On May
9, 2017, President Donald Trump fired James Comey as Director
of the Federal Bureau of Investigation. In the fallout from
that event, news rapidly circulated about numerous private
conversations between the two men over the preceding months.
The exchanges left the former Director feeling unnerved and,
apparently, wanting a paper trail. On June 8, Comey testified
publicly that while still in office, he had created several
contemporaneous memoranda documenting up to nine
conversations with the President. The content of those memos
has since been the subject of intense public speculation and
is the focus of these consolidated cases.

Plaintiffs,
which include various news organizations and non-profits, all
sought copies of the so-called Comey Memos via a
tried-and-true method: The Freedom of Information Act, 5
U.S.C. § 552 et seq. The Government denied each
request, claiming that the release of these documents would
interfere with the Office of Special Counsel's ongoing
investigation into links between Russia and Trump's 2016
campaign team. Plaintiffs then brought these suits, and both
sides now seek summary judgment. After reviewing the Memos
in camera, as well as receiving a sealed ex
parte proffer from the Special Counsel's Office, the
Court agrees with the Government's assessment. As it
prevails here, the Comey Memos, at least for now, will remain
in the hands of the Special Counsel and not the public.

I.
Background

Drawing
from public reports, the Court begins by recounting the
now-familiar story of Comey's termination, as well as his
much-discussed Memos. (The appointment of and investigation
by the Special Counsel will be covered in Part III,
infra.) It then outlines the procedural history of
this case.

A.
Factual Background

On
March 20, 2017, then-Director Comey confirmed in public
testimony “that the FBI, as part of our
counterintelligence mission, is investigating the Russian
government's efforts to interfere in the 2016
presidential election, and that includes investigating the
nature of any links between individuals associated with the
Trump campaign and Russia's efforts.” Statement
Before the House Permanent Select Committee on Intelligence,
available at https://www.fbi.gov/
news/testimony/hpsci-hearing-titled-russian-active-measures-investigation.
He added, “As with any counterintelligence
investigation, this will also include an assessment of
whether any crimes were committed.” Id. Two
months later, the President fired Comey, citing, among other
reasons, frustration with the ongoing probe into Russian
interference, which he saw as “an excuse by the
Democrats for having lost [the] election.” CNN
Statement of Undisputed Material Facts, ¶ 29.

On May
16, 2017 - one week after Comey left office - news of his
Memos first broke. The New York Times published a
report about an Oval Office meeting between President Trump
and the then-Director, said to have taken place on February
14 of that year. During this one-on- one conversation, the
President allegedly referenced a potential investigation into
his former National Security Advisor Michael Flynn's
contacts with Russia, telling Comey, “I hope you can
see your way clear to letting this go, to letting Flynn
go.” Michael S. Schmidt, Comey Memo Says Trump
Asked Him to End Flynn Investigation, N.Y. Times (May
16, 2017), available at
https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html.
The Times report was based on “a memo Mr.
Comey wrote shortly after the meeting.” Id.
According to the newspaper, “Mr. Comey shared the
existence of the memo with senior F.B.I. officials and close
associates, ” one of whom “read parts of [the
Memo] to a Times reporter.” Id.

Spurred
by this report, the Senate Select Committee on Intelligence
held a hearing, during which Comey corroborated the
Times account. On June 8, he testified under oath
for nearly three hours, fielding myriad questions about his
Memos. See Hearing with Former FBI Director James
Comey, 115th Cong. (June 8, 2017) (Statement of James B.
Comey), available at
https://www.intelligence.senate.gov/sites/default/files/documents/os-jcomey-060817.pdf.
He there explained that after his first conversation with
then-President-Elect Trump, he “felt compelled to
document” their encounter in a memo, which he
“began to type . . . on a laptop in an FBI vehicle
outside Trump Tower the moment [he] walked out of the
meeting.” Id. at 2.

According
to Comey, “Creating written records immediately after
one-on-one conversations with Mr. Trump was [his] practice
from that point forward.” Id. He thought he
had done so “after each of [his] nine
conversations” with the President, or at least
“for nearly all of them, especially the ones that were
substantive.” Transcript of Comey Hearing,
available at
https://www.intelligence.senate.gov/hearings/open-hearing-former-fbi-director-james-comey#.
Comey said he had memorialized these conversations out of
concern that President Trump “might lie about the
nature of our meeting.” Id. In such a
scenario, he wanted a contemporaneous account “to
defend the FBI and our integrity as an institution and the
independence of our investigative function.”
Id.

B.
Procedural Background

The
same day that news spread of Comey's memoranda, Plaintiff
Cable News Network submitted a FOIA request for copies of
“all records of notes taken by or communications sent
from FBI Director James Comey regarding or documenting
interactions (including interviews and other conversations)
with President Donald Trump.” Def. MSJ (First
Declaration of David M. Hardy), ¶ 6; see also
id., Exh. CNN-B (CNN FOIA Request). CNN was not the only
one interested in the Comey Memos. Plaintiffs Daily Caller
News Foundation, non-profit organizations Judicial Watch and
Freedom Watch, and USA Today (the business name of Gannett
Satellite Information Network), along with its reporter Brad
Heath, the James Madison Project, and journalists Garrett
Graff and Lachlan Markay, all submitted FOIA requests to the
same end. See First Hardy Decl., ¶¶ 14,
21, 30, 37, 44. Some Plaintiffs (including the USA Today
group and Freedom Watch) sought additional related records,
which are outside the scope of the instant summary-judgment
motions. See, e.g., id., ¶ 44.

The
Department of Justice responded to each request by letter
dated June 16, 2017, invoking Exemption 7(A) to withhold all
documents. To wit, it stated: “The records responsive
to your request are law enforcement records. There is a
pending or prospective law enforcement proceeding relevant to
these responsive records, and the release of the information
could reasonably be expected to interfere with enforcement
proceedings.” Id., Exhs. CNN-F, USA Today-D,
JMP/Graff-D, JMP/Markay-C, JW-D, FW-D. Undeterred, all
Plaintiffs timely brought actions in this Court, suing,
variously, the FBI and DOJ. The Court consolidated their
cases on July 31, 2017. See Minute Order.

Four
months later, the Government moved for partial summary
judgment as to all requests related to the Comey Memos, and
Plaintiffs, in turn, filed cross-motions for the same. To
bolster its case, the Department of Justice also sought leave
to introduce an ex parte and in camera
affidavit from David W. Archey, a Deputy Assistant Director
with the Counterintelligence Division, who currently
supervises all FBI personnel assigned to the investigation
into Russia's interference with the 2016 Presidential
election. See ECF No. 23. After the parties finished
briefing, the Court granted the Government's request and
ordered, at Plaintiffs' behest, that it also produce all
withheld Memos for in camera review. See
Minute Order of Jan. 11, 2018.

The
Court reviewed those submissions and, out of an abundance of
caution, thought it helpful to seek more specifics as to the
Memos' connection with an ongoing investigation. It
therefore asked that an attorney from the Office of Special
Counsel proffer such information. Michael R. Dreeben, who
serves as Counsel to the Special Counsel, did so in a sealed,
on-the-record ex parte session. Finally, in response
to this Court's follow-up questions about that sealed
proffer, the Government submitted the Third Declaration of
David W. Archey in camera and ex parte.
See ECF No. 47. (The agency previously moved to
submit the Second Declaration of David W. Archey regarding
records other than the Memos, see ECF No. 46, and
the Court has not yet ruled on that motion.) Although none of
this material is currently available to Plaintiffs, all forms
part of the record that could be reviewed on appeal or in any
subsequent litigation.

II.
Legal Standard

Summary
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. See Scott v. Harris, 550 U.S. 372,
380 (2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA
cases typically are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d
521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may
accept an “agency's affidavits, without pre-summary
judgment discovery, if the affidavits are made in good faith
and provide reasonably specific detail concerning the methods
used to produce the information sought.” Broaddrick
v. Exec. Office of the President, 139 F.Supp.2d 55, 64
(D.D.C. 2001). “Agency affidavits are accorded a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks and citation omitted). “Summary
judgment may not be appropriate without incamera review, ” however, “when agency
affidavits in support of a claim of exemption are
insufficiently detailed.” Armstrong v. Exec. Office
of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). In
such a circumstance, “district court judges [have]
broad discretion in determining whether in camera
review is appropriate.” Id. at 577-78.

III.
Analysis

The
country (or at least the Beltway) has spent months abuzz
about the Comey Memos and what they might reveal. Despite
rampant media speculation, however, the Memos themselves have
remained out of public view. The Government hopes to keep it
that way, but to withhold release under FOIA, it must satisfy
two elements. First, it must “demonstrate the . . .
adequacy of the search” for relevant documents.
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).
Second, it must show that the withheld material “falls
within one of nine statutory exemptions.” People
for the Ethical Treatment of Animals v. Nat'l Institutes
of Health,745 F.3d 535, 540 (D.C. Cir. 2014).
Plaintiffs attack the Government's efforts at each step.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A.
Adequ ...

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