessed through open criminal proceedings if and when prosecutions are brought.
17
With respect to the “experience” element of the experience and logic test, Plaintiff contends
that “the historic openness of court arguments to the general public and the press presents a
compelling case for public access to transcripts of the ex parte testimony from DOJ officials.”
Mtn. to Unseal at 9. But the D.C. Circuit has expressed doubt about whether the right of access
extends outside the criminal context. Am. Int'l Grp., 712 F.3d at 5; Ctr. for Nat'l Sec. Studies, 331
F.3d at 935. And in any event, the court of appeals has also recognized that the “relevant inquiry”
is not the abstract one of whether there is a right to records of civil proceedings in some contexts,
but “whether information of the sort at issue here—regardless of its prior or current classification
as court records—was traditionally open to public scrutiny.” In re Reporters Comm. for Freedom
of the Press, 773 F.2d at 1337 (emphasis omitted). As explained above, prosecutorial work product
have not been “traditionally open to public
scrutiny.”
Plaintiff’s argument on the logic prong of the test fares no better. Plaintiff argues that “[t]o
bar the public from learning why until now this information [in the records sought in the FOIA
action] has been kept secret risks undermining the public’s ability to fully evaluate the basis for
the government’s arguments as to why critical information remains exempt from public disclosure
as well as the underlying decision itself to terminate Mr. McCabe.” Mtn. to Unseal at 10. But
there is no mystery about the basis for Defendant’s prior withholding of information under
Exemption 7(A). It was spelled out in Defendant’s summary judgment brief and in the Lyons
Declaration, which was recently unsealed. Order, Nov. 14, 2019, ECF No. 38. And the
information in the sealed transcript pertained directly to the enforcement proceeding, not to the
basis for Mr. McCabe’s removal. Plaintiff’s argument is unpersuasive.
Second, even if there were a qualified right of access under the First Amendment, with
respect to the four specified categories of information, that right would be overridden
18
Date: December 10, 2019 Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
ELIZABETH J. SHAPIRO
Deputy Branch Director
s/Justin M. Sandberg
JUSTIN M. SANDBERG (Ill. Bar. No.
6278377)
Senior Trial Counsel
U.S. Department of Justice, Civil Division
Federal Programs Branch
1100 L Street NW, Room 11004
Tel.: (202) 514-5838
Fax: (202) 616-8460
Email: justin.sandberg@usdoj.gov
Counsel for Defendant
20

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Case 1:18-cv-01766-RBW Document 54 Filed 02/14/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

CITIZENS FOR RESPONSIBILITY )

Court’s January 30, 2020 Order (ECF No. 50):

1) Transcript of July 9, 2019 Status Conference;

2) Transcript of September 9, 2019 Status Conference;

3) Transcript of September 30, 2019 Status Conference;

4) Defendant’s Partial Opposition to Motion to Unseal Transcripts;

5) Declaration of J.P. Cooney, December 10, 2019.

Date: February 14, 2019 Respectfully submitted,

Counsel for Defendant

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF COLUMBIA

3 CITIZENS FOR RESPONSIBILITY .

9 TRANSCRIPT OF STATUS CONFERENCE

10 BEFORE THE HONORABLE SENIOR JUDGE REGGIE B. WALTON

11 UNITED STATES DISTRICT JUDGE

13 For the Plaintiff: Anne L. Weismann, Chief FOIA Counsel

21 Court Reporter: Cathryn J. Jones, RPR

24 Proceedings recorded by machine shorthand, transcript

2 THE DEPUTY CLERK: Your Honor, this is Civil

3 Action 18-362 [sic], Citizens For Responsibility and Ethics

4 In Washington versus the U.S. Department of Justice.

5 Going to ask counsel, please approach the podium,

6 state your appearance for the record, introduce any parties

8 MS. WEISMANN: Good afternoon, your Honor, Anne

9 Weismann on behalf of CREW.

10 THE COURT: Good afternoon.

11 MR. SANDBERG: Good afternoon, your Honor, Justin

12 Sandberg for the Department of Justice. Also with me at

13 counsel table is Madeleine Hensler from the U.S. Department

14 of Justice, Office of Inspector General and Assistant U.S.

15 Attorney, J.P. Cooney.

16 THE COURT: Good afternoon. I set this matter

17 because I had a question to inquire of the government about,

18 and since at least at this point there is a sufficient

19 predicate to maintain the submission that was made to me

20 under seal, I think it's appropriate to hear from the

21 government ex parte regarding the concern that I had. So

22 I'll have to order that counsel for the plaintiff wait

23 outside and anybody else associated with plaintiffs.

24 [Ex parte discussion outside presence of

1 THE COURT: As counsel knows this matter regards a

2 FOIA request for documents related to the investigation of

3 former FBI deputy director Andrew McCabe. And at the last

4 hearing I had agreed before that to permit a declaration to

5 be filed under seal. And before concluding that that should

6 continue and for how long, I thought it was appropriate to

7 get some insight from the prosecutor in this case as to what

8 the status of this matter is and how long it's anticipated

9 the investigation will be ongoing.

10 Because I think to permit the investigation to go

11 on infinitum really undercuts the purpose of the Freedom of

12 Information Act since it is designed to provide a means by

13 which the American public can know what its government is up

14 to obviously, if the investigation is still in its

15 investigative stage. And if it's reasonable that it be

16 ongoing for at least some period of time I obviously would

17 consider maintaining that declaration under seal. But I

18 need to hear from government counsel as to how long it's

19 anticipated this matter will be, being considered by the

20 office of the United States Attorney's Office and the Grand

21 Jury if it's been presented to the Grand Jury.