A federal judge in Washington, D.C., on Monday pressed Department of Justice (DOJ) lawyers on why the public shouldn’t be allowed to see redacted portions of former special counsel Robert Mueller’s report, suggesting that he may be willing to consider releasing at least some of the restricted document.
Judge Reggie Walton, an appointee of former President George W. Bush, posed the questions during a hearing on a pair of Freedom of Information Act (FOIA) lawsuits seeking the redacted portions of the report.
The Electronic Privacy Information Center (EPIC) and BuzzFeed News reporter Jason Leopold filed the lawsuits earlier this year. The cases have since been consolidated, and attorneys for each party split the arguments during Monday’s hearing.{mosads}
Walton in particular raised concerns about Attorney General William Barr’s initial handling of Mueller’s report, indicating that he believed there were discrepancies in how Barr characterized the report and the former special counsel’s actual findings.
“I do have some concerns because it seems to me difficult to reconcile the contents of the Mueller report and statements made by the attorney general” about the report, Walton said.
The judge pointed to a letter authored by Barr weeks ahead of the report’s release that said Mueller determined there was no collusion between the Trump campaign and Russia in the 2016 election and Barr’s suggestion that the president was cleared by the report.
Mueller has since stated that his office did not investigate collusion but instead whether any Trump campaign officials conspired with Russians in 2016. And the former special counsel has repeatedly stated that his report does not exonerate President Trump.
DOJ lawyer Courtney Enlow pushed back, saying that Barr was not required to release the report at all under the special counsel regulations but did so anyway. She said the attorney general’s actions were in “good faith.”
But EPIC attorney Alan Butler raised concerns over the timeline of the redactions. The DOJ released a second redacted version of the Mueller report in response to the FOIA lawsuits weeks after the initial report. But Butler noted that the exemptions in the FOIA version of the report were effectively the same as the redactions made in the originally released version of Mueller’s report.
Judge Walton raised that prospect to Enlow, suggesting that the DOJ officials tasked with making the FOIA exemptions could have been following directions from higher-ups. He cited his own time working in the DOJ, saying that sometimes “the body does what the head wants.”
Enlow said that Barr worked with members of the special counsel’s office to make the redactions and that the information withheld under FOIA in that version of the report was in line with FOIA exemptions.
Attorneys for those seeking the unredacted portions of the report pressed Walton to request that the disputed redactions be given to him privately so that he could review them and determine if any of the information was already publicly available and no longer needed to redacted.
Enlow argued that rulings in previous FOIA cases mean that the administration doesn’t necessarily have to make that information publicly available.
However, Walton appeared skeptical. At several times throughout the hearing, he noted the high level of public interest in the redacted versions of the documents.
Mathew Topic, who was arguing on behalf of Leopold in court, also noted that releasing more details of the report could help resolve disputes about the origins of the Mueller investigation.
Topic pointed to Trump repeatedly referring to the probe as a politically motivated “witch hunt” and said that making the investigators’ findings fully available could help affirm or disprove those claims.
And the lawyer said that providing a fuller reasoning for why certain figures such as Donald Trump Jr. were not charged or even brought before a grand jury would further clarify the intent and actions of prosecutors working under Mueller.
“That information has strong public interest in multiple ways,” Topic said of the details redacted because of privacy interests.
Enlow countered by saying Americans contacted by Russians during the 2016 election could be thrust into the public spotlight if that information was released and that being publicly tied to the investigation “places stigma on that person.”
Among the redacted information in the report being sought in these cases is grand jury information. The House Judiciary Committee, led by Chairman Jerrold Nadler (D-N.Y.), also filed an application in court last week seeking the grand jury materials.
But Enlow, in arguing that Walton should not make the information public, cited an opinion from the D.C. Circuit Court of Appeals handed down earlier this year that found a court doesn’t have the inherent authority to release grand jury materials.
And she said that a suggestion from Tropic that an FOIA exemption made in relation to grand jury materials appeared related to Trump’s questioning in the probe as “baseless” speculation.
Topic had questioned why information appearing to relate to Trump’s questioning was redacted under the grand jury provision, when the president never appeared before a grand jury.
Walton did not provide a timeline as to when he might issue a decision, saying that he is facing a “heavy” caseload at the moment.
But he noted the high level of public interest in the case — and the inevitable prospect that whatever ruling he issues will be appealed — in saying he will work to make a decision soon.