No Irreparable Harm

The United States District Court for the District of Columbia (Judge Kelly  denied a motion for preliminary injunction in litigation to release volume II of the Smith report

In early January this year, then-Special Counsel Jack Smith delivered a two-volume report to the Department of Justice. The second volume focuses on his investigation into the possession of classified documents at Mar-a-Lago following President Trump’s first term. Unlike the first volume, though, the second has not been released publicly. Seeking to unveil Volume II, American Oversight submitted a FOIA request last month and followed that up with a motion for a preliminary injunction requiring DOJ to grant expedited processing of the request, make a timely determination on it, and produce non-exempt, responsive records. American Oversight insists that all of that must happen before Kash Patel’s final confirmation vote for Director of the FBI because the Senate and public need to see whether Volume II casts doubt on his fitness for that role.

The bedrock requirement for the extraordinary relief that American Oversight seeks is irreparable harm—and, specifically, a showing that the requested relief will alleviate that harm. But American Oversight has not established that the injunction it requests would prevent (or even make less likely) the occurrence of the asserted harm of non-disclosure before Patel’s confirmation vote. DOJ has already told American Oversight that it cannot disclose Volume II because a judge has enjoined the agency from doing so. American Oversight’s request for an order compelling expedited processing and a timely determination, then, would not increase the likelihood that Volume II will be disclosed; even assuming that rendering a “determination” requires DOJ to decide whether any specific FOIA exemption applies to Volume II, a judge’s order will still prevent the agency from releasing the document no matter what exemption decisions it makes. For essentially the same reasons, an order requiring the production of records that DOJ has found to be nonexempt and responsive would also fail to move American Oversight closer to avoiding the alleged harm. Finally, with respect to its belated claim that DOJ is wrongfully withholding Volume II because of the judge’s order—a claim that requests relief beyond what courts have recognized as available to a FOIA plaintiff through a preliminary injunction—American Oversight has not shown either that the relief it seeks would alleviate its irreparable harm or a likelihood that its claim will succeed. An agency does not improperly withhold a record when a court order bars disclosure, which is precisely what the injunction here does. For all these reasons, the Court will deny American Oversight’s motion for a preliminary injunction.

(Mike Frisch)