Below is the meat of the 23-page ruling from Walton, who was appointed by George W. Bush, with annotations and analysis in yellow.
The Court has 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 Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA. For the reasons set forth below, the Court shares the plaintiffs’ concern that the Department “dubious[ly] handl[ed] [ ] the public release of the Mueller Report.” EPIC’s Mem. at 40; see also id. (“Attorney General [Barr’s] attempts to spin the findings and conclusions of the [Mueller] Report have been challenged publicly by the author of the [Mueller] Report. [ ] Attorney General [Barr’s] characterization of the [Mueller] [R]eport has also been contradicted directly by the content of the [Mueller] Report.”); Leopold Pls.’ Mem. at 9 (“[T]here have been serious and specific accusations by other government officials about improprieties in the [Department’s] handling and characterization of the [Mueller] Report[.]”). Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Mueller Report to assess de novo the applicability of the particular exemptions claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA.
On March 24, 2019, only two days after receiving the 381-page Mueller Report, Attorney General Barr represented that he was providing “a summary of [the Mueller Report’s] ‘principal conclusions.’” Def.’s Mot., Ex. 6 (March 29, 2019 Letter) at 2. In his March 24, 2019 letter, Attorney General Barr stated that “Special Counsel [Mueller’s] investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 [United States] presidential election,” id., Ex. 5 (March 24, 2019 Letter) at 2, and that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice in connection with Special Counsel Mueller’s investigation into Russia’s interference in the 2016 presidential election, Special Counsel Mueller “recognized that ‘the evidence does not establish that [ ] President [Trump] was involved in an underlying crime related to Russian election interference,’” id., Ex. 5 (March 24, 2019 Letter) at 3. However, Special Counsel Mueller himself took exception to Attorney General Barr’s March 24, 2019 letter, stating that Attorney General Barr “did not fully capture the context, nature, and substance of th[e] [Special Counsel’s] Office’s work and conclusions,” EPIC’s Mot., Ex. 4 (March 27, 2019 Letter) at 1, and a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report. Specifically, Attorney General Barr’s summary failed to indicate that Special Counsel Mueller “identified multiple contacts—‘links,’ in the words of the Appointment Order—between Trump [c]ampaign officials and individuals with ties to the Russian government,” Def.’s Mot., Ex. D (Mueller Report – Volume I) at 66, and that Special Counsel Mueller only concluded that the investigation did not establish that “these contacts involved or resulted in coordination or a conspiracy with the Trump [c]ampaign and Russia, including with respect to Russia providing assistance to the [Trump] [c]ampaign in exchange for any sort of favorable treatment in the future,” because coordination—the term that appears in the Appointment Order—“does not have a settled definition in federal criminal law,” id., Ex. D (Mueller Report – Volume I) at 2, 66. Attorney General Barr also failed to disclose to the American public that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice, Special Counsel Mueller “determined not to make a traditional prosecutorial judgment[,] . . . recogniz[ing] that a federal criminal accusation against a sitting [p]resident would place burdens on the [p]resident’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” but nevertheless declared that
if [he] had confidence after a thorough investigation of the facts that [ ] President [Trump] clearly did not commit obstruction of justice, [he] would so state. Based on the facts and the applicable legal standards, however, [he] [is] unable to reach that judgment. The evidence [he] obtained about [ ] President [Trump’s] actions and intent presents difficult issues that prevent [him] from conclusively determining that no criminal conduct occurred. Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President [Trump] committed a crime, it also does not exonerate him.
Id., Ex. D (Mueller Report – Volume II) at 1–2.
Although Attorney General Barr can be commended for his effort to expeditiously release a summary of Special Counsel Mueller’s principal conclusions in the public interest, the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.
Attorney General Barr’s decision to not only conduct a press conference but also issue his April 18, 2019 letter immediately prior to releasing the redacted version of the Mueller Report to the public on April 18, 2019, also causes the Court concern. During his press conference, Attorney General Barr maintained that Special Counsel Mueller’s “investigation did not establish that members of the Trump [c]ampaign conspired or coordinated with the Russian government in its election interference activities,” and that “President [Trump] took no act that in fact deprived [ ] Special Counsel [Mueller] of the documents and witnesses necessary to complete his investigation,” and declared that
[i]n assessing [ ] President [Trump’s] actions discussed in the [Mueller] [R]eport, it is important to bear in mind the context. President Trump faced an unprecedented situation. As he entered into office, and sought to perform his responsibilities as [p]resident, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about [ ] President [Trump’s] personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the [Mueller] [R]eport acknowledges, there is substantial evidence to show that [ ] President [Trump] was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. Nonetheless, the White House fully cooperated with [ ] Special Counsel [Mueller’s] investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, [ ] President [Trump] took no act that in fact deprived [ ] Special Counsel [Mueller] of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that [ ] President [Trump] had a corrupt intent to obstruct the investigation.
Attorney General William P. Barr Delivers Remarks on the Release of the Report on the Investigation into Russian Interference in the 2016 Presidential Election, U.S. Dep’t of Justice, https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-release-report-investigation-russian, (last visited Mar. 5, 2020). Similar statements were made in his April 18, 2019 letter. See Def.’s Mot., Ex. 7 (April 18, 2019 Letter) at 1–3 (stating that Special Counsel Mueller’s “bottom-line conclusion on the question of so-called ‘collusion’ [was] [that] [t]he investigation did not establish that members of the Trump [c]ampaign conspired or coordinated with the Russian government in its election interference activities” and that “the evidence set forth in the [ ] [Mueller] [R]eport was [not] sufficient to establish that [ ] President [Trump] committed an obstruction-of-justice offense”).
As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.
These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. Brinkmann Decl. ¶ 11 (emphasis added). In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations. And, despite the Department’s representation that it “review[ed] the full unredacted [Mueller] Report for disclosure pursuant to the FOIA,” Brinkmann Decl. ¶ 11, the Court cannot ignore that the Department’s withholdings under the FOIA exemptions mirror the redactions made pursuant to Attorney General Barr’s guidance, which cause the Court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the Department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.
Despite what the Court has just outlined, the Department nonetheless claims that the plaintiffs’ assertions of bad faith are merely speculative and “do not show that ‘information contained in [the Department’s declaration] is contradicted by other evidence in the record.” Def.’s Reply at 53–54. However, “[i]n camera inspection does not depend on a finding or even tentative finding of bad faith,” but rather, “[a] judge has discretion to order [i]n camera inspection on the basis of an uneasiness, on a doubt that he wants satisfied before he takes responsibility for a de novo determination.” Ray, 587 F.2d at 1196. In fact, this is precisely the type of situation that Congress envisioned when it enacted the FOIA in 1966—“to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,” U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks omitted), and to provide “a means for citizens to know what their [g]overnment is up to,” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (internal quotation marks omitted). As this Circuit has noted, “Congress was all too aware of the [i]nnumerable times that agencies had withheld information under prior law only to cover up embarrassing mistakes or irregularities[,] [and the] FOIA was designed to prevent such incidents[.]” Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 264 (D.C. Cir. 1982) (first alteration in original) (internal quotation marks omitted). The FOIA’s policy of broad disclosure of government documents not only “give[s] citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions,” McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1108–09 (D.C. Cir. 1983); see also Favish, 541 U.S. at 171–72 (“This phrase should not be dismissed as a convenient formalism[;] [i]t defines a structural necessity in a real democracy.”); Wash. Post Co., 690 F.2d at 264 (“[T]he purpose of [the] FOIA is to permit the public to decide for itself whether government action is proper.”), but also “ensure[s] an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed,” Nat’l Labor Relations Bd., 437 U.S. at 242; see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J., dissenting) (characterizing the philosophy of the FOIA as “[t]he generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to”).
Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification. Adherence to the FOIA’s objective of keeping the American public informed of what its government is up to demands nothing less. Accordingly, the Court will conduct an independent review of the unredacted version of the Mueller Report to determine whether it concurs with the Department’s determination that the redactions of the Mueller Report are authorized by the FOIA exemptions upon which the Department relies.