WASHINGTON (CN) – A lawyer representing CNN in a battle for access to sealed records from the Mueller investigation told a federal judge in Washington on Monday that the Justice Department is intentionally delaying production of the documents.
“News delayed is news denied,” attorney Charles Tobin with Ballard Spahr told Senior U.S. District Judge Reggie Walton.
The first document production by the Justice Department in response to a Freedom of Information Act request was delivered Nov. 2 to the CNN office in D.C., the same day as the parade celebrating the Washington Nationals winning the World Series, the attorney told the judge.
Tobin argued the government’s delivery method violated the judge’s order to begin producing documents, including records of FBI interviews from the special counsel’s investigation, known as 302s, by the first of the month on a rolling basis.
“We are convinced that the government is slow-rolling these documents,” Tobin said.
But Justice Department attorney Courtney Enlow said the government showed the “courtesy of overnighting” the mailed records to CNN. Electronic delivery is challenging, she added, because the files are large and emails with attachments can bounce back undelivered.
But Tobin said CNN routinely receives batches of documents in similar quantity electronically from the government in response to FOIA requests.
Walton, a George W. Bush appointee, agreed the method was troubling.
“I do agree that the production day is when you should have them in your hands,” the judge told CNN, instructing the Justice Department by mail or electronic delivery to meet the Dec. 1 deadline for production and all other deadlines moving forward.
Walton also ordered the Justice Department to write up a list of all the names of witnesses interviewed by the FBI during former special counsel Robert Mueller’s investigation to help CNN and its co-plaintiff BuzzFeed narrow which requested records take priority in the production process.
“The FBI would want to scrub that list,” Enlow told the judge after the news outlets suggested the list would be useful. Walton later ordered its production by Jan. 3.
He further ordered the government to prioritize producing Mueller documents already accessed by the House Judiciary and Intelligence Committees, approximately 750 pages, and that the Justice Department give high priority to producing summaries from the special counsel’s office on the Mueller report, which CNN and BuzzFeed plan to compare to Attorney General Bill Barr’s summary of the report.
Walton denied a request from CNN to order the Justice Department begin handing over the 302s accessed by longtime Trump adviser Roger Stone’s legal team during their client’s criminal trial. A federal jury earlier this month convicted Stone on five counts of lying to Congress, plus obstruction of justice and witness tampering, in a case brought by the special counsel.
House Democrats are now investigating whether Trump lied to Mueller about his 2016 communications with Stone on WikiLeaks releasing Russian-hacked documents based on evidence that surfaced in the trial. Tobin said the public has a right to know what lies beneath the 302s Stone’s attorneys viewed, particularly in light of the upcoming election.
The judge said he understood the public interest in the documents but said he must consider the “onslaught” of FOIA cases in the D.C. federal court.
Tobin disagreed: “We are sort of letting the tail wag the dog by letting the government decide how much money it wants to spend on FOIA request.”
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