UPDATE, 9:30 p.m.: Judge Reggie Walton has already ordered the DOJ to “confer with the White House in order to advise the Court as to the White House’s official position regarding declassification and release to the public of information related to the Russia investigation.” Walton also ordered the DOJ to file by Oct. 13 a response in opposition to BuzzFeed’s motion, addressing whether President Trump really did waive—by tweeting—the FOIA exemptions that DOJ previously relied on to redact the Mueller Report and FBI 302s.
Could president’s own words come back to bite him by inadvertently making his administration more transparent about the Robert Mueller investigation? BuzzFeed News filed an emergency motion on Thursday asking a federal judge to order the Trump administration to reprocess a Freedom of Information Act (FOIA) request to remove redactions from the Mueller Report and FBI reports of witness interviews (302s) used in Mueller’s probe of Russian election meddling. The filing cited President Donald Trump’s tweets.
BuzzFeed sued the Trump administration last year alleging that the Justice Department had failed to provide documents pertaining to the outlet’s FOIA request for records about the government’s probe into Russia’s efforts to interfere in the 2016 presidential election and potential obstruction of justice by the president.
Following protracted litigation, U.S. District Judge Reggie Walton sided with news organizations in a consolidated lawsuit, finding that the DOJ had violated federal law by redacting certain portions of the Mueller Report. The judge ordered the department to produce the material before November’s presidential election. The same judge also ruled that other discretionary redactions to the documents were permissible under exemptions to the FOIA statute. The same judge, in a related but distinct matter found in September that DOJ lawfully redacted FBI 302 reports.
“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,” Walton said.
But President Trump on Tuesday announced that he had authorized the “total declassification” (i.e., “no redactions”) of “any and all” documents pertaining to the “Russia Hoax.”
“I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!” Trump tweeted.
He followed that minutes later, tweeting: “All Russia Hoax Scandal information was Declassified by me long ago. Unfortunately for our Country, people have acted very slowly, especially since it is perhaps the biggest political crime in the history of our Country. Act!!!”
Now BuzzFeed is seeking to take advantage of this, asking a federal judge to hold the president to his word. BuzzFeed argued that the tweets mean a large cache of the government’s redactions were no longer applicable—including redactions of the Mueller Report.
“As a result, Plaintiffs ask the Court to order the government to reprocess the 302s to remove all redactions or withholdings based on Exemption 1 or any discretionary exemptions like Exemption 5, by October 28, 2020,” the motion stated. “This should be a simple process that requires no independent analysis or consultation beyond simply reviewing which exemptions were asserted and removing the applicable redactions based solely on which exemption claimed.”
A tactic similar to BuzzFeed’s was taken Wednesday by court-appointed amicus curiae John Gleeson in the ongoing litigation over whether the criminal case against Michael Flynn will be dismissed. Gleeson argued that U.S. District Judge Emmet Sullivan should take the president’s comments about the case into account when making a decision about whether or not to grant the Flynn-DOJ joint effort to permanently end the prosecution.
It should be noted, however, that earlier this year U.S. District Judge Amit Mehta, an appointee of President Barack Obama, rejected a request to lift further redactions from 391-pages of the Carter Page FISA warrant application based on Trump’s tweets about declassifying documents. Mehta reasoned that Trump’s tweets “amount to little more than a mere assertion of bad faith,” and do not substantiate “any personal knowledge on the part of the President with respect to the actual withholdings and the exemptions invoked [by the DOJ].”
The DOJ, when arguing on matters of national security, has successfully convinced courts before that the president’s Twitter statements on such matters should not force them to hand over secret documents.
Read the full Buzzfeed motion below:
[image via Samuel Corum/Pool/Getty Images]
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