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FOIA Request: CREW: Federal Bureau of Investigation (FBI) : Regarding Tom DeLay Investigation: 10/19/10
FOIA Request: CREW: Federal Bureau of Investigation (FBI) : Regarding Tom DeLay Investigation: 10/19/10
October 19,2010
By facsimile: 540-868-4995
Dear Sir/Madam:
Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for
records, regardless of format, medium, or physical characteristics, and including electronic
records 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.
Mr. DeLay was one of the subjects of DOl's extensive investigation into illegal lobbying
activities by Mr. Abramoff and others. See R. Jeffrey Smith, Justice Department 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
laundered money from entities with interests before Congress through non-profit organizations to
pay for Mr. and Mrs . DeLay's overseas travel. For example, Mr. Abramoff funneled payments
provided by eLottery, Inc. and other gambling interests through the National Center for Public
Policy Research to pay for Mr. and Mrs. DeLay's trip to Scotland, and used the same
organization to launder money from a Russian 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,
April 1,2006 (attached as Exhibit B); R. Jeffrey Smith, The DeLay-Abramoff Money Trail,
1400 Eye Street, N.w., Suite 450, Washington, D.C . 20005 I 202.408.5565 phone I 202.588.5020fax I www.citizensforethics.org
Federal Bureau of Investigation
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, A ustin 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.
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.
Federal Bureau of Investigation
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 the FBI to process it within the FOIA's
deadlines.
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 ofDOJ's recently concluded investigation into Mr. DeLay's activities. Related DOJ
investigations resulted in criminal convictions of Mr. Abramoff, Mr. Rudy, Mr. Scanlon, former
Rep. Bob Ney, and others. While DOJ 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)
Federal Bureau ofInvestigation
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
ofMr. DeLay, and its apparent decision to close the investigation without bringing charges
against Mr. DeLay.
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 COUli 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.
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
Federal Bureau ofInvestigation
October 19,2010
Page 5
Third, CREW publishes a blog, Citizens blogging for responsibility and ethics in
Washington, that reports on and analyzes newsworthy developments regarding government ethics
and corruption. The blog, located at http://www.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 ForA and agency regulations.
CREW also requests that DOJ expedite its request pursuant to 28 C.F.R. § 16.5(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 FOrA, and seeks the information requested in the
FOrA 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 FOrA, CREW's website
contains numerous examples of its efforts, including reports it has published based on
information it receives through the FOrA. 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 FOrA 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,AustinAmerican-Statesman, October 16,2010. Witnesses subpoenaed by
the prosecution for the trial include Mr. Buckham and Mr. Scanlon, who may be questioned
Federal Bureau of Investigation
Octo ber 19, 2010
Page 6
abou t " ' the inner wo rkings of Tom DeLay' s po litical organization' as we ll as the defendant' s
lobby-paid trips to Ru ssia, Sco tland and the Northern Marianas Islands" that were the subject of
DOl' s investigation . Id. In light of the importance of this inform ation for Mr. DeLay' s criminal
trial, imm ediate action is required .
Pur suant to 28 C.F.R . § 16.5(d)(3), I hereby certi fy that the basis for CREW'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 relea sing fully the
requested records please contac t me at (202) 408-5 565. Also, if CREW 's requ est for a fee
waiver is not granted in full, please contact our office immediately upon making such a
determin ation . Please send the requ ested records to Adam J. Rapp aport, Citize ns for
Responsibili ty and Ethics in Was hingto n, 1400 Eye Street, N .W ., Suite 450 , Was hington, D.C.
20005.
Sincerely,
'¥2
Ada m J. Rapp ap
Senior Coun sel
Enclosures