A federal judge signaled Monday he’s considering removing the Mueller report’s redactions.
During more than two hours of oral arguments in Washington, D.C., U.S. District Court Judge Reggie Walton on several occasions appeared to side with attorneys for BuzzFeed and the non-profit Electronic Privacy Information Center seeking public disclosure of the blacked-out bars covering nearly 1,000 items inside special counsel Robert Mueller’s final 448-page final report.
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Walton didn’t issue an opinion from the bench on the case, which centers around a pair of consolidated lawsuits filed against the Justice Department under the Freedom of Information Act. But the judge, an appointee of President George W. Bush, sounded increasingly skeptical of the arguments from the government pressing him to leave the redactions untouched.
“That’s what open government is about,” Walton said during one exchange, citing the controversial resolution of a 2008 sex crimes case against the financier Jeffrey Epstein as an example of how obfuscating the reasons behind not prosecuting high-profile people generates public distrust in the country’s criminal justice system.
Indeed, EPIC and BuzzFeed filed their lawsuit in order to uncover such information — the redacted explanation of why special counsel didn’t bring charges against the likes of Donald Trump Jr. or Jared Kushner. And in court Monday, their attorneys argued that disclosing these details would help resolve whether the president is right to claim that the investigation into Russian interference in the 2016 presidential election is a “witch hunt.”
“It’s something that frankly ripped this country apart,” argued Mathew Topic, an attorney for Buzzfeed, regarding the competing and often bitterly partisan claims surrounding the credibility of Mueller’s investigation. “The people deserve to know as much as they possibly can.”
Monday’s court arguments represent one of the many ways the Mueller investigation continues to linger even though the special counsel’s office shuttered earlier this spring. House Judiciary Committee Democrats last month asked the chief judge in the D.C.-based district court to issue an order to let them see the underlying materials the special counsel used. The Democrats said they need the information to make a decision about whether to try and impeach the president.
While Walton has the power to issue an opinion that goes directly to the BuzzFeed and EPIC FOIA lawsuit, he’s also weighing another incremental step the two organizations have requested. Essentially, they asked Walton to conduct his own review of the unredacted Mueller report to see if the exemptions the Justice Department is citing to block release of the full document actually line up with what’s allowed under the law.
Several of the judge’s questions appeared designed to understand what he’d get out of doing that kind of in-person analysis himself. But he also made several comments over the course of the hearing suggesting where he’ll fall.
For example, Walton said he had “some concerns” about trying to reconcile public statements that Trump and Attorney General Bill Barr have made about the report with the content of the report itself.
The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia, and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings made during a DOJ press conference — before the public and media could read the document for themselves.
“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.
Separately on Monday, Walton also raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.
“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”
Courtney Enlow, a DOJ trial attorney, defended the Mueller report redactions and insisted they all fall inside the exemptions allowed under the FOIA law, such as the need to keep grand jury information private and protect the government’s investigative methods. The government can also withhold information for national security purposes or to maintain people’s privacy.
Enlow argued that additional disclosures would harm several ongoing investigations Mueller handed off to other federal prosecutors. And she warned that releasing redacted information in the special counsel report could undercut longtime Trump aide Roger Stone’s ability to get a fair trial this November in his case that centers around lying to Congress, witness tampering and obstructing justice.
“Nothing more is required here, your honor,” Enlow said.
Enlow also said Buzzfeed and EPIC lawyers are “speculating” as they seek to highlight potential disclosures that would come should the redactions be removed from the report, which she noted were made with help from Mueller’s team.
“This is not a singular person who was making decisions with redactions,” she said.
At the conclusion of the hearing, Walton acknowledged the likelihood that whatever he does will generate an appeal. “I’ll try to get this done as quickly as I can, so we can have this matter resolved one way or another,” he said.