CREW I citizens for responsibility

and ethics in washington

October 19,2010

By facsimile: 202-514 -611 7

Rena Y. Kim
Chief, FOIA/P A Section
Criminal Division
U.S . Department of Justice
Suite 1127, Keeney Building
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Re: Freedom of Information Act Request

Dear Ms . Kim :

Citi zens 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 lobb ying
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. Rud y
laund ered money from entities with interests before Congress through non-profit organizations to
pay for Mr. and Mrs . DeLay 's overseas travel. For example, Mr. Abramofffunneled payment s
pro vided 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 202.588.5020 fax I www.citizensforethics.org
Rena Y. Kim
October 19,2010
Page 2

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); James
V. 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 as
Exhibit 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 of Mr. 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.

If it is your position that any portion of the requested records is exempt from 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 thereof withheld, and for each
withholding it must discuss the consequences of supplying the sought-after information." King v.
Rena Y. Kim
October 19,2010
Page 3

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 the
reasons 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 of
exemptions 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 this
request 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 of DOl's recently concluded investigation into Mr. DeLay's activities. Related DOl
investigations resulted in criminal convictions of Mr. 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 ofthe Press, 489 U.S. 749, 774 (1989)
Rena Y. Kim
October 19,2010
Page 4

(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
of Mr. 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 right 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 'I Sec. Archive v. Us. Dep t ofDefense, 880 F.2d
1381,1386 (D.C. Cir. 1989), the Court of Appeals 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; "it is critical that the phrase 'representative of the news media' be broadly
interpreted if the act is to work as expected.... In fact, any person or organization which
regularly publishes or disseminates information to the public . . . should qualify for waivers as a
'representative ofthe 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
Page 5

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-government
activities 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 qualifies 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, 28
C.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 addition 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 on
significant 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
Octo ber 19, 2010
Page 6

abo ut ''' the inner workings of Tom DeLay' s po litical organization' as well as the defen dant's
lobby-paid trips to Ru ssia, Scotland and the N orthern Ma rianas Island s" that were the subject of
DOl' s investigation. Id. In light of the importance of thi s information for Mr. DeLay' s crim inal
trial, immedi ate action is required.

Pur suant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CRE W' s request for
expedition, as outlined above, is true and correct to the best of my knowledge and belief.

Conclusion

If you have any questions about thi s request or foresee any probl em s in releasin g fully the
requ ested record s please contact me at (202) 40 8-5565. Also , if CREW 's requ est for a fee
waiver is not granted in full, please contact our office imm ediately upon making such a
determination. Please send the requested records to Adam 1. Rapp aport, Citizens for
Responsibility and Ethics in Wa shington, 1400 Eye Street, N .W., Suite 450 , Was hington, D.C.
20005 .

Since rely,

Senior Counsel

Enclosures