A federal judge said Thursday that Attorney General Bill Barr’s “lack of candor” about special counsel Robert Mueller’s findings — in representations of Mueller’s report that “distorted” its conclusions — had prompted the judge to decide to review an unredacted version of the report behind closed doors.
The decision by U.S. District Judge Reggie B. Walton came in a Freedom of Information Act lawsuit brought by a Buzzfeed reporter and the Electronic Privacy Information Center, a civil liberties group. They’re seeking an unredacted version of Mueller’s report, and have pointed to Barr’s misleading statements about the report before it was released to raised doubts about what the Department had decided to redact.
Judge Walton said on Thursday that he agreed with the challengers’ assessment that the Department “dubious[ly] handl[ed] … the public release of the Mueller Report” and the judge said he had “grave concerns about the objectivity” of that process.
He raised specifically how Barr — in a letter nearly a month before the report was released as well as in a press conference the morning it was unveiled — described Mueller’s findings on whether the Trump campaign colluded with or coordinated with Russians in 2016. He also took issue with how Barr characterized the way Mueller went about the obstruction of justice aspect of his investigation.
“The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary,” the judge said.
He also focused on Barr’s decision to issue the March 2019 summary letter weeks before the report itself was to be put out.
“The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report — a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report,” he said.
The judge has ordered the Department to produce for him an unredacted version of the report en camera, meaning not publicly, for him to review behind the closed doors of his chambers.
The court will conduct this “independent review” so it can “determine whether it concurs with the Department’s determination that the redactions of the Mueller Report are authorized by the FOIA exemptions upon which the Department relies,” the judge said.
Emptywheel says that this will not likely blow the lid off the story:
There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.
Where this ruling may matter, though, is in four areas:
- DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
- DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
- Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
- In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.
It sounds as though this is just a first step. But it’s excellent that the press is still pressing on this and the court is responding. We should never, ever let this go. What Trump did was one of the worst national security assaults in history. And it’s continuing to this day.