Protect Democracy Project, Inc. v. National Security Agency ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2021 Decided August 24, 2021
No. 20-5131
PROTECT DEMOCRACY PROJECT, INC.,
APPELLANT
v.
NATIONAL SECURITY AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01000)
Michael P. Abate argued the cause for appellant. With him
on the briefs was Benjamin L. Berwick.
Samantha L. Chaifetz, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
was Mark B. Stern, Attorney.
Before: PILLARD and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The Protect Democracy Project
challenges the National Security Agency’s decision to
2
withhold one record from disclosure under the Freedom of
Information Act. The record at issue is a memorandum the
NSA Deputy Director wrote in 2017, memorializing what was
said on a phone call he participated in between President
Trump and the NSA Director soon after it occurred. According
to an account of the phone call in Special Counsel Robert
Mueller’s report on Russian interference in the 2016 election,
President Trump asked the NSA Director whether he could do
anything to refute news stories connecting Trump to the
Russian government.
The NSA withheld the memo under a FOIA exemption
that incorporates privileges available to the government in civil
litigation, claiming executive privilege for presidential
communications. The district court sustained the privilege
claim. It denied Protect Democracy’s request to examine the
memo for any segregable passages subject to release under
FOIA on the ground that the presidential communications
privilege protected the memo in full. The district court also
held that the government did not waive the privilege when it
published in the Mueller Report a description of the
conversation at issue.
Based on our in camera review, the memo at issue falls
squarely within the scope of the presidential communications
privilege. And, as the district court appreciated, our precedent
applies the privilege to the memo in its entirety. Protect
Democracy cannot shrink the scope of the privilege by
invoking FOIA’s segregability requirement, even if its FOIA
request raises credible allegations of governmental misconduct
(a question we need not decide). In addition, the government’s
description of the phone call in the Mueller Report did not
waive the privilege, as not all the information in the memo
specifically matches the information released in the report. We
thus affirm the district court’s decision in full.
3
BACKGROUND
On March 20, 2017, FBI Director James Comey testified
before the House Permanent Select Committee on Intelligence
that the FBI was conducting a counterintelligence investigation
into interference by the Russian government in the 2016
presidential election. That was the first time the Department of
Justice or the FBI publicly disclosed the existence of their
investigation. Director Comey testified at the hearing that, as
part of its investigation, the FBI was examining any potential
links between President Donald Trump’s presidential
campaign and the Russian government. Two months later, on
May 9, Trump fired Comey. Eight days after Comey’s firing,
Deputy Attorney General Rod Rosenstein appointed former
FBI Director Robert Mueller as Special Counsel to oversee the
existing FBI investigation.
Soon after Mueller’s appointment, the Washington Post
reported that Trump had called both the Director of National
Intelligence and the Director of the NSA days after Comey’s
testimony in March to ask that they rebut allegations of
coordination between his presidential campaign and the
Russian government. The Post stated that Trump’s
conversation with Admiral Michael Rogers, the NSA Director
at that time, “was documented contemporaneously in an
internal memo written by a senior NSA official.” Adam Entous
& Ellen Nakashima, Trump Asked Intelligence Chiefs to Push
Back Against FBI Collusion Probe After Comey Revealed Its
Existence, Wash. Post (May 22, 2017), http://wapo.st/2ruKr9n.
Two months later, the media reported that Mueller was
investigating whether Trump had obstructed justice in his
handling of the FBI investigation, including in his firing of
Comey. The Wall Street Journal stated that Mueller planned to
interview the two intelligence chiefs, as well as Richard
4
Ledgett, who had recently retired as deputy director of the
NSA. The Journal identified Ledgett as the senior NSA official
who had documented Trump’s call with NSA Director Rogers.
See Del Quentin Wilber, Shane Harris & Paul Sonne, Mueller
Probe Examining Whether Donald Trump Obstructed Justice,
Wall St. J. (June 15, 2017), https://www.wsj.com/articles/
mueller-probe-examining-whether-donald-trump-obstructed-
justice-1497490897.
In April 2019, the Department of Justice released a
partially redacted version of Special Counsel Mueller’s report
on the results of his investigation. The report confirmed that, in
the days after Comey’s testimony, Trump asked intelligence
community leaders to deny that he had any connection to
Russia. The report described Trump’s call with Rogers as
follows:
On March 26, 2017 . . . the President called NSA
Director Admiral Michael Rogers. The President
expressed frustration with the Russia investigation,
saying that it made relations with the Russians
difficult. The President told Rogers “the thing with
the Russians [wa]s messing up” his ability to get
things done with Russia. The President also said that
the news stories linking him with Russia were not
true and asked Rogers if he could do anything to
refute the stories. Deputy Director of the NSA
Richard Ledgett, who was present for the call, said it
was the most unusual thing he had experienced in 40
years of government service. After the call
concluded, Ledgett prepared a memorandum that he
and Rogers both signed documenting the content of
the conversation and the President’s request, and
they placed the memorandum in a safe. But Rogers
did not perceive the President’s request to be an
5
order, and the President did not ask Rogers to push
back on the Russia investigation itself. Rogers later
testified in a congressional hearing that as NSA
Director he had “never been directed to do anything
[he] believe[d] to be illegal, immoral, unethical or
inappropriate” and did “not recall ever feeling
pressured to do so.”
Special Counsel Robert S. Mueller, III, Report on the
Investigation into Russian Interference in the 2016 Election,
Volume II (hereinafter Mueller Report Vol. II) at 56-57 (March
2019) (J.A. 46-47), https://www.justice.gov/archives/sco/
file/1373816/download (citations omitted). All footnotes
attached to that paragraph reference interviews with Rogers
and Ledgett, and the report contains no indication that its
authors saw or relied on Ledgett’s memo.
This case evolved alongside the developments discussed
above. In April 2017, before news outlets reported on any call
between Trump and Rogers, Protect Democracy sent a FOIA
request to the NSA seeking several categories of documents
relating to Russian interference in the 2016 election and links
between Trump associates and Russian agents. After waiting
a month for a response from the NSA, Protect Democracy sued.
In early 2018, Protect Democracy narrowed its FOIA request
to any memoranda written by senior NSA officials
documenting a conversation between the President or other
White House personnel and senior NSA officials “in which the
White House asked the NSA to publicly dispute any suggestion
of collusion between Russia and the Trump campaign.” J.A.
68. The NSA issued a Glomar response, declining to confirm
or deny the existence of a responsive record. See Leopold v.
CIA, 987 F.3d 163, 167 (D.C. Cir. 2021). But it withdrew that
response after the Mueller Report was released, as the report
confirmed the existence of at least one responsive record:
6
Ledgett’s memo on the Trump-Rogers call. The NSA then
advised the district court that it had identified that one
responsive record but withheld it pursuant to four statutory
exemptions from FOIA’s disclosure requirements: Exemption
1 (classified material), Exemption 3 (material exempt under
other statutes), Exemption 5 (privileged material), and
Exemption 6 (material invading personal privacy).
In March 2020, the district court reviewed the record at
issue in camera. See Protect Democracy Project v. NSA, 453
F. Supp. 3d 339, 344 (D.D.C. 2020). It then granted summary
judgment to the NSA. Id. at 354. The court held that Ledgett’s
memo was protected by the presidential communications
privilege—a component of executive privilege—and thus
permissibly withheld under FOIA Exemption 5, which
incorporates privileges available to the government in civil
litigation. Id. at 346-48. The court did not reach the other
claims of exemption. Id. at 346 n.4. It rejected Protect
Democracy’s request that it assess whether portions of the
memo were segregable under FOIA, citing our precedent that
presidential communications privilege applies to documents in
their entirety. Id. at 348-49 (citing Judicial Watch, Inc. v. Dep’t
of Def., 913 F.3d 1106, 1111 (D.C. Cir. 2019); Loving v. Dep’t
of Def., 550 F.3d 32, 37-38 (D.C. Cir. 2008); In re Sealed Case,
121 F.3d 729, 745 (D.C. Cir. 1997)). It also declined to
recognize an exception to the privilege’s protection based on
Protect Democracy’s allegations of government wrongdoing.
Id. at 349-51. And it held that the Mueller Report’s description
of the President’s phone call did not constitute an official
acknowledgment of information in Ledgett’s memo and thus a
waiver that would have allowed Protect Democracy to compel
disclosure despite the NSA’s valid exemption claim. Id. at
352-54.
7
Protect Democracy noticed its appeal and filed a petition
for initial hearing en banc. It argued that initial en banc
consideration was warranted because “[t]he facts of this case
present a compelling reason for reconsidering [this court’s]
precedents and allowing segregability in FOIA cases” of
nonprivileged information in documents that include
presidential communications. Initial En Banc Consideration
Pet. 4. The court denied that petition. See Order, Protect
Democracy Project, Inc. v. NSA, No. 20-5131 (D.C. Cir. July
7, 2020). Briefing and argument before this panel followed.
ANALYSIS
On appeal, Protect Democracy argues that a record exempt
from disclosure under FOIA on the basis of the presidential
communications privilege, but that arguably contains
nonprivileged information, should be reviewed to determine
whether the nonprivileged information can be segregated and
released. Alternatively, it asserts that segregability should be
allowed where those portions of a record not protected by the
privilege are credibly alleged to concern presidential
misconduct. Protect Democracy also argues the Mueller
Report constituted an official acknowledgment of information
in Ledgett’s memo, thereby waiving the government’s right to
assert the presidential communications privilege over that
information. We review the district court’s grant of summary
judgment in FOIA cases de novo. See Judicial Watch, Inc. v.
Dep’t of Def. (Judicial Watch III), 913 F.3d 1106, 1110 (D.C.
Cir. 2019). We first address Protect Democracy’s claims about
the presidential communications privilege and its interaction
with FOIA’s segregability requirement, including where
presidential misconduct is claimed. We then turn to the issue
of waiver.
8
A. Segregability
FOIA requires federal agencies to disclose to the public
records requested under the Act unless the records fall into one
of nine statutory exemptions. See 5 U.S.C. § 552(b). When a
FOIA exemption covers a requested agency record, FOIA’s
terms require that “[a]ny reasonably segregable portion of
[that] record . . . be provided to any person requesting such
record after deletion of the portions which are exempt.” Id.Exemption 5, the only exemption at issue in this appeal,
allows the government to withhold “inter-agency or intra-
agency memorandums or letters that would not be available by
law to a party other than an agency in litigation with the
agency.” Id. § 552(b)(5). “As the text indicates—albeit in a
less-than-straightforward way—this exemption incorporates
the privileges available to Government agencies in civil
litigation.” Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S.
Ct. 777, 785 (2021). In addition to the attorney-client privilege
and the attorney work-product doctrine, the incorporated
privileges include those recognized as components of
executive privilege, including the deliberative process
privilege and presidential communications privilege. See
Judicial Watch III, 913 F.3d at 1109.
The government here relies on the presidential
communications privilege, which the Supreme Court first
affirmatively endorsed half a century ago in United States v.
Nixon (Nixon I), 418 U.S. 683 (1974). The Court explained
that “[a] President and those who assist him must be free to
explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be
unwilling to express except privately.” Id. at 708. Such
considerations justified what it called “a presumptive privilege
for Presidential communications.” Id.9
The Court later described the presidential communications
privilege as “limited to communications ‘in performance of (a
President’s) responsibilities,’ ‘of his office,’ and made ‘in the
process of shaping policies and making decisions.’” Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977) (quoting Nixon
I, 418 U.S. at 711, 713, 708). Or, as we have summarized, the
privilege applies to “documents or other materials that reflect
presidential decisionmaking and deliberations and that the
President believes should remain confidential.” In re Sealed
Case, 121 F.3d 729, 744 (D.C. Cir. 1997). “At core, the
presidential communications privilege is rooted in the
President’s need for confidentiality in the communications of
his office, in order to effectively and faithfully carry out his
Article II duties and to protect the effectiveness of the
executive decision-making process.” Judicial Watch, Inc. v.
Dep’t of Justice (Judicial Watch I), 365 F.3d 1108, 1115 (D.C.
Cir. 2004) (citations and internal quotation marks omitted).
The nature and scope of the presidential communications
privilege is clearer when contrasted to the deliberative process
privilege. The deliberative process privilege is primarily a
common law privilege, and it covers records documenting the
decisionmaking of executive officials generally. In re Sealed,
121 F.3d at 745. The presidential communications privilege is
a constitutionally based privilege, and it applies to records of
nonpublic presidential communications specifically. Id.
“Consequently,” we have held, “congressional or judicial
negation of the presidential communications privilege is
subject to greater scrutiny than denial of the deliberative
[process] privilege.” Id. And, importantly here, whereas the
deliberative process privilege covers only pre-decisional and
deliberative material, the presidential privilege covers
documents “in their entirety,” including post-decisional and
factual material within a record. Id. at 745-46; accord Loving
v. Dep’t of Def., 550 F.3d 32, 37-38 (D.C. Cir. 2008). In this
10
way, the presidential communications privilege is broader than
its deliberative process cognate.
Like the deliberative process privilege, the presidential
communications privilege is qualified, not absolute, so when
invoked in a civil or criminal case, for example, it may be
overcome by an adequate showing of need. See In re Sealed,
121 F.3d at 753-57 (grand jury subpoena); Dellums v. Powell,
561 F.2d 242, 247-50 (D.C. Cir. 1977) (civil litigation). But
we have held that, because “the particular purpose for which a
FOIA plaintiff seeks information is not relevant in determining
whether FOIA requires disclosure,” a need showing does not
figure into privilege determinations under FOIA in the way it
does in non-FOIA litigation. Judicial Watch III, 913 F.3d at
1112 (quoting Loving, 550 F.3d at 40). In the FOIA context,
once even a qualified privilege like the presidential
communications privilege applies to a record claimed exempt
from disclosure under Exemption 5, a need showing does not
overcome it. Id.
1.
Our own in camera review of Ledgett’s memo confirms it
was properly withheld pursuant to FOIA Exemption 5. The
Memo memorializes a phone call that was initiated by the
President in which he discussed and sought information
relevant to his deliberation over issues connected to foreign
relations and intelligence-gathering. Such a document falls
squarely within the scope of the presidential communications
privilege for two main reasons.
First, the memo “reflect[s] presidential decisionmaking
and deliberations.” In re Sealed, 121 F.3d at 744. 1 Its
1
“[T]he issue of whether a President must personally invoke the
[presidential communications] privilege remains an open question,
11
disclosure “would reveal the President’s deliberations.”
Judicial Watch III, 913 F.3d at 1113. Ledgett’s memo
documents a conversation in which President Trump was
himself a direct participant, much like the tape recordings at
issue in the Nixon cases. See In re Sealed, 121 F.3d at 747.
Records of what was said by or directly to the President lie at
the heart of the presidential communications privilege. See id.
at 752 (explaining that the privilege “is bottomed on a
recognition of the unique role of the President”); cf. Judicial
Watch I, 365 F.3d at 1112 (declining to extend the privilege to
“internal agency documents that are ‘not solicited and
received’ by the President or his Office”); Loving, 550 F.3d at
39-40 (“Nothing in [Judicial Watch I] disturbs the established
principle that communications ‘directly involving’ the
President . . . are entitled to the privilege, regardless of whether
the President solicited them.”). 2
Second, the conversation memorialized in Ledgett’s
memo concerns “the President’s Article II powers and
and the court need not decide it now,” as neither party raised it below
or on appeal. Judicial Watch I, 365 F.3d at 1114; see In re Sealed,
121 F.3d at 744-45 n.16 (describing history of Presidents’ personal
assertions of the privilege, but noting that we did not need to decide
whether the privilege must be invoked by the President personally in
a case in which he had done so).
2
Protect Democracy emphasizes our statement that the privilege
“should never serve as a means of shielding information regarding
governmental operations that do not call ultimately for direct
decisionmaking by the President,” In re Sealed, 121 F.3d at 752,
arguing that the privilege does not cover the phone call because the
conversation required no “direct decisionmaking” by the President.
But that portion of In re Sealed Case concerned communications that
did not directly involve the President. Elsewhere in that case, we
explained that the privilege covers “materials connected to
presidential decisionmaking.” Id. at 745 (emphasis added).
12
responsibilities,” which form “the constitutional basis of the
presidential communications privilege.” In re Sealed, 121 F.3d
at 748. As described in an NSA declaration, “Admiral Rogers
provided the President with information and analysis based on
specific NSA intelligence . . . in the context of a conversation
related to national security and foreign affairs.” J.A. 54. Even
the Mueller Report, which investigated the call in relation to
concerns about potential obstruction of justice, establishes that
Trump and Rogers discussed matters of foreign relations. See
Mueller Report Vol. II at 56 (Trump told Rogers the FBI
investigation into alleged links with Russia “made relations
with the Russians difficult.”); id. at 60-61 (characterizing the
evidence regarding Trump’s responses to Comey’s testimony
as, in part, “indicat[ing] that the President was concerned about
the impact of the Russia investigation on his ability to
govern”). Those issues implicate the President’s
responsibilities and his legitimate interest in confidentiality.
See Nixon I, 418 U.S. at 710-11; Judicial Watch III, 913 F.3d
at 1111-12 (applying the privilege in the context of “a highly
sensitive subject with serious direct and collateral
consequences for foreign relations”).
Indeed, Protect Democracy does not dispute the district
court’s holding that at least part of Ledgett’s memo is protected
by the presidential communications privilege. It instead argues
against applying the privilege to any portion of the memo that
concerns Trump’s question, as described in the Mueller Report,
whether Rogers “could do anything to refute the stories.” J.A.
46. According to Protect Democracy, Trump’s request falls
outside the President’s Article II powers so is unrelated to
presidential decisionmaking. Because, in its view, such
information falls outside the scope of the privilege, Protect
Democracy contends that we should require examination of
Ledgett’s memo to determine which, if any, parts are
13
“reasonably segregable” and subject to disclosure under FOIA.
5 U.S.C. § 552(b).
The problem for Protect Democracy is that, under existing
precedent, the presidential communications privilege “applies
to documents in their entirety.” In re Sealed, 121 F.3d at 745.
As a result of that principle, we have previously indicated that
a record protected by the privilege is not segregable in response
to a FOIA request. We described the scope of the presidential
communications privilege in the context of FOIA Exemption 5
when comparing it to its counterpart, the deliberative process
privilege. “The [presidential communications] privilege
covers documents reflecting ‘presidential decisionmaking and
deliberations,’ regardless of whether the documents are
predecisional or not, and it covers the documents in their
entirety.” Loving, 550 F.3d at 37-38 (quoting In re Sealed, 121
F.3d at 744-45). “Unlike the presidential communications
privilege,” we explained, “the deliberative process privilege
does not protect documents in their entirety; if the government
can segregate and disclose non-privileged factual information
within a document, it must.” Id. at 38. We more recently held
that, because “[o]nce the [presidential communications]
privilege applies, the entirety of the document is protected”
under FOIA Exemption 5, Judicial Watch III, 913 F.3d at 1111,
“the question of segregability of non-exempt material is . . . not
presented,” id. at 1113. Even accepting, then, Protect
Democracy’s claim that portions of Ledgett’s memo would not
be privileged if they existed in isolation, they are nonetheless
not segregable under FOIA as part of the memo—a document
made to memorialize only one conversation and that, based on
our in camera review, otherwise falls squarely within the scope
of the privilege.
Protect Democracy challenges our precedent on this point
as contrary to FOIA’s plain text, which refers to segregation of
14
nonprivileged parts of government records. But we have
already rejected that line of argument in an Exemption 5 case,
holding that “there are no segregable parts” where a document
is protected in its entirety by the relevant privilege—there, the
attorney work product doctrine, which covers even factual
work product. Judicial Watch, Inc. v. Dep’t of Justice (Judicial
Watch II), 432 F.3d 366, 370-71 (D.C. Cir. 2005). FOIA’s
segregability requirement presumes that some part of a
document is not exempt; it requires disclosure of “any
reasonably segregable portions . . . after deletion of the portions
which are exempt.” 5 U.S.C. § 552(b). But where an entire
document is protected by a privilege, as is the case here, “there
simply are no reasonably segregable portions . . . to release
after deletion of the portions which are exempt.” Judicial
Watch II, 432 F.3d at 370 (formatting modified).
Seeking a way around that complete coverage, Protect
Democracy urges us to overrule the precedent that applies the
presidential communications privilege to an entire document so
as to render segregability analysis inapplicable. Appellant Br.
25-26. Protect Democracy echoes the district court’s concern
that an entire-document rule might allow the government to
incorporate materials covered by the privilege into a document
that would not otherwise be, thus improperly shielding the
latter from FOIA disclosure. See Protect Democracy, 453 F.
Supp. 3d at 350. But even as it describes this case as “a
uniquely good vehicle” for overruling precedent, Appellant Br.
30, it provides no reason to think that any such tail-wagging-
dog abuse of the privilege occurred here. Our review of
Ledgett’s short memo confirms that it memorializes a single,
limited conversation. In any event, our circuit precedent binds
us as a panel, see LaShawn A. v. Barry, 87 F.3d 1389, 1395
(D.C. Cir. 1996), so we take this argument as Protect
Democracy’s preservation of the point for potential en banc
review.
15
2.
Protect Democracy alternatively argues that we should
require segregation and disclosure under FOIA where a
plaintiff credibly alleges that a record of a privileged
presidential communication contains information manifesting
governmental misconduct. Even if our precedent does not
generally require segregation of those portions of records not
involving protected presidential communications, says Protect
Democracy, this panel should “carve out a narrow exception”
to the non-segregability rule for cases involving allegations of
misconduct on the part of high-ranking executive branch
officials. Reply Br. 13 n.5. Protect Democracy points out that
none of our decisions on segregability and the presidential
communications privilege involved claims of misconduct. By
contrast, it asserts, “[t]he focus and purpose of the [Ledgett]
Memorandum, and the occasion for its authorship, was to
document the President’s inappropriate conduct.” Appellant
Br. 35. And evidence of that asserted misconduct “comes from
a uniquely credible source,” namely Special Counsel Mueller.
Id. at 34.
There is no precedent binding on this court that recognizes
the misconduct exception Protect Democracy proposes.
Protect Democracy argues that “it is quite common in a FOIA
case for a court to disregard a claim of exemption altogether
where a credible allegation of government misconduct is
made.” Appellant Br. 31. But the authority it cites concerns a
different FOIA exemption, covering information compiled for
law enforcement purposes. Id. (citing Nat’l Archives & Recs.
Admin. v. Favish, 541 U.S. 157, 174 (2004); Roth v. Dep’t of
Justice, 642 F.3d 1161, 1181 (D.C. Cir. 2011)). That
exemption excludes such information from FOIA’s ambit
“only to the extent that,” as relevant here, it “could reasonably
be expected to constitute an unwarranted invasion of personal
16
privacy.” 5 U.S.C. § 552 (b)(7). To determine whether an
invasion of privacy is “unwarranted,” courts balance the
privacy interest against the public interest in disclosure,
including any potential interest in airing governmental
misconduct. See Favish, 541 U.S. at 174; Roth, 642 F.3d at
1181.
No such balancing or consideration of public interest is
called for under Exemption 5. It instead exempts from
coverage any “inter-agency or intra-agency memorandums or
letters that would not be available by law to a party other than
an agency in litigation with the agency,” 5 U.S.C. § 552 (b)(5),
meaning documents “normally privileged in the civil discovery
context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975); see also id. at 149 n.16. And as we have explained,
insofar as their incorporation into FOIA by Exemption 5 is
concerned, privileges otherwise potentially overcome by a
showing of need are not susceptible of such balancing. See
Loving, 550 F.3d at 41 (presidential communications privilege
precedent “forecloses” the claim that the “public interest in [a]
document overcomes the privilege”).
Protect Democracy insists that, in asking us to craft a
special segregability rule in cases involving credible
allegations of misconduct, it does not seek to overcome the
privilege—it seeks access only to those parts of a record that
are not privileged. But insofar as the memo is protected—
meaning privileged—in its entirety, any effort to render the
document segregable necessarily amounts to an effort to
overcome the privilege. The cases that Protect Democracy
cites in arguing misconduct can be relevant to the threshold
application of the presidential communications privilege in fact
consider misconduct only at the next step of privilege
analysis—that is, in determining whether the privilege has been
overcome. See In re Sealed, 121 F.3d at 746; Dellums, 561
17
F.2d at 247. Because a FOIA request cannot overcome the
privilege, such cases are of no help to Protect Democracy here.
Even assuming that Protect Democracy could overcome
the privilege, its allegations of misconduct would not help it do
so. Protect Democracy cites district court cases recognizing a
misconduct exception to the deliberative process privilege.
See, e.g., Nat’l Whistleblower Ctr. v. Dep’t of Health & Hum.
Servs., 903 F. Supp. 2d 59, 66-67 (D.D.C. 2012). The cited
basis for the exception is In re Sealed Case, which noted that
“where there is reason to believe the documents sought may
shed light on government misconduct, ‘the [deliberative
process privilege] is routinely denied[.]’” 121 F.3d at 738
(quoting Texaco Puerto Rico, Inc. v. Dep’t of Consumer
Affairs, 60 F.3d 867, 885 (1st Cir. 1995)). 3 But In re Sealed
Case expressly rejected any similar such approach to the
presidential communications privilege. See id. at 746. Instead,
“a party seeking to overcome [that] privilege seemingly must
always provide a focused demonstration of need, even when
there are allegations of misconduct by high-level officials.” Id.
Protect Democracy makes no such showing here. The
closest it gets is in citing “the public’s compelling need to
understand the myriad ways their President attempted to
obstruct justice.” Appellant Br. 32. But the showing that is
required to overcome the presidential communications
privilege does not turn “on the nature of the presidential
3
Other district court decisions have concluded that that language
from In re Sealed Case is inapplicable in the FOIA context, see Ctr.
for Pub. Integrity v. Dep’t of Def., 486 F. Supp. 3d 317, 331-32
(D.D.C. 2020); Judicial Watch, Inc. v. Dep’t of State, 241 F. Supp.
3d 174, 182-83 (D.D.C. 2017), in light of our statement in In re
Sealed Case that FOIA requests cannot overcome the deliberative
process privilege, see 121 F.3d at 737 n.5. We need not resolve that
issue here.
18
conduct that the [requested] material might reveal.” Senate
Select Comm. on Presidential Campaign Activities v. Nixon,
498 F.2d 725, 731 (D.C. Cir. 1974). “In holding that the
Watergate Special Prosecutor had provided a sufficient
showing of evidentiary need to obtain tapes of President
Nixon’s conversations,” for instance, “the Supreme Court
made no mention of the fact that the tapes were sought for use
in a trial of former presidential assistants charged with
engaging in a criminal conspiracy while in office.” In re
Sealed, 121 F.3d at 746. What matters instead is “the function
for which [the] evidence is sought.” Id. It is unclear how
Protect Democracy—which is neither a litigant in need of
Ledgett’s memo as evidence nor a governmental entity
investigating government misconduct, but rather a private
FOIA plaintiff—could make any showing of such need.
In short, Ledgett’s memo is covered by the presidential
communications privilege in its entirety, and Protect
Democracy’s various efforts to get around that privilege’s
protections through FOIA’s segregability requirement fail. We
thus affirm the district court’s decision that the government
properly withheld the memo pursuant to FOIA Exemption 5.
B. Waiver
Protect Democracy also contends that, even if Ledgett’s
memo is privileged, the government waived the privilege as to
matters disclosed in the Mueller Report. It makes its claim of
waiver under our “official acknowledgment” doctrine. We
have held that, “[i]f the government has officially
acknowledged information, a FOIA plaintiff may compel
disclosure of that information even over an agency’s otherwise
valid exemption claim.” ACLU v. Dep’t of Def., 628 F.3d 612,
620 (D.C. Cir. 2011). But not just any acknowledgement will
do:
19
For information to qualify as “officially
acknowledged,” it must satisfy three criteria: (1) the
information requested must be as specific as the
information previously released; (2) the information
requested must match the information previously
disclosed; and (3) the information requested must
already have been made public through an official
and documented disclosure.
Id. at 620-21. “Prior disclosure of similar information does not
suffice; instead, the specific information sought by the plaintiff
must already be in the public domain by official disclosure.”
Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007).
Because application of the “official acknowledgment”
doctrine to a record withheld pursuant to Exemption 5 would
result in release of privileged material, the standard for waiver
of executive privilege is also relevant to our analysis. Cf. Nat’l
Sec. Counselors v. CIA, 969 F.3d 406, 410-11 (D.C. Cir. 2020)
(considering waiver of attorney-client privilege as to
documents withheld under Exemption 5 separately from the
“official acknowledgment” doctrine).
“Since executive privilege exists to aid the governmental
decisionmaking process, a waiver should not be lightly
inferred.” In re Sealed, 121 F.3d at 741 (citation omitted). One
way that executive privilege doctrine imposes a high bar for
waiver is in limiting waiver by disclosure. In the attorney-
client privilege context, “voluntary disclosure of privileged
material . . . to unnecessary third parties . . . ‘waives the
privilege, not only as to the specific communication disclosed
but often as to all other communications relating to the same
subject matter.’” Id. (quoting In re Sealed Case, 676 F.2d 793,
809 (D.C. Cir. 1982)). “But this all-or-nothing approach has
not been adopted with regard to executive privileges
20
generally . . . . Instead, courts have said that release of a
document only waives these privileges for the document or
information specifically released, and not for related
materials.” Id. In In re Sealed Case, for instance, we held that
deliberate public release of a final White House Counsel report
prepared for the President regarding misconduct by the
Secretary of Agriculture did “not waive the privilege in regard
to the documents the White House generated in producing the
ultimate version [of that final report].” Id.Analyzed under the terms of either the FOIA official
acknowledgment doctrine or executive privilege waiver
doctrine generally, the government’s publication of the Mueller
Report did not waive privilege as to Ledgett’s memo. There
seems to be no dispute that the Mueller Report constitutes an
official disclosure, so the question under both doctrines is
whether the information disclosed is a close enough match to
the information withheld. See ACLU, 628 F.3d at 620; In re
Sealed, 121 F.3d at 741. Our in camera review of Ledgett’s
memo confirms that it is not. “[T]here are substantive
differences between the disclosed [information] and the
information that has been withheld.” ACLU, 628 F.3d at 620.
Protect Democracy’s claim that the report “directly
describes the contents” of the memo is inaccurate. Reply Br.
18. The report confirms the existence of that memo and
describes the contents of the same phone call memorialized by
Ledgett. But the report and the memo are not a complete
match; the memo contains details and statements that were not
disclosed in the report. Appellant suggests that “the Mueller
Report was drawn from [Ledgett’s memo] directly and from
the testimony of the men responsible for its creation,” Reply
Br. 18, but the report itself provides support for only the latter
half of that proposition: It states that it was based on interviews
21
with NSA Director Rogers and Deputy Director Ledgett, and
makes no reference to the memo itself.
To be sure, the Mueller Report contains much information
similar to information found in Ledgett’s memo. Protect
Democracy accordingly argues that the government must
disclose any parts that “match the facts revealed” in the report.
Appellant Br. 37. This request, of course, sounds familiar: It
would in effect require segregability through waiver analysis—
a result in tension with our holding that Ledgett’s memo is
either privileged in full or not at all. Even assuming that such
a result were permissible, the matching information in the
report is not “as specific as the information” in the memo.
ACLU, 628 F.3d at 620. Release of the report thus did not
effect a waiver as to any subset of information contained in
Ledgett’s memo.
* * *
For the foregoing reasons, we affirm the district court’s
decision granting the NSA’s motion for summary judgment
and denying Protect Democracy’s cross-motion for summary
judgment.
So ordered.