WASHINGTON (CN) — Attorneys for news outlets suing for records from the Mueller investigation accused the Justice Department on Thursday of applying redactions that back up President Donald Trump’s echoing claim of the probe being a “witch hunt.”
“It appears that this entire process of releasing information is an attempt to paint a one-sided picture of the entire special counsel investigation,” CNN attorney Charles D. Tobin said in a teleconference hearing.
U.S. District Judge Reggie Walton, without speaking to any possible validity in the claim, appeared doubtful that the arguments applied to the case before him regarding records from the FBI investigation into Russian interference in the 2016 presidential election.
“Even assuming for the sake of argument that there has been government misconduct related to the Flynn prosecution, how does that have relevance as to whether there has been appropriate withholdings here?” the judge asked.
Tobin had made reference to the government’s recent motion to drop the case against Michael Flynn — in which the Justice Department argued rogue agents set up the former national security adviser — and the president recently commuting the sentence of Roger Stone after Attorney General William Barr had stepped in to lighten the sentence against the longtime Trump adviser.
Both Flynn and Stone were indicted by former special counsel Robert Mueller. The Justice Department is in the process of producing batches of hundreds of pages of documents for CNN and Buzzfeed from the investigation, including records of FBI witness interviews, known as 302s.
A George W. Bush appointee, Walton voiced frustration over the slow pace of production last year, accusing government officials of “thumbing their nose” at the Freedom of Information Act.
Tobin said the media plaintiffs were not claiming the search for records was inadequate, but that as a matter of substance the documents reflecting the alleged government misconduct should give the court reason for alarm.
Barr has spoken publicly on the administration's stance that the probe Mueller headed was teed up by Obama-era officials to undermine the Trump administration.
“And the president has tweeted about it profusely,” Tobin added, referencing Trump’s repeated accusations of the investigation being a politically motivated “witch hunt,” a claim recently rejected by Mueller himself.
The Trump administration’s claims of government misconduct by Mueller prosecutors, Tobin further argued, cuts across the reliance on the B(5) exemption in the Freedom of Information Act.
The attorney pointed to case law from the Nixon era where government officials were found to be engaged in discriminatory actions and the judiciary shot down attempts to rely on records exemptions.
He also argued the exemption allowing for blacked-out information in interagency memorandums or letters does not mean the government can recast public records to fit the administration’s policies, particularly in the run-up to the November election.
Tobin highlighted an example in the sought-after 302s where the entire document is blacked out except a line where an associate of Trump’s former lawyer Michael Cohen disputes the existence of sex tapes of the president.
“So the entire 302 is redacted except for a reference to the fact that the infamous tape, according to a source, was fake. That is a one-sided presentation of the information,” the attorney said.
Justice Department attorney Courtney Enlow said in response to the argument that it was not appropriate to litigate the Flynn case as part of the FOIA proceeding.
The media plaintiffs are now counting on Walton considering the administration’s claim of government misconduct when ruling on their challenges to FOIA exemptions, though the judge seemed hesitant to consider the argument in his final opinion.
Enlow, meanwhile, said there is no government misconduct exemption in the Freedom of Information Act.
The Justice Department in a website breakdown of the FOIA exemptions 6 and 7(C) argues, however, that there is reason to release information when an official has violated public trust.
“As a general rule, demonstrated wrongdoing of a serious and intentional nature by a high-level government official is of sufficient public interest to outweigh almost any privacy interest of that official,” the agency website states.
Rather than rule from the bench, the judge closed out Thursday’s hearing informing both parties that he will issue a summary judgment ruling on pending motions within the next month.
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