A federal judge upheld the Justice Department’s redactions in thousands of pages of witness interviews from Robert Mueller’s Russia investigation as part of ongoing litigation for access to information from the special counsel inquiry.
U.S. District Court Judge Reggie Walton, who has critiqued Attorney General William Barr for his handling of the Mueller report in the past, rejected arguments brought by BuzzFeed and CNN, ruling that the Justice Department could continue blacking out sections from FBI interview notes, known as “302s,” from hundreds of Mueller witness interviews. He cited attorney work product privilege and presidential communications privilege exemptions under the Freedom of Information Act. The Justice Department is currently making public roughly 500 pages of witness interviews per month, but they are often heavily redacted.
“Here, the information withheld by the Department from the FD-302s pursuant to Exemption 5 based on the attorney work product privilege falls squarely within the scope of the privilege,” Walton ruled. “The plaintiffs have failed to produce any evidence showing ‘that the [Department] [handling its] FOIA request is engaged in illegal activity’ or ‘unprofessional behavior [on the part of the Department’s lawyers that] [would] vitiate the work product privilege.’ Lacking any such evidence of misconduct on the part of the Department, the plaintiffs’ argument must be rejected.”
The judge noted that the legal team for BuzzFeed and CNN claimed that they “are especially concerned by [the Department’s] pattern of redacting negative information while disclosing to the plaintiffs information favorable or benign to the Trump Administration” and that “selective disclosures of favorable information to a government official is plainly unlawful under [the] FOIA.” But Walton added that “while the plaintiffs’ position is understandable, under the current state of the law, they have failed to provide the Court with sufficient evidence that calls into question the Department’s redactions in this case” and “therefore, the plaintiffs’ argument is not supported by the record or existing law on the subject.”
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. Barr and then-Deputy Attorney General Rod Rosenstein concluded 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.
The Justice Department also argued that it has properly “withheld three types of communications under the presidential communications privilege: (1) communications between government officials or staff during the administration in connection with presidential decision-making; (2) communications between transition officers or staff which concern potential presidential decisions after the inauguration; and (3) communications involving private parties concerning presidential decision-making.” Specifically, the Justice Department said that the only interviews redacted under the presidential communications privilege but not under the attorney work product doctrine are the FBI 302s memorializing the interviews of Rosenstein, former Deputy National Security Advisor K.T. McFarland, and Trump’s former personal attorney Michael Cohen, who is now a convicted felon.
BuzzFeed and CNN claimed “the President himself specifically and publicly waived any executive privilege during the Mueller investigation” and that “the privilege cannot apply because the President has not personally asserted it.” The judge rejected this, saying, “The presidential communications privilege has not been waived and need not be personally asserted by the President to apply. Courts in this district have routinely concluded that it is not required that the President personally invoke the presidential communications privilege for the privilege to apply under Exemption 5 in FOIA cases.”
The media outlets also pointed to an April 2019 tweet from Trump in which he said: “I had the right to end the whole Witch Hunt if I wanted. I could have fired everyone, including Mueller, if I wanted. I chose not to. I had the RIGHT to use Executive Privilege. I didn’t!” The judge rejected this as well.
“They have not provided the context in which the President’s statement was made to suggest that his statement was made in reference to the specific invocation of the presidential communications privilege,” Walton said. “The Court concludes that the President did not waive the presidential communications privilege in regard to the information withheld by the Department … The Department’s representations show that it withheld descriptions of communications that involve the President or his advisers.”
Walton, who has seen the full, unredacted report, said that earlier this year, the court 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.” He added that the department’s redactions of the report were authorized under FOIA.
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 also agreed in July to take up the battle between the House Judiciary Committee and the Justice Department in which Democrats are seeking access to the redacted and underlying grand jury materials from Mueller’s report as part of a possible impeachment inquiry. Those arguments will be heard in the fall, and it’s possible the decision might not be released until after the 2020 election.
