A federal judge ruled Thursday that some of the Freedom of Information Act exemptions cited by the Justice Department to justify redactions in former special counsel Robert Mueller’s report were improper and ordered the agency to make certain censored sections public before the November election.
Judge Reggie Walton of the U.S. District Court for the District of Columbia, an appointee of former President George W. Bush who has reviewed an unredacted version of Mueller’s 448-page report, issued a lengthy 40-page opinion on Wednesday ruling that most of the redactions were adequately justified but that some were not. This includes redactions on sections about the thought process behind the criminal charging decisions in connection to what Mueller’s team deemed was the Russian military intelligence hack of email systems belonging to former Secretary of State Hillary’s Clinton’s 2016 campaign and the Democratic National Committee. The ruling is the latest decision in a FOIA lawsuit brought by Buzzfeed and the Electronic Privacy Information Center.
Walton said he “concludes that the Department has failed to show that it appropriately withheld information pursuant to Exemption 5” of FOIA. Walton set a status conference for Oct. 22 and ordered the Justice Department to “produce to the plaintiffs an updated redacted version of the Mueller Report, which discloses the information redacted pursuant to Exemption 5, unless such information has been properly withheld pursuant to another exemption” by Nov. 2. Election Day is Nov. 3.
FOIA’s Exemption 5 allows the government to protect “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency,” with the purpose being to protect confidential or privileged information. The Supreme Court held that it allows the government to “exempt those documents, and only those documents, that are normally privileged in the civil discovery context.”
The Justice Department had argued that “the charging decisions not to prosecute … and the identities of the individuals against whom those criminal charges were considered but not pursued, are protected pursuant to the deliberative process privilege” because “information regarding the application of law to specific facts leading up to charging decisions is pre-decisional and deliberative.” But Walton said that the Justice Department “has failed to show in certain instances — and the Court’s review of the unredacted version of the Mueller Report confirms — that the identities of the individuals not charged with having committed crimes is so inextricably intertwined with information that the disclosure of which would reveal Special Counsel Mueller’s deliberations.”
At least some of the FOIA Exemption 5 sections currently redacted within the Mueller report relate to “Russian Hacking and Dumping Operations,” and the decision-making related to charging or not charging a number of people under federal laws related to “Section 1030 — Computer-Intrusion Conspiracy.” One currently redacted section under this FOIA exemption comes after the Mueller report’s discussion of its decision to charge 12 Russian military intelligence officers for the hacking of computer systems tied to Clinton campaign manager John Podesta and the DNC. The redacted section immediately follows the Mueller report’s discussion on the role played by WikiLeaks in the dissemination of thousands of stolen emails during the 2016 presidential election and a summary of Trump associate Roger Stone’s alleged request that conspiracy theorist Jerome Corsi reach out to WikiLeaks founder Julian Assange on Oct. 7, 2016, the day the Access Hollywood tape of President Trump was made public.
Mueller’s report notes that “the investigation did not establish that Corsi actually took those steps, but WikiLeaks did release the first batch of Podesta’s emails later on the afternoon of Oct. 7, within an hour of the publication of the Washington Post’s story on the Trump tape,” just before the blacked-out Exemption 5 section, stating, “Charging Decision as to (b)(5),” which is followed by heavy redactions on four pages.
Exemption 5 redactions also appear in a section following discussion of the now-infamous June 9, 2016, Trump Tower meeting — where Paul Manafort, Jared Kushner, and Donald Trump Jr. met with a number of Russians, including Fusion GPS-linked Russian lawyer Natalia Veselnitskaya — although the redacted section is not necessarily connected to that event. Between four pages of redactions is a mention of “Constitutional Considerations” and, “Finally, the First Amendment could pose constraints on a prosecution.”
Mueller’s report, released in April 2019, said the Russians interfered in 2016 in a “sweeping and systematic fashion,” but it “did not establish that members of the Trump campaign conspired or coordinated with the Russian government.” The special counsel also laid out 10 possible instances of President Trump obstructing justice but did not reach a conclusion. Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein concluded that Trump had not obstructed justice. Barr appointed U.S. Attorney John Durham to conduct an inquiry into the origins and conduct of the Mueller investigation.
Walton has criticized Barr’s handling of the Mueller report and said earlier this year that he had “grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report” and its “impacts on the Justice Department’s subsequent justifications.”
Justice Department spokeswoman Kerri Kupec pushed back against Walton’s claims, calling the court’s assertions “contrary to the facts.”
“The original redactions in the public report were made by Department attorneys, in consultation with senior members of Special Counsel Mueller’s team, prosecutors in the U.S. Attorney’s Offices, and members of the Intelligence Community,” Kupec said. “In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases — a process in which the Attorney General played no role. There is no basis to question the work or good faith of any of these career Department lawyers.”
The Supreme Court agreed to take up in December the battle between the House Judiciary Committee and the Justice Department in which Democrats are seeking access to the redacted portions of Mueller’s report and underlying grand jury materials for the special counsel investigation.
