A federal appeals court ruled on Tuesday that the National Security Agency does not have to release a memo from a 2017 phone call in which then-President Donald Trump asked the agency’s director if the director could help refute news stories linking Trump to Russia because there is no recognized and binding “misconduct exception.”
The letter was protected from disclosure under the Freedom of Information Act (FOIA) on the basis of the presidential communications privilege, according to a three-judge panel of the United States Court of Appeals for the D.C. Circuit in a 21-page opinion.
This privilege exists to allow presidents and their advisors to openly explore different options and express ideas in policy-making processes that they may otherwise only do in secret.
U.S. Circuit Judge Cornelia Pillard, an Obama appointee, stated for the court;
“Our own in camera assessment of [the memo] shows it was appropriately withheld pursuant to FOIA Exemption 5.” “The Memo commemorates a phone call initiated by the President during which he discussed and sought information pertinent to his deliberations on international relations and intelligence collecting concerns. A document like this falls firmly under the presidential communications privilege.”
Protect Democracy, a government watchdog group, made FOIA requests to the Justice Department and the intelligence community on April 21, 2017, requesting information relating to the Russian government’s election meddling in 2016.
The requests also asked for communication between the White House and members of Congress regarding the Russian election involvement inquiry.
The requests were made in order to develop a story that would later be mentioned in a redacted version of the Mueller Report.
Following the firing of former FBI Director James Comey, the special counsel confirmed that Trump called NSA Director Mike Rogers and told him that “the problem with the Russians was mucking with” his ability to deal with the Russian government.
According to the Mueller Report, “the President also remarked that the news stories tying him to Russia were false and asked Rogers if he could do anything to disprove the stories.” “NSA Deputy Director Richard Ledgett, who was present for the call, described it as the strangest thing he had ever seen in his 40 years of federal service.”
Protect Democracy narrowed its FOIA request in 2018 to include any memo written by senior NSA officials about a presidential conversation with senior NSA officials “in which the White House asked the NSA to publicly dispute any suggestion of collusion between Russia and the Trump campaign,” according to Protect Democracy.
Protect Democracy filed a lawsuit when the administration refused to provide the document.
The memo was appropriately withheld under the presidential communications privilege, according to a federal district court order.
The judge also turned down the watchdog group’s request to study the memo for any parts that could be separated from the rest of the document and dismissed the idea that the government had lost its privilege by providing a synopsis of the memo in the Mueller report.
“Records of what was spoken by or directly to the President are at the heart of the presidential communications privilege,” the Circuit Court wrote, upholding the lower court’s judgment.
Protect Democracy argued that the court should make a “narrow exception” and require portions of the memo to be segregated and disclosed if there are credible allegations that a privileged communication “contains information manifesting governmental misconduct.” The Circuit Court rejected this argument as well.
The verdict noted, “There is no precedent binding on this court that accepts the misbehavior exception Protect Democracy seeks.”
“Protect Democracy contends that, in asking us to draft a specific segregability rule in cases involving genuine allegations of misbehavior, it is not attempting to circumvent the privilege—rather, it is requesting access to only those portions of a record that are not privileged. However, because the memo is protected—that is, privileged—in its totality, any attempt to make it separable entails an effort to defeat the privilege.”