Developments in obtaining an unredacted Mueller Report and underlying documentary evidence

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The nonprofit Electronic Privacy Information Center (EPIC) is litigating Freedom of Information Act (FOIA) cases against the Trump Department of “Injustice” for an unredacted version of the Mueller Report and the underlying supporting documentary evidence.

These cases are separate from the congressional lawsuit seeking the unredacted version of the Mueller Report and the underlying supporting documentary evidence, filed on July 26. House Democrats Sue for Mueller Report’s Grand Jury Material, Casting It as a Major Step Toward Impeachment. “The lawsuit, which was filed by House General Counsel Doug Letter in the U.S. District Court for the District of Columbia seeks all of the materials from the report that the Department of Justice redacted under the federal rules of criminal procedure [Rule 6(e)]. In making the case to obtain the materials, the Democrats note that the information could be key to making a determination on pursuing impeachment.”

The EPIC cases are further along in litigation. A federal judge today rejected a request to fast track a review of Robert Mueller’s underlying records for potential public release. Judge punts on speedy verdict for possible Mueller records release:

U.S. District Court Judge Reggie Walton sided with Justice Department lawyers who were asking him to stick to the normal schedule for Freedom of Information Act cases as he considers a lawsuit seeking a variety of underlying records tied to the now-concluded special counsel investigation.

At issue is a FOIA request filed last November by the nonprofit Electronic Privacy Information Center that asked for a broad range of Mueller materials, including any reports connected to the end of the probe, congressional briefing materials and any referrals the special counsel made outside the criminal justice system.

DOJ on Thursday responded to EPIC by saying that it had found only 17 pages with records responsive to its FOIA request. The pages, DOJ said, were status updates the special counsel had prepared in the course of its investigation. Other than that, DOJ said it had not found anything applicable for release that wasn’t already public.

In court Friday, EPIC lawyer John Davisson questioned the validity of DOJ’s record search, citing as one example Mueller’s late March letter to Attorney General William Barr that confirms the special counsel’s office had summary documents on the investigation ready for public release — meaning they likely also had underlying drafts and other supporting materials.

“We view this as a canary in the coal mine,” Davisson said in a critique of DOJ’s insistence it had no underlying drafts, outlines or other supporting material that were prepared for members of Congress.

Davisson requested that Walton order DOJ to submit a sworn statement backing up its claims that it had conducted a complete search of the Mueller files. But the George W. Bush-appointed judge punted on that question, saying an affidavit would need to be produced once the case advances to a later stage in the legal fight.

For now, Walton signed off on DOJ’s request to take until Sept. 12 to tell EPIC whether it will hand over the 17 pages in total or impose redactions under various exemptions to the FOIA statute. In court Friday, Davisson had asked the judge to speed that step up to take only three weeks.

EPIC’s request for a variety of underlying Mueller materials is tied to a separate case in which the advocacy group is seeking access to the entire special counsel report.

On Monday, however, Judge Walton signaled that he is considering siding with EPIC and its co-plaintiff, BuzzFeed, to release an unredacted version of the Mueller Report. Judge signals interest in removing Mueller report redactions:

During more than two hours of oral arguments in Washington, District Judge Reggie Walton appeared on several occasions to side with attorneys for BuzzFeed and the nonprofit Electronic Privacy Information Center, which are seeking to remove the black bars covering nearly 1,000 items in former special counsel Robert Mueller’s final 448-page final report.

Walton didn’t issue an opinion from the bench on the case, which centers on 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 government’s arguments pressing him to leave the redactions untouched.

“That’s what open government is about,” Walton said during one exchange, citing the resolution of a 2008 sex crimes case against 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 the special counsel didn’t bring charges against the likes of Donald Trump Jr. and Jared Kushner. And in court Monday, their attorneys argued that disclosing these details would help resolve whether the president is right to claim the investigation into Russian interference in the 2016 presidential election was a “witch hunt.”

“It’s something that frankly ripped this country apart,” argued Matt Topic, an attorney for BuzzFeed, regarding the competing and often bitter partisan claims surrounding the credibility of Mueller’s investigation. “The people deserve to know as much as they possibly can.”

While Walton has the power to issue an opinion that goes directly to the BuzzFeed and EPIC lawsuit, he’s also weighing another incremental step the two organizations have requested. Essentially, they asked Walton to review 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 analysis himself. But he also made several comments over the course of the hearing suggesting where he may fall.

For example, Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William 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 during a DOJ news 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 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 FOIA, 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 in his case that centers on lying to Congress, witness tampering and obstructing justice. He is set to stand trial in November.

“Nothing more is required here, your honor,” Enlow 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.

What is “quick” in the courts is not what the average person considers quick. Since DOJ has until September 12 to hand over 17 pages with records responsive to the one FOIA request, it would appear reasonable that some time after that date is most likely the ruling on the unredacted Mueller Report … followed by an appeal.