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GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: (212) 637-2769
Facsimile: (212) 637-2786
ANDREW E. KRAUSE
Assistant United States Attorney
– Of Counsel –
Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 2 of 4
Geoffrey S. Berman, United States Attorney for the Southern District of New York, respectfully
submits this response to Plaintiff’s Motion to Supplement the Record to include “materials [that]
were not available to the parties during the briefing of the summary judgment motions.” See
Nunes Memorandum. See Dkt. Nos. 39, 39-2. As set forth in the letter attached as Exhibit A to
the Schultz Declaration (“McGahn Letter”), the President declassified the memorandum, which
included references to the existence of FISA material related to Carter Page. See Dkt. Nos. 39-1,
39-2. While DOJ disputes that the Nunes Memorandum and the McGahn Letter have any
bearing on the meaning of the four-part post on President Trump’s Twitter account on March 4,
2017, see Dkt. No. 39 ¶ 6, DOJ does not dispute that these disclosures affect the scope of DOJ’s
Although Carter Page was not associated with the Trump campaign when the initial FISA
order was obtained, the FISA applications are potentially responsive to that portion of Plaintiff’s
FOIA request that seeks “all information provided to or received from the FISA Court pertaining
to requests made in 2016 for one or more warrants to conduct electronic surveillance on . . . any
the existence of the Page FISA applications and orders identified in the Nunes Memorandum.
Declassification by the President of the existence of the Page FISA applications and
orders identified in the Nunes Memorandum requires the government to carefully review those
materials to determine what information contained in them has been declassified and whether
Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 3 of 4
they are responsive to Plaintiff’s request. Given recent events, and the possibility of additional
declassifications by the President, the government is unable at this time to propose a timetable to
In cases pending in the United States District Court for the District of Columbia (James
Madison Project v. United States Department of Justice, No. 17-597-APM) and the United States
District Court for the Northern District of California (Poulsen v. United States Department of
Defense, et al., No. 17-cv-3531-WHO), where the respective plaintiffs are seeking similar
records via FOIA, the government requested that pending summary judgment motions be
terminated as moot, and further requested that the parties be given 30 days to confer with counsel
for the respective plaintiffs to propose a reasonable schedule for the government to make
additional disclosures of records, if any, and to re-brief summary judgment, including asserting
any remaining partial Glomar response. See James Madison Project Dkt. No. 32; Poulsen Dkt.
No. 42. Plaintiff in the James Madison Project matter did not object to the government’s request
to terminate the pending motions, see James Madison Project Dkt. No. 33; accordingly, the court
denied the pending motions as moot, and scheduled a status conference for March 19, 2018, see
James Madison Project Minute Order dated Feb. 16, 2018. In the Poulsen matter, plaintiff
objected to the government’s motion to withdraw its pending summary judgment motion, see
Poulsen Dkt. No. 43; on February 16, 2018, the court granted the government’s motion, directed
the parties to file a joint case management statement by March 20, 2018, and scheduled a case
management conference for March 27, 2018, at which point the court “will set a deadline for the
filing of a renewed motion for summary judgment if the parties have not agreed to a briefing
2
Case 1:17-cv-03566-DLC Document 40 Filed 02/20/18 Page 4 of 4
Here, counsel for the government and counsel for Plaintiff have conferred about the
appropriate next steps for this litigation, and Plaintiff objects to the government’s proposal to
terminate the pending motions. Accordingly, and without prejudice the either party’s ability to
make any applications or proposals in the future, the parties jointly propose that the current
motions for summary judgment (Dkt. Nos. 20-22, 30-32, 33-34, 37) be held in abeyance for 30
days, with the parties to provide a written status report and scheduling proposal to the Court on
or before March 22, 2018, and/or to appear in person for a status conference with the Court to
In sum, while the government does not oppose Plaintiff’s motion to supplement the
record to include the Nunes Memorandum and the McGahn Letter, the government respectfully
submits that in light of recent developments and the government’s need to modify its current
response to Plaintiff’s FOIA request, the Court should grant the parties’ joint proposal to hold the
current motions in abeyance for 30 days and allow the parties to provide a further scheduling
proposal at that time, and/or direct the parties to appear in person for a status conference.