A court allows discovery into whether DOJ must release a secret judicial memo.

Record source: CourtListener

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND RES IPSA MEDIA, LLC, d/b/a LAW AND CHAOS PODCAST, Plaintiff, Case No. 25-cv-2866-ABA v. DEPARTMENT OF JUSTICE, Defendant. MEMORANDUM OPINION Following a meeting in March 2025 of the Judicial Conference of the United States, the national policymaking body for the federal courts, one of the judges in attendance prepared a memorandum that apparently mentioned a comment to the Judicial Conference made by another member, Chief Judge James E. Boasberg of the United States District Court for the District of Columbia. That memorandum ended up in the hands of Chad Mizelle, the now-former Chief of Staff to the U.S. Attorney General. The record in this case does not reveal how that happened. Mizelle then filed a judicial misconduct complaint against Judge Boasberg “on behalf of the Department of Justice.” In re Complaint of Jud. Misconduct, Case No. 06-25-90173, 2025 WL 4103506, at *1 (6th Cir. Dec. 19, 2025). DOJ filed that complaint after becoming dissatisfied with Judge Boasberg’s rulings in the high-profile case J.G.G. v. Trump, which involved the transfer of 261 individuals to El Salvador under the Alien Enemies Act. The statement by Judge Boasberg to fellow federal judges in March 2025 that DOJ claimed constituted “misconduct” was allegedly expressing “concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.” In re Complaint, 2025 WL 4103506 at *3. The DOJ/Mizelle complaint, after referring to that comment, dropped a footnote: “Attachment A at 16.” “The complaint, however, did not include the attachment.” Id. That led Plaintiff Res Ipsa Media, LLC (“Res Ipsa”), which publishes the Law and Chaos podcast, to submit a Freedom of Information Act (“FOIA”) request for that “Attachment A”—the memorandum that apparently memorialized Judge Boasberg’s comment to his fellow members of the Judicial Conference. DOJ denied Res Ipsa’s request, contending that the document is not an “agency record”—meaning not a record of DOJ, which is subject to FOIA—but rather is a judiciary record and thus cannot be procured through FOIA. Res Ipsa brought this action seeking an order to compel production. DOJ has filed a motion to dismiss or, in the alternative, for summary judgment. DOJ also filed a declaration that partially explains the nature of the document in question, including that it was authored by a federal judge. The declaration also attests that DOJ is unaware of how the document came into its possession but it “did not find any indication that the document was officially transmitted to DOJ by the Judiciary.” ECF No. 21-2 ¶ 23. As explained below, the question of whether the memorandum at issue is an “agency record” ultimately turns on two main questions: (1) whether the judge who prepared it “manifest[ed] an intent” that the memorandum remain confidential or, instead, that it become subject to FOIA, Am. Civ. Liberties Union v. C.I.A., 823 F.3d 655, 664 (D.C. Cir. 2016), and (2) whether DOJ obtained the memorandum “[i]n performing [its] official duties,” U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 144 (1989). It does appear likely that the author manifested an intent for the memorandum to remain confidential, and that DOJ did not obtain the memorandum in performing official duties. But the parties dispute questions of fact pertinent to both inquiries. The Court will deny DOJ’s motion and allow Res Ipsa to conduct limited discovery. I. BACKGROUND1 On March 15, 2025, the federal government loaded 261 individuals onto a plane destined for El Salvador. While the plane was en route, a putative class action complaint was filed in the U.S. District Court for the District of Columbia, on behalf of those individuals and other noncitizens subject to potential removal under a Presidential Proclamation invoking the Alien Enemies Act (“AEA”). See Trump v. J.G.G., 604 U.S. 670, 671 (2025); see also J.G.G. v. Trump, Case No. 25-cv-766, ECF No. 1 (D.D.C. Mar. 15, 2025). The case was assigned to Chief Judge Boasberg, who issued temporary restraining orders preventing removal of any of the named plaintiffs or putative class members. See J.G.G., 604 U.S. at 671. DOJ represented the federal government in the J.G.G. litigation. It disagreed with Judge Boasberg’s initial order, and it appealed that order to the D.C. Circuit. The D.C. Circuit also rejected the government’s position, denying DOJ’s motion to stay on March 28, 2025. J.G.G. v. Trump, Case No. 25-5067, 2025 WL 914682 (D.C. Cir. Mar. 28, 2025). The Supreme Court issued its decision on April 7, 2025. It did not decide whether the AEA applied to the plaintiffs in that case, or whether application of the AEA to them was constitutional. J.G.G., 604 U.S. at 673. But it did rule that those plaintiffs, and any other “AEA detainees,” “are entitled to notice and opportunity to be heard,” and 1 At the pleadings stage, the Court must “accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.” King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). For purposes of a summary judgment motion, the Court construes the record in the light most favorable to the non- movant (here, Res Ipsa). See Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021). The Court will state the facts in this section mostly as alleged in Plaintiff’s complaint but will also relate the facts stated in the declaration DOJ provided with its motion, noting where those facts are disputed. that such notice “must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Id.; see also id. at 674 (Kavanaugh, J., concurring) (noting that “all nine Members of the Court agree that judicial review is available” to challenge their transfers). It further ruled, however, that “[c]hallenges to removal under the AEA . . . must be brought in habeas,” and thus in the districts where the persons were confined. Id. at 672. On April 16, Chief Judge Boasberg found that there was “probable cause that Defendants’ actions constitute contempt” based upon evidence of willful violation of his earlier temporary restraining order. J.G.G. v. Trump, 778 F. Supp. 3d 24, 55 (D.D.C.). That order was later vacated by the D.C. Circuit in August 2025. J.G.G. v. Trump, 147 F.4th 1044 (D.C. Cir. 2025). The litigation remains pending. See J.G.G., Case No. 25-cv- 766 (D.D.C.). After the Supreme Court’s ruling, DOJ remained aggrieved with the merits of Judge Boasberg’s orders in the J.G.G. case. But it was unsatisfied with its appeal and the Supreme Court’s order vacating Judge Boasberg’s initial injunction, as well as its then- pending mandamus action seeking to vacate the contempt order. DOJ took the extraordinary step of asserting that Judge Boasberg had engaged in “misconduct.” On July 29, 2025, Mizelle filed the judicial misconduct complaint at issue with the Judicial Council of the D.C. Circuit.

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