Judge Rules Trump Twitter Posts Are Not Declassification Orders in Case Seeking Carter Page FISA Records

May 5, 2020 Updated: May 5, 2020

A federal judge has sided with the Justice Department (DOJ) in a lawsuit aimed at further declassifying information related to the Foreign Intelligence Surveillance Act surveillance of Trump campaign associate Carter Page.

The case stems from a Freedom of Information Act (FOIA) lawsuit filed in 2017 by the James Madison Project and investigative journalist Brad Heath. The lawsuit sought FISA applications to and orders made by the Foreign Intelligence Surveillance Court concerning President Donald Trump, Trump organization, his campaign, and people associated with the president. In 2018, the DOJ released 412 pages of heavily redacted documents related to Page (pdf).

The plaintiffs then requested the court for further disclosures of the redacted documents, asking for 21 pages to be made unredacted and challenging the redactions and withholdings of the remaining pages.

In March, Judge Amit Mehta of the U.S. District Court for the District of Columbia ruled against the plaintiffs saying that a press release by the president and a number of his Twitter posts did not constitute a declassification order in relation to 21 of the pages.

Trump had previously promised to declassify FISA action and in September 2018 he directed several agencies to immediately declassify “pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page,” and “all FBI reports of interviews prepared in connection with all Carter Page FISA applications.”

The plaintiffs then contended that the judge did not address their complaints about the remaining 391 pages, and requested the judge to rule on the “the appropriateness of the redactions and withholdings” in those pages.

The plaintiffs argued that Trump’s Twitter posts “had called into question the good faith bases of the Government’s redactions and/or withholdings” and should reject DOJ’s withholdings from the remaining pages.

The posts in question relate to the president’s comments regarding Page’s FISA documents. In the first post, Trump wrote: “Congratulations to @JudicialWatch and @TomFitton on being successful in getting the Carter Page FISA documents. As usual they are ridiculously heavily redacted but confirm with little doubt that the Department of ‘Justice’ and FBI misled the courts. Witch Hunt Rigged, a Scam!”

In the second Twitter post, the president wrote: “It was classified to cover up misconduct by the FBI and the Justice Department in misleading the Court by using this Dossier in a dishonest way to gain a warrant to target the Trump Team. This is a Clinton Campaign document. It was a fraud and a hoax designed to target Trump….”

The DOJ had previously argued in March that those two posts “are insufficient to overcome the presumption.”

“In their motion for summary judgment, Plaintiffs relied on two tweets that they claim reflect the President’s criticism of the redactions, but these vague and nonspecific tweets, based on no personal knowledge and not commenting on the precise issues presented to the Court, are insufficient to overcome the presumption,” the department lawyers wrote.

On Monday, Mehta agreed (pdf) with the DOJ, saying that Trump’s posts “amount to little more than ‘[a] mere assertion of bad faith [that] is not sufficient to overcome a motion for summary judgment.'”

“Although Plaintiffs tout that the tweets ‘come from the highest governmental authority … neither tweet reveals any personal knowledge on the part of the President with respect to the actual withholdings and the exemptions invoked,” he added.

Mehta added that although the president asserted that the documents are “ridiculously heavily redacted,” that assertion “does not undermine the validity” of the DOJ’s invocation of specific FOIA exemptions.

“[H]is insistence that the records were ‘classified to cover up government misconduct’ is unsupported and, without more, cannot overcome the national security justifications put forward in the detailed affidavits submitted by Defendant,” Mehta wrote.

The president appeared to back away from his September 2018 promise to declassify the documents set out in the White House press release, after receiving criticism in response to the announcement.

“I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask not to release,” Trump wrote while adding that the DOJ inspector general had been asked to review those documents on an expedited basis.

“I believe he will move quickly on this (and hopefully other things which he is looking at). In the end I can always declassify if it proves necessary,” he added.

DOJ’s Inspector General Michael Horowitz released a report in December last year on its investigation into alleged FISA abuses in the surveillance of Page. The report found “at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures.”

A follow-up review (pdf), released in a report earlier this year, determined that FBI agents broke the bureau’s policy by failing to follow the “Woods Procedure,” which requires agents to compile supporting documentation for each fact in a FISA application. The Woods Procedures were implemented in 2001 in an effort to “minimize factual inaccuracies in FISA applications” as well as to ensure that the statements are “scrupulously accurate.”

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