FOIA Request: CREW: Department of Justice (DOJ): Regarding Tom DeLay Investigation: 10/19/10 – DOJ...

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CREWIcitizens for responsibilityand ethics in washington

By facsimile: 202-514-6117

Rena Y. Kim

Chief, FOIA/PA Section

Criminal Division

U.S . Department of Justice

Suite 1127, Keeney Building

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001

October 19,2010

Re: Freedom of Information Act Request

Dear Ms . Kim:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for

records, regardless of format, medium, or physical characteristics, and including electronic

record s and information, audiotapes, videotapes and photographs, pursuant to the Freedom of

Information Act ("FOIA") , 5 U.S.c. §§ 552, et seq. , and U.S. Department of Justice ("DOJ")

regulations, 28 C.F .R. Part 16.

Specifically, CREW requests any witness statements, inve stigation reports, prosecution

memoranda, and FBI 302 reports related to DOJ's investigation of former House Majority Leader

Tom DeLay. This includes, but is not limited to, DOJ's investigation of relationships between

Mr. DeLay and Christine DeLay, Dani DeLay, Jack Abramoff, Edwin Buckham, Tony Rudy,

Michael Scanlon, Susan Hirshmann, the Alexander Strategy Group, the National Center for

Public Policy Research, eLottery, Inc., the U.S. Family Network, Americans for a Republican

Majority PAC ("ARMPAC") , Texans for a Republican Majority PAC ("TRMPAC") , and/or the

Commonwealth of the Northern Marianas Islands.

Mr. DeLay was one of the subjects ofDOJ's extensive investigation into illegal lobbying

activities by Mr. Abramoff and others. See R. Jeffrey Smith, Justice Depmiment Drops

Investigation of DeLay Ties to Abramoff, Wash. Post, August 17, 2010 (attached as Exhibit A).

Among other things, DOJ investigated allegations Mr. Abramoff, Mr. Buckham, and Mr. Rudy

laund ered money from entities with interests before Congress through non-profit organizations topay for Mr. and Mrs . DeLay 's overseas travel. For example, Mr. Abramofffunneled payments

provided by eLottery, Inc . and other gambling interests through the National Center for Public

Polic y Research to pay for Mr. and Mrs. DeLay 's trip to Scotland, and used the same

organi zation to launder money from a Rus sian oil company to pay for Mr. and Mrs. DeLay 's trip

to Russia. See, e.g. , Phil Shenon, Ex-DeLay Aide Pleads Guilty In Lobby Case, N.Y Times,

Aprill , 2006 (attached as Exhibit B); R. Jeffrey Smith, The DeLay-AbramoffMoney Trail ,

1400 Eye Street, nw, Suite 450,Wash ington, D.C. 20005 I 202.408.5565 phone I 202.588.5020fax I www .citizensforethics.



Rena Y. Kim

October 19,2010

Wash. Post, December 31,2005 (attached as Exhibit C); R. Jeffrey Smith, DeLay Airfare Was

Charged To Lobbyist's Credit Card, Wash. Post, April 24, 2005 (attached as Exhibit D); JamesV. Grimaldi & R. Jeffrey Smith, Gambling Interests Funded DeLay Trip, Wash. Post, March 12,

2005 (attached as Exhibit E).

DOJ also investigated allegations: (1) the Alexander Strategy Group, a lobbying firm run

by Mr. Buckham and Mr. Rudy, employed Mrs. DeLay in an effort to influence Mr. DeLay, see

Susan Schmidt & James V. Grimaldi, Lawmakers Under Scrutiny in Probe of Lobbyist, Wash.

Post, November 26,2005 (attached as Exhibit F); Philip Shenon, Lobbying Cases Highlight

Prime Targets' Family Ties, N Y Times, April 9, 2006 (attached as Exhibit G); (2) Mrs. DeLay

and the DeLays' daughter Dani improperly were paid $350,000 in consulting fees and expenses

paid by ARMPAC, Mr. DeLay's political action committee, see Michael Hedges, As Lobbying

Scandal Drags On, DeLay Takes a Shot at FBI, Houston Chronicle, May 9,2007 (attached asExhibit H); (3) Mr. Abramoff and Mr. Buckham funneled $1 million from the Russian oil

company through the U.S. Family Network in an effort to influence Mr. DeLay and others, see

Smith, Wash. Post, December 31, 2005; Laylan Copelin, Subpoena List in DeLay Case Reads

Like Who's Who of Political, Business Interests, Austin American-Statesman, October 16,2010

(attached as Exhibit I); and (4) Mr. DeLay and two associates conspired to illegally lauder

corporate campaign contributions through TRMPAC, id.; and (5) Mr. Abramoff arranged for a

trip to the Commonwealth of the Northern Mariana Islands to influence Mr. DeLay, see Michael

Hedges, Lobbyist Pleads Guilty to Conspiracy, Houston Chronicle, November 22,2005 (attached

as Exhibit J).

DOJ apparently concluded its investigation ofMr. DeLay recently without bringing

charges against him. See Smith, Wash. Post, August 17,2010.

Please search for responsive records regardless of format, medium, or physical

characteristics. Where possible, please produce records electronically, in PDF or TIF format on a

CD-ROM. We seek records of any kind, including electronic records, audiotapes, videotapes,

and photographs. Our request includes any letters, emails, facsimiles, telephone messages, voice

mail messages, and transcripts, notes, or minutes of any meetings, telephone conversations, or

discussions. Our request also includes any attachments to these records.

Ifit is your posit ion that any portion

ofthe requested records is

exemptfrom disclosure,CREW requests that you provide it with an index of those documents as required under Vaughn

v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a

Vaughn index must describe each document claimed as exempt with sufficient specificity "to

permit a reasoned judgment as to whether the material is actually exempt under FOIA."

Founding Church ofScientology v. Bell, 603 F.2d 945,949 (D.C. Cir. 1979). Moreover, the

Vaughn index must "describe each document or portion thereofwithheld, and for each

withholding it must discuss the consequences of supplying the sought-after information." King v.



Rena Y. Kim

October 19,2010

us. Dep 't ofJustice, 830 F.2d 210,223-24 (D.C. Cir. 1987) (emphasis added). Further, "the

withholding agency must supply 'a relatively detailed justification, specifically identifying thereasons why a particular exemption is relevant and correlating those claims with the particular

part of a withheld document to which they apply. '" ld. at 224 (citing Mead Data Central v. Us.

Dep't ofthe Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).

In the event that some portions of the requested records are properly exempt from

disclosure, please disclose any reasonably segregable non-exempt portions of the requested

records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt

segments, but that those non-exempt segments are so dispersed throughout the document as to

make segregation impossible, please state what portion of the document is non-exempt, and how

the material is dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims

of nonsegregability must be made with the same degree of detail as required for claims ofexemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is

not reasonable to segregate portions of the record for release.

Finally, CREW welcomes the opportunity to discuss with you whether and to what extent

this request can be narrowed or modified to better enable DOl to process it within the FOIA's

deadlines.

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k), CREW

requests a waiver of fees associated with processing this request for records. The subject of thisrequest concerns the operations of the federal government and expenditures, and the disclosures

will likely contribute to a better understanding of relevant government procedures by CREW and

the general public in a significant way. Moreover, the request is primarily and fundamentally for

non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v.

Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

These records are likely to contribute to greater public awareness of alleged malfeasance

and possible criminal behavior by the former majority leader of the House of Representatives,

and ofDOl's recently concluded investigation into Mr. DeLay's activities. Related DOl

investigations resulted in criminal convictions ofMr. Abramoff, Mr. Rudy, Mr. Scanlon, former

Rep. Bob Ney, and others. While DOl eventually decided not to prosecute Mr. DeLay, his

activities still may have been illegal or violations of the rules of the House of Representatives,

and the requested records would shed light on them. In addition, other criminal allegations

against Mr. DeLay remain very active - a trial on state charges related to money laundering

through TRMPAC is scheduled to begin on October 26,2010. See Copelin, Austin American-

Statesman, October 16, 2010. The public unquestionably has a powerful interest in learning the

extent to which a leading member of Congress engaged in illegal or improper behavior. Us.

Dep 't ofJustice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 774 (1989)



Rena Y. Kim

October 19,2010

(suggesting a public interest in documents that would reveal a congressman's allegedly corrupt

behavior).

These documents also would shed light on DOl's conduct in conducting the investigation

ofMr. DeLay, and its apparent decision to close the investigation without bringing charges

against Mr. DeLay.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

Revenue Code. CREW is committed to protecting the public's r ight to be aware of the activities

of government officials and to ensuring the integrity of those officials. CREW uses a

combination of research, litigation, and advocacy to advance its mission. The release of

information garnered through this request is not in CREW's financial interest. CREW will

analyze the information responsive to this request, and will share its analysis with the public,either through memoranda, reports, or press releases. In addition, CREW will disseminate any

documents it acquires from this request to the public through its website,

www.citizensforethics.org,which also includes links to thousands of pages of documents CREW

acquired through its multiple FOIA requests as well as documents related to CREW's litigation

and agency complaints, and through www.scribd.com.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because

CREW qualifies as a "representative of the news media" pursuant to the FOIA and SEC

regulation 17 C.F.R. § 200.80(e)(10). In Nat 'ISec. Archive v. Us. Dep t ofDefense, 880 F.2d1381,1386 (D.C. Cir. 1989), the Court ofAppeals for the District of Columbia Circuit found the

National Security Archive was a representative of the news media under the FOIA, relying on the

FOIA's legislative history, which indicates the phrase "representative of the news media" is to be

interpreted broadly; "i t is critical that the phrase 'representative of the news media ' be broadly

interpreted if the act is to work as expected.... In fact, anyperson or organization whichregularly publishes or disseminates information to the public . . . should qualify for waivers as a

'representative of the news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis

added), cited in id.

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, y,rv·/,v.citizensforethics.onr, that

received 108,643 visits in September 2010. In addition, CREW posts all of the documents it

receives under the FOIA on www.scribd.com. and that site has received 419, 786visits to

CREW's documents since April 14,2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that

currently has 17,322 subscribers. CREWCuts provides subscribers with regular updates

regarding CREW's activities and information the organization has received from government



Rena Y. Kim

October 19,2010

entrtres. A complete archive of past CREWCuts is available at

http://wvv'vv.citizensforethics.org/newsletter.

Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics in

Washington, that reports on and analyzes newsworthy developments regarding government ethics

and corruption. The blog, located at http://'A'WW.citiznesforethics.org/blog, also provides links

that direct readers to other news articles and commentary on these issues. CREW's blog had

1,772 hits in September.

Finally, CREW has published numerous reports to educate the public about government

ethics and corruption, including agencies' failure to comply with their record keeping

responsibilities. See Record Chaos, which examines agency compliance with electronic record

keeping responsibilities; The Revolving Door, a comprehensive look into the post-governmentactivities of24 former members of President Bush's cabinet; and Those Who Dared: 30 Officials

Who Stood Up For Our Country. These and all other CREW's reports are available at

http://www.citizensforethics.org/reports.

Based on these extensive publication activities, CREW qualif ies for a fee waiver as a

"representative of the news media" under the FOIA and agency regulations.

Request for Expedition

Pursuant to 5 U.S.C. § 552(a)(6)(E)(I) and 28 C.F.R. § l6.5(d)(l)(iv), CREW requests

that your office expedite the processing of this request. As required by DOJ regulations, 28C.F.R. § l6.5(d)(2), CREW is submitting its request for expedition to the director of Public

Affairs. A copy of CREW's request is enclosed.

CREW also requests that DOJ expedite its request pursuant to 28 C.F.R. § l6.5(d)(l )(ii).

As explained above, CREW is engaged primarily in the dissemination of information that it

gathers from a variety of sources, including the FOIA, and seeks the information requested in the

FOIA request for the express purpose of disseminating it to the public. In addit ion to the

websites on which CREW posts all documents it acquires through the FOIA, CREW's website

contains numerous examples of its efforts, including reports it has published based on

information it receives through the FOIA. For example, CREW's report, Record Chaos: The

Deplorable State ofElectronic Record Keeping in the Federal Government, was based onsignificant part on documents CREW requested under the FOIA from a variety of agencies,

including DOl

There is a particular urgency to inform the public about these investigations because, as

noted above, Mr. DeLay's criminal trial on state conspiracy charges is scheduled to begin in one

week. See Copelin, Austin American-Statesman, October 16, 2010. Witnesses subpoenaed by

the prosecution for the trial include Mr. Buckham and Mr. Scanlon, who may be questioned



Rena Y. Kim

October 19, 2010

about '' ' the inner workings ofTom DeLay' s political organization ' as well as the defendant's

lobby-paid trips to Russia, Scotland and the Northern Marianas Islands" that were the subjectof

DOl' s investigation. Id. In light of the importance of this information for Mr. DeLay' s crim inal

trial, immediate act ion is required .

Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW' s request for

expedition, as outlined above, is true and correct to the best ofmy knowledge and belief.

Conclusion

If you have any questions about this request or foresee any problems in releasing fully the

requested records please contact me at (202) 408-5565. Also , if CREW 's request for a fee

waiver is not granted in full, please contact our office immediately upon making such adetermination. Please send the requested records to Adam 1. Rappaport, Citizens for

Responsibility and Ethics in Washington, 1400 Eye Street, N .W., Suite 450 , Washington, D.C.

20005.

Sincerely,

Senior Counsel

Enclosures

FOIA Request: CREW: Department of Justice (DOJ): Regarding Tom DeLay Investigation: 10/19/10 – DOJ...

Documents

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