In anticipation of Attorney General William Barr’s redacted version of the Mueller Report

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In advance of “Attorney General William Barr’s redacted version of the Mueller Report” (the only accurate way for the media to refer to it after they earlier mislead the public by falsely  referring to Barr’s four-page summary letter as the Mueller Report) being released on Thursday, U.S. District Court Judge Reggie Walton said during a hearing Tuesday afternoon that “The attorney general has created an environment that has caused a significant part of the public … to be concerned about whether or not there is full transparency.” Judge: Barr sowing public mistrust with Mueller report handling:

Walton, an appointee of President George W. Bush, did not elaborate on what actions or statements by the attorney general have generated those perceptions.

But despite Walton’s criticism, he denied a request from BuzzFeed to issue a preliminary injunction requiring the Justice Department to … release the portions that must be disclosed under FOIA by Thursday.

Walton previously declined to issue a deadline for the release of a broader set of Mueller-related records in a suit filed by the Electronic Privacy Information Center, a nonprofit privacy-advocacy group.

However, the judge said Tuesday that he plans to “fast track” the issue of the report and what information in it must be disclosed, then deal with other records from Mueller’s probe.

“We’d be dealing separately with the report,” said Walton. He also said he’ll want to consider whether to order the government to give him an unredacted copy of the report so he can assess whether the redactions are proper.

“That’s something we will have to work through. I’ll have to think about it,” he said.

Walton said he hopes any disputes will be limited because the Justice Department makes the bulk of the document public.

“I would hope that the government is as transparent as it can be,” the judge said.

The White House is preparing a propaganda counter-report to discredit the Mueller Report on Thursday which begs the obvious question (from Steve Benen), If the Mueller report exonerates Trump, why write a ‘counter-report’? Indeed.

If all goes according to plan, Attorney General Bill Barr’s office will release a redacted version of Special Counsel Robert Mueller’s findings tomorrow morning, which should shed some additional light on the Russia scandal and Donald Trump’s relation to it.

Soon after, however, we may also see a separate report from the president’s defense attorneys. The Wall Street Journal reported a few days ago:

Lawyers for Mr. Trump have for months been preparing a counter-report. It is now 140 pages long, but lawyers want to whittle it down to about 50, [Trump’s TV lawyer] Rudy Giuliani said in an interview.

Mr. Giuliani said Mr. Trump’s lawyers expect the bulk of their report to focus on the topic of obstruction of justice and plan to scrap most of the material on collusion.

How attorneys could spend months writing a response to a report they have not seen [– or have they, despite Attorney General Barr’s public assurances? –] and up until recently, did not exist – is not at all clear.

BREAKING: The New York Times confirms my suspicion. White House and Justice Dept. Officials Discussed Mueller Report Before Release:

Justice Department officials have had numerous conversations with White House lawyers about the conclusions made by Mr. Mueller, the special counsel, in recent days, according to people with knowledge of the discussions. The talks have aided the president’s legal team as it prepares a rebuttal to the report and strategizes for the coming public war over its findings.

* * *

The discussions between Justice Department officials and White House lawyers have also added to questions about the propriety of the decisions by Attorney General William P. Barr since he received Mr. Mueller’s findings late last month.

Barr has violated the cardinal rule of the Department of Justice: it does not share information about a criminal investigation with the White House when the executive branch is the subject of that criminal investigation. Barr has been briefing Trump’s lawyers to aid them in the preparation of a propaganda rebuttal to the Mueller Report, and thereby undermining the work of his own Department of Justice. This is a miscarriage of the rule of law. This most unethical and unprofessional attorney is Trump’s new fixer, his new Roy Cohn. Expect Barr to follow-up on his assertion of “spying” on the Trump campaign, without evidence, in loyal service to Trump and his conspiracy theory.

Back to Steve Benen:

But even putting that aside, there are two principal areas of concern. First, Giuliani [aka Bat Boy] has struggled for quite a while when describing the length of his purported counter-report.

Last August, Giuliani said he and his team had prepared a counter-report to Muller’s findings that was “quite voluminous.” Giuliani added at the time, “The first half of it is 58 pages, and second half isn’t done yet.” A month later, Giuliani said his counter-report was 45 pages and growing. Over the weekend, it was 140 pages and shrinking. Yesterday, it was “34 or 35” pages.

The former mayor sounds a bit like a student who hasn’t yet started a term paper, but who’s eager to convince his professor the work is nearly complete.

But as amusing as it’s been to watch Giuliani dissemble over the course of several months, there’s an overarching question that Team Trump hasn’t yet addressed: if the Mueller report exonerates the president, why in the world would his lawyers feel the need to release a counter-report at all?

Just three weeks ago, Trump told reporters, in reference to a document he had not read, “The Mueller report was great. It could not have been better.”

A day earlier, the Republican published a tweet in which he said the Mueller report had led to his “total EXONERATION.”

It’s against this backdrop that the president’s legal team is preparing its own document, intended to “counter” Mueller’s findings?

John Dowd, President Donald Trump’s former lawyer, is calling the Mueller report “pure mischief” and “not fair,” believing that it will cause undue problems for the President. Dowd Says Mueller Report (Which He Hasn’t Read) Is ‘Pure Mischief,’ ‘Not Fair’:

“I haven’t read it, but it’s just wholly unnecessary,” he told the Daily Beast. “You just don’t need it. It’s pure mischief.”

“The trouble is, these special counsels inflate themselves, think they’re more important—and they’re not, in the scheme of things, and it ruptures the system of justice and it’s not fair,” he added. “To me, it’s a probe that’s tainted by politics and by hate, and I don’t like it.”

But your client said “The Mueller report was great. It could not have been better” … “total EXONERATION.” Sounds like someone is doing some serious backtracking after Trump’s premature spiking of the ball before he was even in the end-zone.

Former U.S. attorney and deputy assistant attorney general Harry Litman explains If Congress wants the unredacted Mueller report, here’s how to get it:

Many commentators have suggested that Congress’s only mechanism for securing an unredacted report is to launch a formal impeachment inquiry — a blind step forward with great political risks for congressional Democrats and the party overall.

That unpleasant choice looked to be the upshot of the U.S. Court of Appeals for the District of Columbia Circuit’s recent 2-to-1 decision in McKeever v. Barr, which held that the courts lack “inherent power” to order disclosure of grand jury material and instead must hew to the six exceptions describing when such material can be released — exceptions that are delineated in Rule 6(e) of the Federal Rules of Criminal Procedure.

One of those six is disclosure “preliminary to or in connection with a judicial proceeding.” And while it may seem anomalous, several courts have held — and the D.C. Circuit in McKeever expressly affirmed — that “judicial proceeding” within the meaning of the rule encompasses an impeachment inquiry by Congress.

It suggested that the House would be entitled to all the materials — unredacted — only if it first launched a formal impeachment inquiry. And because the Democratic leadership seems loath, for political reasons, to take that step, the prospects for proceeding under that exception — the only known avenue for procuring the unredacted report — looked stalemated.

But that’s not correct. In fact, Congress has immediate recourse to seek the unredacted report pursuant to the ”judicial proceeding” exception, without having to initiate an impeachment inquiry.

I provided a similar analysis based upon the earlier Watergate investigation decision in Haldeman v. Sirica, in The coming legal battle over Congress getting the full Mueller Report and supporting evidence.

How do we know? Well, for starters, we need look no further than the Starr investigation of President Bill Clinton and the succeeding impeachment proceedings in Congress. In September 1998, before the House had initiated an impeachment inquiry, independent counsel Kenneth W. Starr sought and received from federal district court an order to provide to Congress his report, including voluminous grand jury materials. The court’s order granting the request provided expressly that it constituted an order for purposes of the “judicial proceeding” exception in the federal rules.

It was only after digesting Starr’s report, and based upon the report, that the House decided to initiate an impeachment proceeding.

The necessary conclusion of the Starr precedent is that “preliminary to” covers circumstances in which Congress seeks a report to determine in the first place whether to launch impeachment proceedings. It follows that the House needn’t first launch a formal impeachment inquiry to get the unredacted report.

As I concluded in my earlier analysis.

The attorney general and Rep. Douglas A. Collins (Ga.), the ranking Republican on the House Judiciary Committee, have suggested that nearly everything about Starr’s report is irrelevant to current circumstances because Starr was an independent counsel operating under a different statutory scheme than did Mueller. As, of course, he was. But so what? The court’s express holding in response to the Starr motion was that its order applied to Rule 6(e); otherwise put, the transmission of grand jury material was proper because Congress needed it to determine whether to initiate a formal impeachment inquiry. It is difficult to see how Collins, Barr or the Justice Department could make a tenable argument to the contrary.

Indeed, nothing in the independent counsel statute governing Starr’s investigation purported to suspend or override the Federal Rules of Criminal Procedure, and it would be a bizarre statutory scheme that did so. To the contrary, the statute gave the independent counsel the exact same powers with respect to the grand jury as the attorney general or, by implication, regular Justice Department prosecutors.

And there’s a much broader principle in play here. The Justice Department really has no business second-guessing a declaration by Congress, a coordinate branch, that it needs material to consider whether to bring an impeachment, much less to require it to have initiated a formal inquiry in advance. Plainly, as was the case with the Starr report before it, the Mueller report is an indispensable document for Congress to review to decide whether to take a further formal step toward impeachment.

The principle is analogous to the argument the Trump administration successfully made in Trump v. Hawaii — that it was improper to discount its stated reasons for the president’s immigration order, dubious though they might have seemed, in light of the president’s proclamations on the campaign trail.

A wide range of Supreme Court decisions endorses a similar principle of deference to Congress, which after all is a co-equal branch. Accordingly, if Congress offers a good-faith assertion that it needs the Mueller report to discharge its constitutional duty in deciding whether to impeach the president, no more should be needed. The request complies with both the letter of Rule 6(e) and the spirit of the basic constitutional structure.

The House Judiciary Committee should ask the district court for the release, without delay, of the unredacted Mueller report, because it is “preliminary to or in connection with a judicial proceeding” within the meaning of Rule 6(e). Leave it to the Justice Department to argue to the court, and the country, that the legal principles that applied to Starr no longer operate in 2019.

Already, “the House Judiciary Committee is expected to subpoena the Justice Department for special counsel Robert S. Mueller III’s complete report as soon as Friday, according to a spokesman.” Democrats could subpoena Mueller report redactions as soon as Friday:

In a vote of 420 to 0 last month, the House sent an unambiguous message to the attorney general that members of both political parties want to see the complete report.

Judiciary Committee Democrats … are contemplating when and how they might seek to secure a judge’s order to release grand jury materials.

Pro Tip: Congress should move to intervene in the media lawsuit currently in front of U.S. District Court Judge Reggie Walton for a quicker decision. Congress will be allowed to intervene.

Barr has indicated he is not willing to help House Democrats make that case.

Nadler also has indicated that the Judiciary Committee wants to speak to Mueller about the report after the panel interviews Barr on May 2.

It’s only halftime, folks. This game is far from over.

UPDATE: Attorney General William Barr will join with deputy attorney general Rod Rosenstein to spin “Attorney General William Barr’s redacted version of the Mueller Report” when it is released Thursday morning at 9:30 a.m. EST. Barr does not want the “Attorney General William Barr’s redacted version of the Mueller Report” speak for itself, as is DOJ policy.

Barr is trying to get out in front of his summary with a propaganda media narrative in “collusion” with the Trump White House — and no doubt his propaganda machine at Trump TV — before Congress actually receives the report.

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So how did those press conferences by former FBI Director James Comey work out for him?