Electronic Privacy Information Center v. United States Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
ELECTRONIC PRIVACY INFORMATION )
CENTER, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-810 (RBW)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
)
Defendant. )
_______________________________________)
)
JASON LEOPOLD & )
BUZZFEED, INC., )
)
Plaintiffs, )
)
v. ) Civil Action No. 19-957 (RBW)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, et al., )
)
Defendants. )
_______________________________________)
MEMORANDUM OPINION
The above-captioned matters concern requests made by the Electronic Privacy
Information Center (“EPIC”) and Jason Leopold and Buzzfeed, Inc. (the “Leopold plaintiffs”)
(collectively, the “plaintiffs”) to the United States Department of Justice (the “Department”)
pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2018), seeking, inter alia,
the release of an unredacted version of the report prepared by Special Counsel Robert S. Mueller
III (“Special Counsel Mueller”) regarding his investigation into Russian interference in the 2016
United States presidential election (the “Mueller Report”). See Complaint ¶¶ 2, 43, Elec.
Privacy Info. Ctr. v. U.S. Dep’t of Justice, Civ. Action No. 19-810 (“EPIC Compl.”); Complaint
¶ 1, Leopold v. U.S. Dep’t of Justice, Civ. Action No. 19-957 (“Leopold Pls.’ Compl.”).
Currently pending before the Court are (1) the Department of Justice’s Motion for Summary
Judgment in Leopold v. Department of Justice and Partial Summary Judgment in Electronic
Privacy Information Center v. Department of Justice (“Def.’s Mot.” or the “Department’s
motion”); (2) the Plaintiff’s Combined Opposition to Defendant’s Motion for Partial Summary
Judgment, Cross-Motion for Partial Summary Judgment, and Motion for In Camera Review of
the “Mueller Report” (“EPIC’s Mot.” or “EPIC’s motion”); and (3) Plaintiffs Jason Leopold’s
and Buzzfeed Inc.’s Motion for Summary Judgment (“Leopold Pls.’ Mot.” or the “Leopold
plaintiffs’ motion”). Upon careful consideration of the parties’ submissions, 1 the Court
concludes for the following reasons that it must deny without prejudice the Department’s motion,
grant in part and deny without prejudice in part EPIC’s motion, and grant in part and deny
without prejudice in part the Leopold plaintiffs’ motion.
I. BACKGROUND
A. Factual Background
On May 17, 2017, “to ensure a full and thorough investigation of the Russian
government’s efforts to interfere in the 2016 presidential election,” then-Acting Attorney
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Memorandum of Points and Authorities in Support of the Department of Justice’s Motion for
Summary Judgment in Leopold v. Department of Justice and Partial Summary Judgment in Electronic Privacy
Information Center v. Department of Justice (“Def.’s Mem.”); (2) the Declaration of Vanessa R. Brinkmann
(“Brinkmann Decl.”); (3) the Memorandum of Points and Authorities in Support of Plaintiff’s Combined Opposition
and Cross-Motion for Partial Summary Judgment and Motion for In Camera Review of the “Mueller Report”
(“EPIC’s Mem.”); (4) Plaintiffs Jason Leopold’s and Buzzfeed Inc.’s Combined Memorandum in Support of Their
Motion for Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment (“Leopold Pls.’
Mem.”); (5) the Brief of Citizens for Responsibility and Ethics in Washington as Amicus Curiae in Support of
Plaintiffs’ Motions for Summary Judgment (“CREW Br.”); (6) the Department of Justice’s Reply in Support of its
Motion for Summary Judgment with Respect to the “Mueller Report” and Opposition to the Plaintiffs’ Cross-
Motions for Summary Judgment (“Def.’s Reply”); and (7) the Plaintiffs’ Consolidated Reply in Support of Their
Cross-Motions for Summary Judgment and Motions for In Camera Review of the “Mueller Report” (“Pls.’ Reply”).
2
General Rod J. Rosenstein appointed Special Counsel Mueller to investigate “any links and/or
coordination between the Russian government and individuals associated with the campaign of
President Donald Trump” (the “Trump campaign”). Def.’s Mot., Exhibit (“Ex.”) 3 (Order No.
3915-2017 – Appointment of Special Counsel to Investigate Russian Interference with the 2016
Presidential Election and Related Matters (“Appointment Order”)).
In March 2019, Special Counsel Mueller concluded his investigation into Russian
interference in the 2016 United States presidential election, and on Friday, March 22, 2019, he
provided Attorney General William P. Barr (“Attorney General Barr”) with the Mueller Report.
See Def.’s Mot., Ex. 4 (Letter from William P. Barr, Attorney General, to Lindsey Graham,
Chairman, Committee on the Judiciary, United States Senate, et al. (Mar. 22, 2019) (“March 22,
2019 Letter”)). On that same day, Attorney General Barr advised members of the United States
Congress by letter that he was “reviewing the [Mueller] [R]eport and anticipate[d] that [he] may
be in a position to advise [the members of Congress] of [ ] Special Counsel[] [Mueller’s]
principal conclusions as soon as th[at] weekend.” Id., Ex. 4 (March 22, 2019 Letter). Attorney
General Barr “disclose[d] [the March 22, 2019] letter to the public after delivering it to
[members of Congress].” Id., Ex. 4 (March 22, 2019 Letter).
On Sunday, March 24, 2019, Attorney General Barr supplemented his March 22, 2019
letter to Congress, “advis[ing] [certain members of Congress] of the principal conclusions
reached by Special Counsel [Mueller].” Id., Ex. 5 (Letter from William P. Barr, Attorney
General, to Lindsey Graham, Chairman, Committee on the Judiciary, United States Senate, et al.
(Mar. 24, 2019) (“March 24, 2019 Letter”)) at 1. However, neither an unredacted or a redacted
version of the Mueller Report accompanied Attorney General Barr’s March 24, 2019 letter for
congressional or public consumption. According to Attorney General Barr, “Special Counsel[]
3
[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; see also id., Ex. 5 (March 24,
2019 Letter) at 2 (“As noted above, [ ] Special Counsel [Mueller] did not find that any [United
States] person or Trump campaign official or associate conspired or knowingly coordinated with
the [Internet Research Agency] in its efforts[.]”); id., Ex. 5 (March 24, 2019 Letter) at 2 (“But as
noted above, [ ] Special Counsel [Mueller] did not find that the Trump campaign, or anyone
associated with it, conspired or coordinated with the Russian government in these efforts, despite
multiple offers from Russian-affiliated individuals to assist the Trump campaign.”).
Furthermore, Attorney General Barr represented 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 “determined not to make a traditional prosecutorial judgment” and “did
not draw a conclusion—one way or the other—as to whether the examined conduct constituted
obstruction,” thereby leaving “it to [ ] Attorney General [Barr] to determine whether the conduct
described in the [Mueller] [R]eport constitutes a crime.” Id., Ex. 5 (March 24, 2019 Letter) at 3.
Noting that Special Counsel Mueller “recognized that ‘the evidence does not establish that [ ]
President [Trump] was involved in an underlying crime related to Russian election
interference,’” Attorney General Barr ultimately determined that “the evidence developed during
[ ] Special Counsel[] [Mueller’s] investigation is not sufficient to establish that [ ] President
[Trump] committed an obstruction-of-justice offense,” and that, “while not determinative, the
absence of such evidence bears upon [ ] President[] [Trump’s] intent with respect to
obstruction.” Id., Ex. 5 (March 24, 2019 Letter) at 3. According to Attorney General Barr, “the
4
[Mueller] [R]eport identifies no actions that, in [his] judgment, constitute obstructive conduct,
had a nexus to a pending or contemplated proceeding, and were done with corrupt intent[.]” Id.,
Ex. 5 (March 24, 2019 Letter) at 3.
Attorney General Barr also indicated in his March 24, 2019 letter that he intended to
“move forward expeditiously in determining what [information in the Mueller Report] can be
released in light of applicable law, regulations, and Departmental policies.” Id., Ex. 5 (March
24, 2019 Letter) at 4.
On March 27, 2019, Special Counsel Mueller stated in a letter to Attorney General Barr
that the representations made by Attorney General Barr in his March 24, 2019 letter “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 (Letter from Robert S. Mueller III, Special Counsel, to
William P. Barr, Attorney General (Mar. 27, 2019) (“March 27, 2019 Letter”)) at 1. And,
according to Special Counsel Mueller, as a result of Attorney General Barr’s March 24, 2019
letter, “[t]here [was] now public confusion about critical aspects of the results of [his]
investigation,” which Special Counsel Mueller noted “threaten[ed] to undermine a central
purpose for which the Department appointed [ ] Special Counsel [Mueller]: to assure full public
confidence in the outcome of the investigations.” Id., Ex. 4 (March 27, 2019 Letter) at 1.
On March 29, 2019, Attorney General Barr, in a letter addressed to members of
Congress, represented that “some media reports and other public statements mischaracter[ed]
[his] March 24, 2019 [letter] [ ] as a ‘summary’ of [ ] Special Counsel[] [Mueller’s] investigation
and [the Mueller] [R]eport,” and that his “March 24[, 2019] letter was not, and did not purport to
be, an exhaustive recounting of [ ] Special Counsel[] [Mueller’s] investigation or [the Mueller]
[R]eport.” Def.’s Mot., Ex. 6 (Letter from William P. Barr, Attorney General, to Lindsey
5
Graham, Chairman, Committee on the Judiciary, United States Senate, et al. (Mar. 29, 2019)
(“March 29, 2019 Letter”)) at 1–2. Attorney General Barr stated:
As my [March 24, 2019] letter made clear, my notification to Congress and the
pubic provided, pending release of the [Mueller] [R]eport, a summary of its
“principal conclusions”—that is, its bottom line. . . . Everyone will soon be able
to read it on their own. I do not believe it would be in the public’s interest for me
to attempt to summarize the full report or to release it in serial or piecemeal
fashion.
Id., Ex. 6 (March 29, 2019 Letter) at 2.
On April 18, 2019, prior to making the redacted version of the Mueller Report available
to Congress, the public, or the media, Attorney General Barr held a press conference during
which he “offer[ed] a few comments [ ] on the [Mueller] [R]eport.” 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). 2 Attorney General Barr stated during the
press conference that the Mueller Report indicates 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.” Id.; see also id. (“[T]hanks to [ ]
Special Counsel[] [Mueller’s] thorough investigation, we now know that the Russian operatives
who perpetrated these schemes did not have the cooperation of President Trump or the Trump
campaign—or the knowing assistance of any other Americans for that matter.”); id. (“Special
Counsel [Mueller] found no evidence that any Americans—including anyone associated with the
2
The Court takes judicial notice of information posted on the Department’s official public website. See Pharm.
Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (“Courts in
this jurisdiction have frequently taken judicial notice of information posted on official public websites of
government agencies.”); see also Fed. R. Evid. 201(d) (providing that a “court may take judicial notice at any stage
of the proceeding”).
6
Trump campaign—conspired or coordinated with the Russian government . . . in carrying out
this illegal scheme.”); id. (Attorney General Barr stating that “Special Counsel [Mueller] found
no ‘collusion’ by any Americans in the [Russian government’s] illegal activity.”); id. (“But
again, [ ] Special Counsel[] [Mueller] did not find any evidence that members of the Trump
campaign or anyone associated with the campaign conspired or coordinated with the Russian
government in its hacking operations. In other words, there was no evidence of Trump campaign
‘collusion’ with the Russian government’s hacking.”). Attorney General Barr further stated that
Special Counsel Mueller “did not find that any person associated with the Trump campaign
illegally participated in the dissemination of the [stolen] materials [on Wikileaks],” and “did not
find any conspiracy to violate [United States] law involving Russia-linked persons and any
persons associated with the Trump campaign.” Id. According to Attorney General Barr, the
“bottom line” is that “[a]fter nearly two years of investigation, thousands of subpoenas, and
hundreds of warrants and witness interviews, [ ] Special Counsel [Mueller] confirmed that the
Russian government sponsored efforts to illegally interfere with the 2016 presidential election
but did not find that the Trump campaign or other Americans colluded in those schemes.” Id.
Finally, Attorney General Barr announced that he and then-Deputy Attorney General Rod J.
Rosenstein “concluded that the evidence developed by [ ] Special Counsel [Mueller] is not
sufficient to establish that [ ] President [Trump] committed an obstruction-of-justice offense.”
Id.; see also id. (“Although the Deputy Attorney General and I disagreed with some of [ ] Special
Counsel[] [Mueller’s] legal theories and felt that some of the episodes examined did not amount
to obstruction as a matter of law, we did not rely solely on that in making our decision. Instead,
we accepted [ ] Special Counsel[] [Mueller’s] legal framework for purposes of our analysis and
7
evaluated the evidence as presented by [ ] Special Counsel [Mueller] in reaching our
conclusion.”). Attorney General Barr declared that
[i]n assessing the 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 the
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.
Id.
That same day, Attorney General Barr also released a letter to members of Congress
purporting to summarize the Mueller Report. See generally Def.’s Mot., Ex. 7 (Letter from
William P. Barr, Attorney General, to Lindsey Graham, Chairman, Committee on the Judiciary,
United States Senate, et al. (Apr. 18, 2019) (“April 18, 2019 Letter”)). In that letter, Attorney
General Barr represented 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,” id., Ex. 7 (April 18, 2019 Letter) at 1; see also id., Ex. 7 (April 18, 2019
Letter) at 1 (stating that Special Counsel Mueller “concluded that [t]he investigation did not
identify evidence that any [United States] persons conspired or coordinated with the [Internet
8
Research Agency]” (first alteration in original) (internal quotation marks omitted)); id., Ex. 7
(April 18, 2019 Letter) at 2 (representing that Special Counsel Mueller “did not find that
President Trump, his campaign, or its associates conspired or coordinated with the Russian
government in its hacking activities”); id., Ex. 7 (April 18, 2019 Letter) at 2 (“Special Counsel
[Mueller] did not find that any person associated with the Trump campaign, or any other [United
States] citizen, illegally participated in the dissemination of hacked information.”); id., Ex. 7
(April 18, 2019 Letter) at 2 (“Special Counsel [Mueller] did not find any conspiracy to violate
[United States] law involving Russia-linked persons and any persons associated with the Trump
campaign.”), and that, in light of Special Counsel Mueller’s “decision not to reach a conclusion
on [whether President Trump] obstruct[ed] [justice],” “the evidence set forth in the [ ] [Mueller]
[R]eport was [not] sufficient to establish that [ ] President [Trump] committed an obstruction-of-
justice offense,” id., Ex. 7 (April 18, 2019 Letter) at 2–3.
Attorney General Barr, in his April 18, 2019 letter, indicated that the Mueller Report
would “be released to the public and to Congress to the maximum extent possible, subject only
to those redactions required by law or by compelling law enforcement, national security, or
personal privacy interests.” Id., Ex. 7 (April 18, 2019 Letter) at 3. According to Attorney
General Barr, “most of the redactions were required to protect grand-jury secrecy or to comply
with judicial orders (i) protecting from public release sensitive discovery information or
(ii) prohibiting public disclosure of information bearing upon ongoing investigations and
criminal proceedings[.]” Id., Ex. 7 (April 18, 2019 Letter) at 3. Specifically, Attorney General
Barr represented the following as the reasons for withholding the redacted information:
(1) grand-jury information . . . , the disclosure of which is prohibited by Federal
Rule of Criminal Procedure 6(e); (2) investigative techniques . . . , which reflect
material identified by the intelligence and law enforcement communities as
potentially compromising sensitive sources, methods, or techniques, as well as
9
information that could harm ongoing intelligence or law enforcement activities;
(3) information that, if released, could harm ongoing law enforcement
matters . . . , including charged cases where court rules and orders bar public
disclosure by the parties of case information; and (4) information that would
unduly infringe upon the personal privacy and reputational interests of peripheral
third parties . . . , which includes deliberation about decisions not to recommend
prosecution of such parties.
Id., Ex. 7 (April 18, 2019 Letter) at 3.
A redacted version of the Mueller Report was made available to the public later that same
day. According to the redacted version of the Mueller Report, 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
(Report on the Investigation Into Russian Interference in the 2016 Presidential Election –
Volume I of II (“Mueller Report – Volume I”)) at 66. However, because coordination—the term
that appears in the Appointment Order—“does not have a settled definition in federal criminal
law,” Special Counsel Mueller, “[i]n evaluating whether evidence about collective action of
multiple individuals constituted a crime, [ ] applied the framework of conspiracy law,”
understanding “coordination to require an agreement—tacit or express—between the Trump
[c]ampaign and the Russian government on election interference,” which “requires more than the
two parties taking actions that were informed by or responsive to the other’s actions or interests,”
id., Ex. D (Mueller Report – Volume I) at 2, and 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,” id., Ex. D (Mueller
Report – Volume I) at 66. Section IV of Volume I of the Mueller Report “describes the principal
links between the Trump [c]ampaign and individuals with ties to the Russian government,
10
including some contacts with [Trump] [c]ampaign officials or associates that have been publicly
reported to involve Russian contacts.” Id., Ex. D (Mueller Report – Volume I) at 66. See
generally id., Ex. D (Mueller Report – Volume I) at 66–173.
With respect to Special Counsel Mueller’s investigation into whether President Trump
obstructed justice, Special Counsel Mueller accepted the Department’s Office of Legal Counsel’s
legal conclusion “‘that the indictment or criminal prosecution of a sitting [p]resident would
impermissibly undermine the capacity of the executive branch to perform its constitutionally
assigned functions’ in violation of the constitutional separation of powers” for the purpose of
exercising prosecutorial jurisdiction and “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.” Id., Ex. D (Report on the
Investigation Into Russian Interference in the 2016 Presidential Election – Volume II of II
(“Mueller Report – Volume II”) at 1 (internal quotation marks omitted). Therefore, Special
Counsel Mueller “determined not to apply an approach that could potentially result in a judgment
that [ ] President [Trump] committed crimes” because “[f]airness concerns counseled against
potentially reaching that judgment when no charges can be brought.” Id., Ex. D (Mueller Report
– Volume II) at 2. Nevertheless, in light of the fact that “a [p]resident does not have immunity
after he leaves office,” Special Counsel Mueller “conducted a thorough factual investigation in
order to preserve the evidence when memories were fresh and documentary materials were
available.” Id., Ex. D (Mueller Report – Volume II) at 1–2. Special Counsel Mueller ultimately
represented 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
11
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 2; see also id., Ex. D (Mueller Report – Volume II) at
8 (“Because [Special Counsel Mueller] determined not to make a traditional prosecutorial
judgment, [he] did not draw ultimate conclusions about [ ] President[] [Trump’s] conduct. The
evidence [he] obtained about [ ] President[] [Trump’s] actions and intent presents difficult issues
that would need to be resolved if [he] were making a traditional prosecutorial judgment. At the
same time, 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.
Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President[] [Trump]
committed a crime, it also does not exonerate him.”). Section II of Volume II of the Mueller
Report details the evidence obtained during Special Counsel Mueller’s investigation. See
generally id., Ex. D (Mueller Report – Volume II) at 15–158.
B. Procedural Background
On November 5, 2018, EPIC requested, inter alia, a copy of the unredacted version of
Mueller Report from the Department pursuant to the FOIA. See EPIC Compl. ¶¶ 2, 43; see also
id., Ex. 2 (Letter from John Davisson, EPIC Counsel, et al., to Douglas Hibbard, Chief, Initial
Request Staff, Office of Information Policy (Nov. 5, 2018)) at 1–3. According to EPIC, the
Department “den[ied] EPIC’s request for expedited processing” and “fail[ed] to make a
determination regarding EPIC’s FOIA request within the applicable time limits. Id. ¶¶ 55, 60.
EPIC then filed its Complaint in this Court. See generally id.
12
On March 21, 2019, the Leopold plaintiffs also sought a copy of the unredacted version
of the Mueller Report from the Department, the Office of Attorney General of the United States,
the Deputy Attorney General of the United States, and the Special Counsel’s Office pursuant to
the FOIA. See Leopold Pls.’ Compl. ¶¶ 1, 6; see also id., Ex. A (FOIA Request by Jason
Leopold) at 1–3. Although the Department granted the Leopold plaintiffs’ request for expedited
processing, it failed to produce the unredacted version of the Mueller Report within the
applicable deadline. See id. ¶¶ 8, 16. Therefore, on April 4, 2019, the Leopold plaintiffs filed
their Complaint in this Court. See generally id.
On April 22, 2019, the Court consolidated the above-captioned matters as to the
plaintiffs’ demands for the release of the unredacted version of the Mueller Report. See Order at
2 (Apr. 22, 2019), ECF No. 33. Thereafter, the parties filed their cross-motions for summary
judgment. In their respective motions for summary judgment, EPIC and the Leopold plaintiffs
request that the Court conduct an in camera review of the unredacted version of the Mueller
Report. These requests are the subjects of this Memorandum Opinion.
II. STANDARD OF REVIEW
“[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency
records unless the records are covered by the statute’s exemptions.” Students Against Genocide
v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). In a FOIA action,
the defendant agency has “[the] burden of demonstrating that the withheld documents are exempt
from disclosure,” Boyd v. U.S. Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007), and the
district court must “determine the matter de novo,” 5 U.S.C. § 552(a)(4)(B); see also U.S. Dep’t
of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (“[T]he FOIA
expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to
13
‘determine the matter de novo.’”). To determine de novo the applicability of the particular
exemptions cited by the government to the withheld documents, the Court has the discretion to
“examine the contents of [ ] agency records in camera.” 5 U.S.C. § 552(a)(4)(B); see Larson v.
U.S. Dep’t of State, 565 F.3d 857, 869–70 (D.C. Cir. 2009) (“In camera review is available to
the district court if the court believes it is needed ‘to make a responsible de novo determination
on the claims of exception.’” (quoting Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir.
2008))).
The District of Columbia Circuit has specifically noted that
in camera inspection may be particularly appropriate when either the agency
affidavits are insufficiently detailed to permit meaningful review of exemption
claims or there is evidence of bad faith on the part of the agency, when the
number of withheld documents is relatively small, and when the dispute turns on
the contents of the withheld documents, and not the parties’ interpretations of
those documents. . . . These factors identify circumstances under which it would
be error for the district court not to review the documents in camera, but they do
not present the only circumstances under which the district court may do so. As
the court explained in Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) (per
curiam), [i]n camera inspection does not depend on a finding or even tentative
finding of bad faith. A judge has discretion to order in camera inspection on the
basis of an uneasiness, on a doubt that he wants satisfied before he takes
responsibility for a de novo determination. . . . The ultimate criterion is simply
this: Whether the district judge believes that in camera inspection is needed in
order to make a responsible de novo determination on the claims of exemption.
Thus, in cases in which a look at the withheld material itself would be useful, we
have fully approved in camera examination of the withheld material by the trial
court.
Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998) (second alteration in original)
(internal quotation marks omitted). But see Carter v. U.S. Dep’t of Commerce, 830 F.2d 388,
393 (D.C. Cir. 1987) (“[T]he mere allegation of bad faith does not undermine the sufficiency of
agency submissions. There must be tangible evidence of bad faith; without it[,] the court should
not question the veracity of agency submissions.”); Hayden v. Nat’l Sec. Agency, 608 F.2d 1381,
1387 (D.C. Cir. 1979) (“The sufficiency of the affidavits is not undermined by a mere allegation
14
of agency misrepresentation or bad faith, nor by past agency misconduct in other unrelated
cases.”). However, the Circuit has cautioned that district courts “should not resort to [in camera
review] routinely on the theory that ‘it can’t hurt.’” Ray, 587 F.2d at 1195; see Juarez, 518 F.3d
at 59–60 (“It is true that [the] FOIA provides district courts the option to conduct in camera
review, but it by no means compels the exercise of that option.” (citations omitted)). Instead, in
camera review “is more appropriate in only the exceptional case.” Elec. Privacy Info. Ctr. v.
U.S. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 119–20 (D.D.C. 2005) (citing Nat’l Labor
Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) and PHE, Inc. v. U.S.
Dep’t of Justice, 983 F.2d 248, 252–53 (D.C. Cir. 1993)).
III. ANALYSIS
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
15
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
16
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
17
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,
18
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
19
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
20
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
21
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.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant in part and deny without
prejudice in part the plaintiffs’ motions. Specifically, the Court must grant the plaintiffs’
motions to the extent they seek in camera review of the unredacted version of the Mueller Report
and deny without prejudice the plaintiffs’ motions in all other respects. The Court further
concludes that it must deny without prejudice the Department’s motion for summary judgment
and directs the Department to submit the unredacted version of the Mueller Report to the Court
for in camera review. If, after reviewing the unredacted version of the Mueller Report, the Court
concludes that all of the information has been appropriately withheld under the claimed FOIA
exemptions, it will issue a supplemental Memorandum Opinion and Order granting the
Department’s motion for summary judgment on that ground and denying the plaintiffs’ cross-
motions. On the other hand, if the Court concludes after its in camera review that any of the
redacted information was inappropriately withheld, it will issue a supplemental Memorandum
Opinion and Order that comports with that finding.
22
SO ORDERED this 5th day of March, 2020. 3
REGGIE B. WALTON
United States District Judge
3
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
23