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Analysis of Shortcomings in the FBI/DOJ May 26, 2026 Filings

I’ve reviewed Judge Mazzant’s March 24, 2026 order and the government’s response, including the Lara, Spence, and Wickman declarations and the revised Vaughn index. Below are the shortcomings I identified, organized by the specific directives in the order.

1. The Order’s Directive on Harm Explanations in the Vaughn Indexes

The court ordered the FBI to file a supplemental affidavit detailing “the absence of detailed explanations in the Vaughn indexes as to how disclosure would harm the interest protected by the claimed statutory exemptions.”

Shortcoming: The government essentially sidesteps this directive. Rather than explaining why detailed harm explanations were absent from the indexes themselves (or supplementing the indexes with that information), it argues that harm explanations belong in the declarations, not the indexes. The Notice states: “the explanation as to how disclosure of information would harm the interest claimed by the statutory exemptions is contained in the declarations rather than in the Vaughn indices.” This reframes the question rather than answering it.

The controlling legal standard the plaintiff cited — Pomares v. Dep’t of Veterans Affs., 113 F.4th 870, 881 (9th Cir. 2024) — requires that a Vaughn index itself “explain how disclosure would harm the interests protected by the statutory exemption.” The harm explanations remain generic and categorical, not tied to individual documents in the index. For example, the Spence Declaration’s blanket assertion that “production of any data of any kind” would interfere with the investigation does not address how disclosing, say, a 2008 PowerPoint about Scott Kleeb’s 2008 Senate campaign or a 2014 medical bill would interfere with a 2016 homicide or hacking investigation.

2. Conclusory Descriptions (“This file contains 1 item”)

The order required the FBI to explain “why multiple records in the Vaughn indexes contain conclusory descriptions such as ‘This file contains 1 item.'”

Shortcoming: The Lara Declaration’s explanation is internally inconsistent and ultimately non-responsive. It claims the phrase reflects a “file-system sense” describing directory structure — i.e., that a parent folder contains one subordinate folder. But:

• This explanation doesn’t help the plaintiff or the court evaluate whether the underlying files (further down the hierarchy) were properly withheld. If “1 item” means a subfolder, then the contents of that subfolder still must be described and accounted for under Vaughn. The declaration never explains where those subordinate files appear in the index or whether they appear at all.
• The explanation suggests these entries describe folder structure, not files — which means they aren’t proper Vaughn entries at all (since Vaughn requires identification of withheld documents, not directory metadata).
• No revised entries were provided to clarify what is actually being withheld at those locations.

3. Categorical Descriptions

The order required the FBI to address “to what extent the FBI believes the produced Vaughn indexes offer sufficiently narrow categorical descriptions.”

Shortcoming: The Lara Declaration explains the FBI’s three general categories (Evidentiary/Investigative, Administrative, Public Source) and asserts only one applies here. But this doesn’t respond to the actual problem the plaintiff identified — that descriptions like “Image of a small black circle with a white arrow pointing down to 6 o’clock,” “Poem,” “Birthday Party Menu,” “Dental Bill,” and “Quiz Feedback” are paired with boilerplate exemptions (6, 7(A), 7(C), 7(E)) without explaining how those exemptions plausibly apply to those particular items. The declaration confuses “narrow category of records” with “narrow description of each record’s content and connection to claimed exemptions” — which is what Vaughn requires.

4. Metadata on the Work Laptop

The order required a supplemental Vaughn index identifying (a) total number of files, (b) total storage used, and (c) whether and how many files were downloaded to external storage devices.

Shortcomings:

(a) and (b) — Partially answered, but raises new questions. The Lara Declaration provides 217,974 items totaling 474 GB. This is a dramatic departure from the original Vaughn index, which accounted for only about 2,094 records. The government does not explain the discrepancy — i.e., what happened to the other ~215,000 files, how many were “system files” excluded as non-reviewable, and how many were substantive user files that should have appeared in the index. Apelbaum’s prior point — that the original index was missing the vast majority of files — appears confirmed but unaddressed.

(c) — Non-answer dressed as compliance. The Wickman Declaration says operating systems don’t natively log file transfers, so the FBI cannot definitively determine whether files were copied to external storage. But:

• The court’s order didn’t ask whether OS-level transfer logs exist. It asked the FBI to investigate and report. Wickman essentially says forensic analysis “would require extensive time and effort and would likely be inconclusive” — which is not the same as saying it’s impossible.
• Wickman concedes that USB artifacts (USBSTOR registry keys, setup API logs, event logs) “may indicate a device was connected and the approximate timeframe.” He dismisses these as “not useful in this instance because we do not have an identified external device that was connected.” But the very point of examining these artifacts would be to identify whether any external device was ever connected. The declaration appears to assume the answer before doing the work.
• Wickman invokes the “FOIA does not require creation of new records” doctrine, but this conflates two things: producing the answer to the court’s question (which the court ordered) versus producing the underlying artifacts as FOIA records. The court ordered the FBI to investigate and report; it did not limit that to records already in producible form.
• The FAT-files issue raised by Apelbaum in his May 9, 2025 declaration — that FAT artifacts on flash drives would be the key evidence — is not directly addressed. Wickman discusses the work laptop in isolation but doesn’t engage with the question of whether the FBI ever attempted to analyze the laptop for thumb-drive connection artifacts specifically.

5. Corrupted/Unreadable Files and Measures Taken

The order required the FBI to address “what measures, if any, the FBI took to ‘open,’ view, or otherwise restore any allegedly corrupted or unreadable files.”

Shortcomings:

• The Spence Declaration says only that files were opened in their native applications (e.g., Word files in Microsoft Word) using Magnet Forensics, and if an error message appeared, the file was noted as “File corrupted/would not open.” That’s the entire description of “measures taken.” No file-recovery tools were used. No hex inspection. No attempt to use any of the industry-standard forensic recovery tools that Apelbaum identified (Sleuth Kit, EnCase, FTK, X-Ways, R-Studio, WinHex). The “measures taken” amount to: try to open the file once, and if it fails, mark it corrupted.
• Wickman’s declaration acknowledges that “some minor corruption can be repaired with recovery tools” but argues a repaired file would be a “new record.” This is a legal argument about FOIA’s scope, not a description of measures taken. It also doesn’t address Apelbaum’s point that the FBI could simply produce the corrupted files in their original format if it didn’t want to repair them.
• There’s no explanation of why the FBI used Microsoft Notepad to attempt to open files (as referenced in the original work laptop index), when Notepad is plainly inappropriate for non-text file formats.
• No personnel hours, qualifications, or detailed methodology are disclosed, despite Apelbaum specifically flagging this gap in his May 9, 2025 declaration.

6. Items the Order Required But Were Not Adequately Addressed

Filename redactions: The plaintiff’s reply emphasized that every single filename on the personal laptop index was redacted without any explanation of which exemption applies to filenames specifically (which are metadata, distinct from file contents). The revised Vaughn index does not appear to remedy this. The supplemental affidavits do not address why filenames — which generally cannot themselves contain investigative material — were categorically withheld.

The work laptop search itself: The plaintiff repeatedly asked whether the FBI searched the actual physical work laptop or only the image disk prepared by an “outside entity” (presumably Crowdstrike on behalf of the DNC/Perkins Coie). Wickman’s declaration confirms the FBI worked from a “forensic image” — an E01 file — but does not clarify whether that image was created by the FBI or received from the outside entity. This was a specific concern in the contempt motion that remains unanswered.

Privacy exemptions for Seth Rich: The order didn’t directly require this, but the government’s continued global assertion of personal privacy exemptions for a decedent (over the court’s prior rejection in Dkt. #70) is reasserted in the Lara Declaration on the stated grounds of “preserving the issue for appeal.” As the plaintiff previously noted, that is not a valid reason to defy a standing order; the time for interlocutory appeal has passed, and the proper vehicle would have been mandamus.

7. Internal Inconsistencies and Credibility Issues

• Spence Declaration ¶ 8 repeats verbatim the same claim from the earlier round of declarations — that operating system files, ReFS, NTFS, and FAT files “cannot be viewed or processed pursuant to the FOIA.” Apelbaum thoroughly refuted this in his May 9, 2025 declaration with a list of industry-standard tools. The new declaration does not respond to that rebuttal; it simply repeats the original assertion.
• The Lara Declaration introduces a new exemption category — CISA/Exemption 3 — that was not asserted in the original Vaughn indexes. This appears to be a post-hoc addition to bolster withholding, which raises the question whether exemptions are being added as the litigation progresses rather than being identified during the original document-by-document review.
• The DNC is now identified as the source of an implied confidentiality agreement (Exemption 7(D)) and as a commercial entity whose interests are protected (Exemption 4). Neither was previously asserted with specificity. The plaintiff is likely to question whether the DNC genuinely received an “express or implied assurance of confidentiality” when the laptop was provided in connection with a criminal investigation that has been the subject of years of public commentary.

8. Discrepancy Between File Count and Index Entries

This is perhaps the most significant unresolved issue. The Lara Declaration now states the work laptop contains 217,974 items totaling 474 GB. The original work laptop Vaughn index accounted for roughly 2,094 records. Even accounting for system files, that’s a gap of more than 215,000 items. The government’s position appears to be that all system files are non-reviewable and not subject to FOIA — but no breakdown is provided showing how many of the ~215,000 missing items are truly system files versus user files. Without that accounting, it is impossible to verify whether the document-by-document review the court ordered was actually performed on all responsive files.

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These shortcomings, taken together, support the plaintiff’s likely argument that the government’s response — while more detailed than the original indexes — still falls short of the court’s directives and continues a pattern of providing narrow technical compliance rather than substantive responses to the issues identified in the March 24, 2026 order.