Today, Gizmodo’s parent company, Gizmodo Media Group, filed a Freedom of Information Act complaint in a New York federal district court against the Department of Justice, seeking the warrant applications that the FBI used to justify surveillance against Trump campaign officials and their associates.
Those warrant applications—presented to the Foreign Intelligence Surveillance Court, which secretly authorizes wiretaps for intelligence purposes—were the apparent spark for Donald Trump’s March 4 Twitter outburst accusing the Obama administration of having “had my ‘wires tapped’ in Trump Tower.”
Trump’s claim that Barack Obama had directed surveillance against him was false (there is no legal mechanism for any president to unilaterally order wiretapping). But the FBI was pursuing some sort of counterintelligence mission involving the Trump camp. There is a wealth of reporting that the Trump campaign or its associates were subject to some sort of eavesdropping, authorized by an FISC judge at the request of the Department of Justice’s National Security Division.
Because the warrant applications may clarify the scope of investigators’ interest in Trump’s circle, and the scope of federal eavesdropping practices generally, we want to see them, as well as any other information submitted to the court regarding the Trump surveillance.
Warrant applications to the FISC are typically classified, and under normal circumstances, the government will not only refuse to release them in response to FOIA requests—it will refuse to even confirm or deny whether they exist at all. This is known as a “Glomar response,” after a famous FOIA case in which the CIA refused to confirm or deny the existence of records about the Glomar Explorer, a ship that was secretly used to salvage a sunken Soviet submarine.
When Kel McClanahan, an attorney with the public interest law firm National Security Counselors, filed a FOIA request for the warrants on our behalf last month, that’s exactly what we got: The Justice Department refused “to confirm or deny the existence of any records responsive to your request because the existence or nonexistence of any responsive records is currently and properly classified.”
The problem with that argument is that the president of the United States has already confirmed that the warrants do exist, by tweeting about them.
His tweets confirm:
• That electronic surveillance was conducted;
• That it was targeted against Trump Tower;
• That it was conducted in October;
• That it had been preceded by an earlier application to a court, which had been denied.
What’s more, the tweets—posted on March 4—claimed that Trump had “just found out” about the surveillance. As it happens, on the day before, Breitbart, a news outlet closely aligned with the White House, had published a post laying out a web of very specific prior reporting from Heat Street, the New York Times, the Washington Post, and others, making the case that the Department of Justice had directed two warrant applications against Trump associates prior to the election. In Breitbart’s interpretation of events, the contents of those collected communications were then leaked in service of a “silent coup.”
In other words, Trump’s tweets validated—from Trump’s perspective, at least—the facts alleged in the Breitbart post. Under the legal doctrine of “prior disclosure,” the government waives its rights to claim exemptions under FOIA if it has previously disclosed the information it is trying to protect.
Our complaint, filed on our behalf by McClanahan, maintains that when Trump disclosed the existence of the warrants, he waived the government’s right to claim that the existence of the warrants is classified. The Justice Department must therefore process our request and release those portions of the warrants that aren’t covered by any other FOIA exemptions.
We aren’t the first to file such a case—USA Today reporter Brad Heath, with the help of the James Madison Project, is seeking the same documents in a Washington, D.C., federal court, with some of the same arguments. (A group called American Oversight has filed a similar case in Washington, D.C.) But we are the first to do so in the Second Judicial Circuit, of which New York is a part. We believe case law in the Second Circuit on the issue of prior disclosure is more favorable to us in New York than it is in Washington, D.C.
We filed today. You can read our complaint here. We’ll let you know how it goes.