Courts

Judge Walton: When It Comes To Bill Barr, Trust But Verify

Is ‘lack of candor’ a good thing? Asking for an Attorney General.

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(Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

Has there ever been an Attorney General who so thoroughly trashed his own reputation for truthfulness and candor that a federal judge deemed the Justice Department’s representations to the court presumptively unreliable? Has a member of the federal bench ever held that “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” he simply cannot take the DOJ’s word for it? And will Bill Barr feel even the mildest pang of concern that the has brought the Department to this sorry state?

Haha, that last one was a joke. Bill Barr isn’t the least bit concerned about breaking the DOJ as long as he keeps getting those judges confirmed. Haven’t you heard, everyone dies? But if you were looking for a sign that the frog is well and truly boiled, well, this is it.

BuzzFeed’s FOIA warrior Jason Leopold sued the Justice Department for access to an unredacted copy of the Mueller Report, which the DOJ insists must remain black-Barred … errr, black-barred, to protect legitimate government interest.

But yesterday, U.S. District Judge Reggie Walton, said that Leopold had met the standard for judicial review of the redactions by proving “tangible evidence of bad faith,” and ordered the Department to hand over an unredacted copy for in camera review by March 30. The opinion was BRUTAL.

Noting that Barr’s pre-publication statements about the report seemed deliberately crafted to give the public a false impression, Judge Walton expressed “grave concerns about the objectivity of the process” of redacting Mueller’s findings.

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.

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Because of “Attorney General Barr’s lack of candor,” the court cannot simply accept that the Department’s redactions are made in good faith.

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. 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. [Citations omitted.]

Judge Walton, a George W. Bush appointee (not that it should matter), just called the Attorney General a liar. And, not for nothing, but the Department just spent the last two years trying, without success, to LOCK HER UP former FBI Director Andy McCabe for “lack of candor.” So there’s that.

In summing up his decision, Judge Walton concluded that the American public would never be able to trust a decision which rested on the mere word of the executive branch. Public trust, therefore, demands judicial review of the evidence.

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.

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That’s a stinging indictment of the top law enforcement officer in the country.

EPIC and Jason Leopold v. DOJ [(March 5, 2020, D.D.C.) Case 1:19-cv-00810-RBW]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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