There was a problem locating the requested document.
Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AARON GREENSPAN,
Plaintiff,
v.
Case No. 1:23-cv-01816-BAH
FEDERAL BUREAU OF INVESTIGATION,
et al,
Defendants.
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENTPage 2 TABLE OF CONTENTS
I.
INTRODUCTION .............................................................................................................. 1
II.
ARGUMENT ...................................................................................................................... 1
III.
A.
“Incorporation By Reference” Means The USDOJ Stated The Contents of The
IRS Affidavit As Its Own Words Before A United States District Court .............. 1
B.
The FBI’s Lack of Any Challenge To The Accuracy of The FBI Case Number
Sub-File Plaintiff Requested Is An Indication That Such Documents Exist .......... 2
C.
Plaintiff Cited At Least One Clear Example of Plausible Malfeasance By The
FBI, Which Defendants Simply Ignored In Their Brief ......................................... 2
D.
Defendants’ “Personal Privacy” Arguments Reward Crime and Lead To The
Perverse Conclusion That One Criminal’s Privacy Interests Outweigh The
Interests of Hundreds of Millions of People ........................................................... 3
E.
The Moss Affidavit Explicitly Acknowledged “Information Provided By Special
Agents of The IRS, DEA, [and] FBI” ..................................................................... 5
F.
Agbele’s Indictment and Entire Criminal Case Should Be Unsealed..................... 6
CONCLUSION ................................................................................................................... 6
TABLE OF AUTHORITIES
Cases
Citizens for Responsibility v. Dept. of Justice, 846 F. Supp. 2d 63, 72 (D.D.C. 2012) ........................................................................................ 5
CREW v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 233, 2012 WL 45499, at *6 (D.D.C. 2012) .............................................. 5
CREW v. US Dept. of Justice, 978 F. Supp. 2d 1, 13 (D.D.C. 2013) .......................................................................................... 5
EPIC v. Dept. of Justice, 584 F. Supp. 2d 65, 78 (D.D.C. 2008) ........................................................................................ 2
McGehee v. CIA, 697 F.2d 1095, 1108 (D.C.Cir.1983) .......................................................................................... 4
Stern v. FBI, 737 F. 2d 84, 88 (D.C. Cir. 1984) ............................................................................................... 4
USA v. Edwards et al,
Case No. 2:92-cr-00113-RL (N.D. Indiana filed August 20, 1992) ........................................... 2
iPage 3 INTRODUCTION
This is not a complicated case; in fact, it is so straightforward that one must wonder if
Defendants are simply trying to delay for political reasons by making arguments that they know
are baseless. Defendants deliberately evade the use of three key words, “incorporated by
reference,” to make it seem as though that Defendants Federal Bureau of Investigation (“FBI”)
and Drug Enforcement Administration (“DEA”) have a colorable argument, when in fact, they
do not. The fact is that in a publicly-accessible 1993 civil lawsuit, the United States Department
of Justice (“USDOJ”) incorporated an Internal Revenue Service (“IRS”) affidavit by reference
into its formal complaint, which therefore constituted official acknowledgement of Bola
Tinubu’s criminal involvement in money laundering for a Chicago-based narcotrafficking ring.1
Tinubu lived in Chicago at the time. Defendants now claim that the affidavit was merely
“attached.” This is simply false. Incorporation by reference goes above and beyond the filing of
an exhibit, and Defendants know it.
As for Defendant Central Intelligence Agency (“CIA”), the CIA claims that to provide
anything but a Glomar response, neither confirming nor denying the existence of responsive
records, would necessarily implicate classified information. The open availability of previously
classified documents on the CIA FOIA Reading Room from the same timeframe makes this
explanation questionable.
II.
ARGUMENT
A.
“Incorporation By Reference” Means The USDOJ Stated The Contents of
The IRS Affidavit As Its Own Words Before A United States District Court
Defendants state, “Plaintiff contends that an affidavit of an IRS special agent that was
attached to a 1993 complaint for forfeiture of Tinubu’s funds…” This is only a partial truth in
service of a greater falsehood. The Moss Affidavit, part of ECF No. 41-4 Exhibit A, was indeed
“attached,” but it was also “incorporated by reference.” ECF No. 41-4 at 3. Defendants refuse
The IRS affidavit by Special Agent Kevin Moss outlines at least six federal crimes committed
by Tinubu, which may or may not have been charged under seal.
1
1Page 4 to acknowledge this simple fact because it defeats their argument. The USDOJ adopted the
IRS’s words as its own. The USDOJ is indisputably the parent agency of Defendants FBI and
DEA. Thus, the USDOJ officially acknowledged Bola Tinubu’s involvement in the
circumstances that are subject of Plaintiff’s FOIA requests, and a Glomar response is not
available for Defendants FBI and DEA to invoke. The fact pattern here differentiates this case
from other cases such as EPIC v. Dept. of Justice, 584 F. Supp. 2d 65, 78 (D.D.C. 2008). “There
‘must be evidence that an agency has actually adopted or incorporated by reference the
document at issue’” (citations omitted). Id. Here, there is, which is why Defendants refuse to
talk about it.2 It’s that simple.
B.
The FBI’s Lack of Any Challenge To The Accuracy of The FBI Case
Number Sub-File Plaintiff Requested Is An Indication That Such Documents
Exist
Defendant FBI is careful to validate every detail of Plaintiff’s allegations, whether made
in FOIA appeals, Plaintiff’s Second Amended Complaint, his summary judgment motion, or
otherwise. See, e.g., ECF No. 42-3 at 5, n. 3 (correcting Plaintiff’s inadvertent minor error).
One fact Defendant FBI never bothers to correct is the accuracy of the specific FBI sub-file
identifier that Plaintiff requested: 245-IP-71386-UUUUUU. That is because the sub-file exists,
pertains to Bola Tinubu, and is accurately described. Given that the FBI refuses to deny that the
sub-file exists—and it does exist—a Glomar response is not available to invoke.
C.
Plaintiff Cited At Least One Clear Example of Plausible Malfeasance By The
FBI, Which Defendants Simply Ignored In Their Brief
Plaintiff’s Statement of Material Facts As To Which There Is No Genuine Issue, ECF No.
41-2, states at ¶¶ 17-18, “Former FBI Special Agents Karen and Robert Pertuso were involved in
the investigation into the Lee Andrew Edwards/Mueez Akande/Abiodun Agbele/Bola Tinubu
drug ring. USA v. Edwards et al, Northern District of Indiana Case No. 2:92-cr-00113-RL
March 9, 1993 Trial Transcript. According to The Washington Post, former FBI Special Agents
Instead, Defendants attempt to distract the Court with talk of “dangerous precedent.” This is
nonsense.
2
2Page 5 Karen and Robert Pertuso were involved in a scandal later in their careers at the FBI pertaining
to their joint and simultaneous involvement in FBI investigations despite being married couple.
See https://www.washingtonpost.com/archive/politics/2004/01/31/fbi-investigates-head-ofdetroit- office/59f381b5-66af-49f3-b980-9da146f72043/. ”
In ECF No. 42-2, Defendants responded to these points arguing, “The transcript says
what it says. Next, an agent testifying in court does not waive or diminish the privacy rights of
any other individual(s) nor does it pierce a Glomar response. Finally, most important, the
referenced information is immaterial to Plaintiff’s challenge to the Glomar response about
Tinubu.. [sic] The article speaks for itself but immaterial.” Defendants do not cite any legal
authority for their baseless contention about a federal “agent testifying in court” having no
bearing on whether or not an official acknowledgement of a fact has been made. More
importantly, the inclusion of these allegations in Plaintiff’s Statement of Material Facts—for
they are indisputable facts, not just legal argument—flies in the face of Defendants’ false
allegation that “Plaintiff fails to make the threshold ‘meaningful evidentiary showing’ that the
asserted public interest of Government misconduct might have occurred.” ECF No. 42-1 at 19.
The showing is there; Defendants simply refuse to acknowledge that it might matter, labeling it
“immaterial.” That is an altogether different argument.
Beyond whatever role the Pertuso agents might have had in the Tinubu saga, the fact that
the FBI, DEA and CIA appear to be protecting a known money launderer from public scrutiny is
itself something that many citizens would consider an obvious example of “what the government
would have done wrong.” Defendants have lost the forest for the trees; the “Government
impropriety” here is apparently ongoing, and opposing counsel are complicit in it.
D.
Defendants’ “Personal Privacy” Arguments Reward Crime and Lead To The
Perverse Conclusion That One Criminal’s Privacy Interests Outweigh The
Interests of Hundreds of Millions of People
If Defendants had their way, there would be no such thing as newspapers. After all, the
types of disclosures in newspapers “would likely subject Tinubu to invasions of personal privacy
and harassment that could foreseeably be seen to detrimentally affect his personal and official
3Page 6 capacity.” ECF No. 42-1 at 16. To call such an argument absurd is an understatement, and it
flips FOIA on its head. “The central purpose of FOIA is to ‘open[ ] up the workings of
government to public scrutiny’ through the disclosure of government records. McGehee v.
CIA, 697 F.2d 1095, 1108 (D.C.Cir.1983).” Stern v. FBI, 737 F. 2d 84, 88 (D.C. Cir. 1984). The
rank speculation that, “Members of the public would draw adverse inferences about the
individuals from the mere fact that they might be mentioned in the law enforcement investigative
records,” has no basis in fact. Members of the public might also draw adverse inferences from
the fact that Defendants FBI and DEA have taken great pains to redact Bola Tinubu’s name from
thousands of pages of documents that concern his money laundering activities. In fact, fake
media outlets operated by Russian intelligence and an entire ecosystem of Nigerian
commentators have now seized on the Government’s improper redactions and refusal to divulge
documents as supposed “proof” that Bola Tinubu is an active CIA asset, despite Plaintiff’s best
efforts to correct the record. All would be better off with the truth being clearly divulged.
Defendants’ argument that Nigerian-Americans have only a right to know “‘about what
their government is up to,’ not what Tinubu was up to” and 230 million Nigerians, no right to
know anything at all about their government, is odious, but also runs into the not-so-small
problem that the documents in question may prove that Tinubu agreed to work on behalf of the
United States Government. Yet even if he did not, what Tinubu “was up to” still seems to be the
flip side of the exact same coin here, for Tinubu could not have been up to anything without
Defendants’ tacit permission given that he was named in the Moss Affidavit as a person having
committed six federal crimes. And even if the Government’s willingness to let Tinubu get away
with those six crimes was not the result of some sort of quid pro quo arrangement and just
general incompetence, even that incompetence is still appropriately a subject that falls squarely
within FOIA’s ambit, as it is, after all, a question not only of “what [the United States]
government is up to,” but also a question of “shining light on government wrongdoing.” “[A]
court in this District found a substantial public interest where Congress passed a specific piece of
legislation directing DOJ to investigate a member of the House of Representatives accused of
4Page 7 misconduct.” CREW v. US Dept. of Justice, 978 F. Supp. 2d 1, 13 (D.D.C. 2013). Tinubu is
credibly accused by the USDOJ of not just vanilla “misconduct,” but international money
laundering for a major narcotrafficking ring, and in Nigeria, of rigging an election. If that is not
enough to trigger a “substantial public interest,” then nothing is.
In sum, Tinubu is a criminal. Perhaps he is an uncharged one—that question remains
open—but he is a criminal nonetheless. For the FBI, which investigates criminal wrongdoing, to
put the privacy interests of a known criminal who now runs the government of a country of
hundreds of millions over the public interest of Americans and Nigerians, is perverse. Despite
repeatedly parroting the phrase “unwarranted invasion of personal privacy,” Defendants have no
response to Plaintiff’s assertion that any intrusion into Tinubu’s purported “personal privacy” is
more than “warranted.” Thus, by refusing to explain what would “warrant” such an
“invasion”—if not being elected President by a nation of hundreds of millions—they concede the
issue. Exemptions 6 and 7(C) do not apply to a sitting head of state because being elected to the
highest office in a land, and especially a land with numerous documented connections to the
United States of America and its Government, necessarily warrants additional scrutiny from the
public.
Furthermore, “When the fact of an investigation ‘is already a matter of public record,’ the
target's privacy interest in that information has ‘far less force.’ CREW v. U.S. Dep’t of
Justice, 840 F. Supp. 2d 226, 233, 2012 WL 45499, at *6 (D.D.C. 2012).” Citizens for
Responsibility v. Dept. of Justice, 846 F. Supp. 2d 63, 72 (D.D.C. 2012). Defendants cannot
dispute that the fact of Tinubu’s investigation(s) by multiple federal agencies are already matters
of public record.
E.
The Moss Affidavit Explicitly Acknowledged “Information Provided By
Special Agents of The IRS, DEA, [and] FBI”
Defendants effectively argue that the consecutive words “FBI file” needed to appear in
the Moss Affidavit, but this defies common sense. The details in the Moss Affidavit cover the
same details Plaintiff requested from the FBI. At all times relevant, it was standard practice for
“Special Agents of the…FBI” and “DEA” to record “information” in their agencies’ respective
5Page 8 files. If a federal agent references “information” provided by another federal agent in writing, as
happened here, then it is reasonable to assume that an associated file storing that information
exists. Defendants have already produced hundreds of pages from FBI File No. 245-IP-71386,
confirming that an FBI file exists associated with the same drug ring that the Moss Affidavit
discusses in detail. It is strange and confounding that in the same brief, Defendants argue that no
such file was ever acknowledged. If not information stored in files at the other agencies
mentioned, what was Kevin Moss talking about when he stated under oath, “I have also
discussed and compared information that I have about the methods used to launder money with
other experienced federal, state and local law enforcement agents.”? Defendants appear to
simply want to wish away with the Moss Affidavit. Especially given the document production
already issued by Defendants, its meaning is clear to any reasonable observer.
F.
Agbele’s Indictment and Entire Criminal Case Should Be Unsealed
Defendants nitpick on whether or not the FBI file mentioning “Agbele” also refers to the
DEA. Whether it does or does not on any given page is immaterial. The FBI has officially
acknowledged Agbele’s involvement; all documents bearing his name must now be unredacted
as the FBI’s Glomar response is moot. The DEA’s is as well; clearly the FBI and DEA worked
together throughout the course of the investigation in which Agbele was involved. We also now
know that Agbele was indicted, yet that indictment is nowhere to be found in PACER. The case,
now more than 30 years old, should be unsealed in its entirety.
III.
CONCLUSION
Defendants’ arguments are without merit and seem to be calculated to waste Plaintiff’s
and the Court’s time. A new administration, hostile to the existence of government itself, is
incoming. The Court should grant summary judgment for Plaintiff with all due haste.
6Page 9 Case 1:23-cv-01816-BAH Document 44 _ Filed 11/30/24 Page9of9
Dated: November 30, 2024
Respectfully submitted,
arr Leanyse~_—
Aaron Greenspan
956 Carolina Street
San Francisco, CA 94107-3337
Phone: +1 415 670 9350
Fax: +1 415 373 3959
E-Mail: aaron.greenspan @ plainsite.org
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:23-cv-01816-BAH
Document 44
Filed 11/30/24
Page 1 of 9
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AARON GREENSPAN,
Plaintiff,
v.
Case No. 1:23-cv-01816-BAH
FEDERAL BUREAU OF INVESTIGATION,
et al,
Defendants.
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
PDF Page 3
Case 1:23-cv-01816-BAH
Document 44
Filed 11/30/24
Page 2 of 9
TABLE OF CONTENTS
I.
INTRODUCTION .............................................................................................................. 1
II.
ARGUMENT ...................................................................................................................... 1
III.
A.
“Incorporation By Reference” Means The USDOJ Stated The Contents of The
IRS Affidavit As Its Own Words Before A United States District Court .............. 1
B.
The FBI’s Lack of Any Challenge To The Accuracy of The FBI Case Number
Sub-File Plaintiff Requested Is An Indication That Such Documents Exist .......... 2
C.
Plaintiff Cited At Least One Clear Example of Plausible Malfeasance By The
FBI, Which Defendants Simply Ignored In Their Brief ......................................... 2
D.
Defendants’ “Personal Privacy” Arguments Reward Crime and Lead To The
Perverse Conclusion That One Criminal’s Privacy Interests Outweigh The
Interests of Hundreds of Millions of People ........................................................... 3
E.
The Moss Affidavit Explicitly Acknowledged “Information Provided By Special
Agents of The IRS, DEA, [and] FBI” ..................................................................... 5
F.
Agbele’s Indictment and Entire Criminal Case Should Be Unsealed..................... 6
CONCLUSION ................................................................................................................... 6
TABLE OF AUTHORITIES
Cases
Citizens for Responsibility v. Dept. of Justice,
846 F. Supp. 2d 63, 72 (D.D.C. 2012) ........................................................................................ 5
CREW v. U.S. Dep’t of Justice,
840 F. Supp. 2d 226, 233, 2012 WL 45499, at *6 (D.D.C. 2012) .............................................. 5
CREW v. US Dept. of Justice,
978 F. Supp. 2d 1, 13 (D.D.C. 2013) .......................................................................................... 5
EPIC v. Dept. of Justice,
584 F. Supp. 2d 65, 78 (D.D.C. 2008) ........................................................................................ 2
McGehee v. CIA,
697 F.2d 1095, 1108 (D.C.Cir.1983) .......................................................................................... 4
Stern v. FBI,
737 F. 2d 84, 88 (D.C. Cir. 1984) ............................................................................................... 4
USA v. Edwards et al,
Case No. 2:92-cr-00113-RL (N.D. Indiana filed August 20, 1992) ........................................... 2
i
PDF Page 4
Case 1:23-cv-01816-BAH
I.
Document 44
Filed 11/30/24
Page 3 of 9
INTRODUCTION
This is not a complicated case; in fact, it is so straightforward that one must wonder if
Defendants are simply trying to delay for political reasons by making arguments that they know
are baseless. Defendants deliberately evade the use of three key words, “incorporated by
reference,” to make it seem as though that Defendants Federal Bureau of Investigation (“FBI”)
and Drug Enforcement Administration (“DEA”) have a colorable argument, when in fact, they
do not. The fact is that in a publicly-accessible 1993 civil lawsuit, the United States Department
of Justice (“USDOJ”) incorporated an Internal Revenue Service (“IRS”) affidavit by reference
into its formal complaint, which therefore constituted official acknowledgement of Bola
Tinubu’s criminal involvement in money laundering for a Chicago-based narcotrafficking ring.1
Tinubu lived in Chicago at the time. Defendants now claim that the affidavit was merely
“attached.” This is simply false. Incorporation by reference goes above and beyond the filing of
an exhibit, and Defendants know it.
As for Defendant Central Intelligence Agency (“CIA”), the CIA claims that to provide
anything but a Glomar response, neither confirming nor denying the existence of responsive
records, would necessarily implicate classified information. The open availability of previously
classified documents on the CIA FOIA Reading Room from the same timeframe makes this
explanation questionable.
II.
ARGUMENT
A.
“Incorporation By Reference” Means The USDOJ Stated The Contents of
The IRS Affidavit As Its Own Words Before A United States District Court
Defendants state, “Plaintiff contends that an affidavit of an IRS special agent that was
attached to a 1993 complaint for forfeiture of Tinubu’s funds…” This is only a partial truth in
service of a greater falsehood. The Moss Affidavit, part of ECF No. 41-4 Exhibit A, was indeed
“attached,” but it was also “incorporated by reference.” ECF No. 41-4 at 3. Defendants refuse
The IRS affidavit by Special Agent Kevin Moss outlines at least six federal crimes committed
by Tinubu, which may or may not have been charged under seal.
1
1
PDF Page 5
Case 1:23-cv-01816-BAH
Document 44
Filed 11/30/24
Page 4 of 9
to acknowledge this simple fact because it defeats their argument. The USDOJ adopted the
IRS’s words as its own. The USDOJ is indisputably the parent agency of Defendants FBI and
DEA. Thus, the USDOJ officially acknowledged Bola Tinubu’s involvement in the
circumstances that are subject of Plaintiff’s FOIA requests, and a Glomar response is not
available for Defendants FBI and DEA to invoke. The fact pattern here differentiates this case
from other cases such as EPIC v. Dept. of Justice, 584 F. Supp. 2d 65, 78 (D.D.C. 2008). “There
‘must be evidence that an agency has actually adopted or incorporated by reference the
document at issue’” (citations omitted). Id. Here, there is, which is why Defendants refuse to
talk about it.2 It’s that simple.
B.
The FBI’s Lack of Any Challenge To The Accuracy of The FBI Case
Number Sub-File Plaintiff Requested Is An Indication That Such Documents
Exist
Defendant FBI is careful to validate every detail of Plaintiff’s allegations, whether made
in FOIA appeals, Plaintiff’s Second Amended Complaint, his summary judgment motion, or
otherwise. See, e.g., ECF No. 42-3 at 5, n. 3 (correcting Plaintiff’s inadvertent minor error).
One fact Defendant FBI never bothers to correct is the accuracy of the specific FBI sub-file
identifier that Plaintiff requested: 245-IP-71386-UUUUUU. That is because the sub-file exists,
pertains to Bola Tinubu, and is accurately described. Given that the FBI refuses to deny that the
sub-file exists—and it does exist—a Glomar response is not available to invoke.
C.
Plaintiff Cited At Least One Clear Example of Plausible Malfeasance By The
FBI, Which Defendants Simply Ignored In Their Brief
Plaintiff’s Statement of Material Facts As To Which There Is No Genuine Issue, ECF No.
41-2, states at ¶¶ 17-18, “Former FBI Special Agents Karen and Robert Pertuso were involved in
the investigation into the Lee Andrew Edwards/Mueez Akande/Abiodun Agbele/Bola Tinubu
drug ring. USA v. Edwards et al, Northern District of Indiana Case No. 2:92-cr-00113-RL
March 9, 1993 Trial Transcript. According to The Washington Post, former FBI Special Agents
Instead, Defendants attempt to distract the Court with talk of “dangerous precedent.” This is
nonsense.
2
2
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Case 1:23-cv-01816-BAH
Document 44
Filed 11/30/24
Page 5 of 9
Karen and Robert Pertuso were involved in a scandal later in their careers at the FBI pertaining
to their joint and simultaneous involvement in FBI investigations despite being married couple.
See https://www.washingtonpost.com/archive/politics/2004/01/31/fbi-investigates-head-ofdetroit- office/59f381b5-66af-49f3-b980-9da146f72043/. ”
In ECF No. 42-2, Defendants responded to these points arguing, “The transcript says
what it says. Next, an agent testifying in court does not waive or diminish the privacy rights of
any other individual(s) nor does it pierce a Glomar response. Finally, most important, the
referenced information is immaterial to Plaintiff’s challenge to the Glomar response about
Tinubu.. [sic] The article speaks for itself but immaterial.” Defendants do not cite any legal
authority for their baseless contention about a federal “agent testifying in court” having no
bearing on whether or not an official acknowledgement of a fact has been made. More
importantly, the inclusion of these allegations in Plaintiff’s Statement of Material Facts—for
they are indisputable facts, not just legal argument—flies in the face of Defendants’ false
allegation that “Plaintiff fails to make the threshold ‘meaningful evidentiary showing’ that the
asserted public interest of Government misconduct might have occurred.” ECF No. 42-1 at 19.
The showing is there; Defendants simply refuse to acknowledge that it might matter, labeling it
“immaterial.” That is an altogether different argument.
Beyond whatever role the Pertuso agents might have had in the Tinubu saga, the fact that
the FBI, DEA and CIA appear to be protecting a known money launderer from public scrutiny is
itself something that many citizens would consider an obvious example of “what the government
would have done wrong.” Defendants have lost the forest for the trees; the “Government
impropriety” here is apparently ongoing, and opposing counsel are complicit in it.
D.
Defendants’ “Personal Privacy” Arguments Reward Crime and Lead To The
Perverse Conclusion That One Criminal’s Privacy Interests Outweigh The
Interests of Hundreds of Millions of People
If Defendants had their way, there would be no such thing as newspapers. After all, the
types of disclosures in newspapers “would likely subject Tinubu to invasions of personal privacy
and harassment that could foreseeably be seen to detrimentally affect his personal and official
3
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Case 1:23-cv-01816-BAH
Document 44
Filed 11/30/24
Page 6 of 9
capacity.” ECF No. 42-1 at 16. To call such an argument absurd is an understatement, and it
flips FOIA on its head. “The central purpose of FOIA is to ‘open[ ] up the workings of
government to public scrutiny’ through the disclosure of government records. McGehee v.
CIA, 697 F.2d 1095, 1108 (D.C.Cir.1983).” Stern v. FBI, 737 F. 2d 84, 88 (D.C. Cir. 1984). The
rank speculation that, “Members of the public would draw adverse inferences about the
individuals from the mere fact that they might be mentioned in the law enforcement investigative
records,” has no basis in fact. Members of the public might also draw adverse inferences from
the fact that Defendants FBI and DEA have taken great pains to redact Bola Tinubu’s name from
thousands of pages of documents that concern his money laundering activities. In fact, fake
media outlets operated by Russian intelligence and an entire ecosystem of Nigerian
commentators have now seized on the Government’s improper redactions and refusal to divulge
documents as supposed “proof” that Bola Tinubu is an active CIA asset, despite Plaintiff’s best
efforts to correct the record. All would be better off with the truth being clearly divulged.
Defendants’ argument that Nigerian-Americans have only a right to know “‘about what
their government is up to,’ not what Tinubu was up to” and 230 million Nigerians, no right to
know anything at all about their government, is odious, but also runs into the not-so-small
problem that the documents in question may prove that Tinubu agreed to work on behalf of the
United States Government. Yet even if he did not, what Tinubu “was up to” still seems to be the
flip side of the exact same coin here, for Tinubu could not have been up to anything without
Defendants’ tacit permission given that he was named in the Moss Affidavit as a person having
committed six federal crimes. And even if the Government’s willingness to let Tinubu get away
with those six crimes was not the result of some sort of quid pro quo arrangement and just
general incompetence, even that incompetence is still appropriately a subject that falls squarely
within FOIA’s ambit, as it is, after all, a question not only of “what [the United States]
government is up to,” but also a question of “shining light on government wrongdoing.” “[A]
court in this District found a substantial public interest where Congress passed a specific piece of
legislation directing DOJ to investigate a member of the House of Representatives accused of
4
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Case 1:23-cv-01816-BAH
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Page 7 of 9
misconduct.” CREW v. US Dept. of Justice, 978 F. Supp. 2d 1, 13 (D.D.C. 2013). Tinubu is
credibly accused by the USDOJ of not just vanilla “misconduct,” but international money
laundering for a major narcotrafficking ring, and in Nigeria, of rigging an election. If that is not
enough to trigger a “substantial public interest,” then nothing is.
In sum, Tinubu is a criminal. Perhaps he is an uncharged one—that question remains
open—but he is a criminal nonetheless. For the FBI, which investigates criminal wrongdoing, to
put the privacy interests of a known criminal who now runs the government of a country of
hundreds of millions over the public interest of Americans and Nigerians, is perverse. Despite
repeatedly parroting the phrase “unwarranted invasion of personal privacy,” Defendants have no
response to Plaintiff’s assertion that any intrusion into Tinubu’s purported “personal privacy” is
more than “warranted.” Thus, by refusing to explain what would “warrant” such an
“invasion”—if not being elected President by a nation of hundreds of millions—they concede the
issue. Exemptions 6 and 7(C) do not apply to a sitting head of state because being elected to the
highest office in a land, and especially a land with numerous documented connections to the
United States of America and its Government, necessarily warrants additional scrutiny from the
public.
Furthermore, “When the fact of an investigation ‘is already a matter of public record,’ the
target's privacy interest in that information has ‘far less force.’ CREW v. U.S. Dep’t of
Justice, 840 F. Supp. 2d 226, 233, 2012 WL 45499, at *6 (D.D.C. 2012).” Citizens for
Responsibility v. Dept. of Justice, 846 F. Supp. 2d 63, 72 (D.D.C. 2012). Defendants cannot
dispute that the fact of Tinubu’s investigation(s) by multiple federal agencies are already matters
of public record.
E.
The Moss Affidavit Explicitly Acknowledged “Information Provided By
Special Agents of The IRS, DEA, [and] FBI”
Defendants effectively argue that the consecutive words “FBI file” needed to appear in
the Moss Affidavit, but this defies common sense. The details in the Moss Affidavit cover the
same details Plaintiff requested from the FBI. At all times relevant, it was standard practice for
“Special Agents of the…FBI” and “DEA” to record “information” in their agencies’ respective
5
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Filed 11/30/24
Page 8 of 9
files. If a federal agent references “information” provided by another federal agent in writing, as
happened here, then it is reasonable to assume that an associated file storing that information
exists. Defendants have already produced hundreds of pages from FBI File No. 245-IP-71386,
confirming that an FBI file exists associated with the same drug ring that the Moss Affidavit
discusses in detail. It is strange and confounding that in the same brief, Defendants argue that no
such file was ever acknowledged. If not information stored in files at the other agencies
mentioned, what was Kevin Moss talking about when he stated under oath, “I have also
discussed and compared information that I have about the methods used to launder money with
other experienced federal, state and local law enforcement agents.”? Defendants appear to
simply want to wish away with the Moss Affidavit. Especially given the document production
already issued by Defendants, its meaning is clear to any reasonable observer.
F.
Agbele’s Indictment and Entire Criminal Case Should Be Unsealed
Defendants nitpick on whether or not the FBI file mentioning “Agbele” also refers to the
DEA. Whether it does or does not on any given page is immaterial. The FBI has officially
acknowledged Agbele’s involvement; all documents bearing his name must now be unredacted
as the FBI’s Glomar response is moot. The DEA’s is as well; clearly the FBI and DEA worked
together throughout the course of the investigation in which Agbele was involved. We also now
know that Agbele was indicted, yet that indictment is nowhere to be found in PACER. The case,
now more than 30 years old, should be unsealed in its entirety.
III.
CONCLUSION
Defendants’ arguments are without merit and seem to be calculated to waste Plaintiff’s
and the Court’s time. A new administration, hostile to the existence of government itself, is
incoming. The Court should grant summary judgment for Plaintiff with all due haste.
6
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Case 1:23-cv-01816-BAH Document 44 _ Filed 11/30/24 Page9of9
Dated: November 30, 2024
Respectfully submitted,
arr Leanyse~_—
Aaron Greenspan
956 Carolina Street
San Francisco, CA 94107-3337
Phone: +1 415 670 9350
Fax: +1 415 373 3959
E-Mail: aaron.greenspan @ plainsite.org
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