What I Would Do with the Mueller Report If I Were Reggie Walton

According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

40 replies
  1. Marinela says:

    Personally, curious about the mystery case.
    I suspect not in your list because is still ongoing.

    • emptywheel says:

      There’s no reason to believe it appears anywhere except the referrals section (if there–it was originally a DC USAO case, and I’m not sure if that counts a referral). And if it does, it’s in our interest to have it remain secret.

      • sneakynordic says:

        If it came into the SCO but then went back to DC USAO, and then was shut down by Barr, we should probably know the what, why, and how come of that investigation. The only way to know whether DOJ pulled another Epstein is to release the records, which Judge Walton acknowledged!

  2. Eureka says:

    As I recall, there are a couple of IT redactions (~ WL-GRU, I think) I was suspicious about (as to necessity/category), though I never cross-checked them with the BuzzFeed FOIA version to see how they were labeled there.

    I’ve also been of the opinion that the USG has already expended a lot of their (and partners’) intelligence capital, so to speak, in the GRU indictment especially, to make the clear public case. For that reason I am both sympathetic to the need to keep workable methods secret and workable, but also wonder what our adversaries would have already easily figured out of that which remains masked to the American public, given what they know of what they did, how they did it, with whom, etc. and what has already been revealed.

    Realistically, if techniques or methods have been burned-by-deduction by hostile-actor readers of the Mueller Report, we should get to know what’s under the redactions, too (with the proviso about not violating gag orders/cases).

    • emptywheel says:

      The GRU stuff is largely LE, not intelligence. But even still the FBI would want it kept secret, and Walton would abide by that request.

      • Eureka says:

        Thanks for clarifying. In any case, I am glad to hear that Judge Walton is giving the redactions a fair review, and appreciate how you laid out expectations for what might happen given context (including history).

  3. Mulder says:

    …One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial…Wondering how Donald President would accomplish the coverup?

    Walton has discretion to reveal the info…if Stone wins an appeal to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed.

    Is the play to avoid the drama and daily news derecho a trial would bring and claim fake news when the redactions are revealed? Does he have ways to keep it from public scrutiny?

    A manufactured mistrial that isn’t re-tried? Or would he just blame mental illness and video games?

  4. STony says:

    Did you go to law school? If so, have you subsequently suffered a head injury?

    Keep digging through the sh*t, I’m sure that there’s a pony in there somewhere.

  5. CD54 says:

    I’d settle for Barr being forced under oath to declare the entire basis within the Mueller Report for every statement in the Barr letter.

    • bmaz says:

      You really want that? Then you should support formal opening of an impeachment inquiry. Because you know what defeats Executive Privilege? A formal impeachment inquiry, that is what.

      • orionATL says:

        there are some practical questions here that need answering.

        from what bmaz, says an impeachment inquiry would be a powerful tool to pry loose information from the executive branch. but the problem is that this presidency ignores customs, rules, and laws as it choses (ironically, a key impeachable characteristic of the trump presidency).

        given a highly partisan judiciary stacked to defend a republican president together with a judiciary that by design depends on the executive for enforcement of its rulings, if the current judiciary happened to rule against the president, how would “executive privilege” be defeated with this president? who would forcibly take the documents and depositions from the presidency? by what means? reigning in a lawless executive by rules and laws is a critical issue.

        • bmaz says:

          That is easy to answer. An impeachment inquiry is Constitutionally privileged and footed. Even right wing nut job judges cannot deny that. It is the one, and sole, argument that cannot be overcome by conservative judges. Executive privilege cannot withstand an impeachment inquiry, and the very DC Circuit where this would play out has quite recently said exactly that. This is part and parcel of why I have been so insistent on this.

          Who would gather the evidence? Also easy to answer. The House Judiciary Committee and any designate therefrom.

          As Mike Stern, a fantastically smart guy on legislative function, said:

          In short, initiating a formal impeachment proceeding, though not a silver bullet, would significantly enhance the House’s ability to gather relevant information in a timely fashion. Claims that oversight hearings are equally powerful are just wishful thinking.

          I would, and do, argue that an inquiry is as close to a “silver bullet” as Article I House investigation can ever possibly have. And the DC Circuit has similarly so indicated as recently as April of this year in McKeever.

        • orionATL says:

          thank you, bmaz. this is extremely informative.

          and i would add, failure of a president to co-operate with a impeachment inquiry is itself an impeachable offense.

          two additional comments:

          1) the president’s behavior in the last month re his public statements on immigrants, domestic terrorism, and gun control have done him serious political damage entirely apart from his Russian collusion, campaign violations, and income tax fraud.

          2. at some point the Republican party’s monolithic support for trump must crack on the issue of the political survival of legislators. i think that cracking has begun with resignations that i’d guess were caused by our president’s extraordinarily mean-spirited public statements. enough is enough; even republicans don’t accept that our presidents behave this way.

        • Tom says:

          And how does Trump backtrack on years of anti-immigrant ranting at this late date?

          “… I am in blood
          Stepped in so far that, should I wade no more,
          Returning were as tedious as go o’er.”

          Macbeth Act III Scene iv

        • orionATL says:


          once the public consciousness is thoroughly saturated with awareness of trump’s fundamental meaness and the citizenry turns against him in disgust and distrust there can be no going back, no forgiveness – except among those conservative Christians who sold their souls for anti-abortion silver.

        • bmaz says:

          And that is exactly why this is so important. Actual articles of impeachment voted out to the Senate are pretty much irrelevant and unnecessary. The point is to start getting hearings going and information out to the public. To saturate the public consciousness as you pretty much perfectly put it.

          A steady diet that even the mopes at the New York Times cannot ignore or soft sell. And then in 15 months the people vote. Our future depends on it being an informed vote though.

        • Jackknife of Sarlona says:

          bmaz, let’s say a formal impeachment inquiry is made. The House can issue subpoenas for individuals and/or documents. If I understand it correctly, the Court can compel compliance in most cases with fines and/or jail for individuals such as Don McGahn, Hope Hicks, etc.

          What happens if or when Trump, confident that the Senate won’t impeach, refuses to comply? What options would the Courts have in that case?

          Also, would an impeachment inquiry prevent Trump from issuing pardons for people such as Flynn, Stone, etc?

        • earlofhuntingdon says:

          The president’s pardon power would be unaffected. But were Trump to issue pardons for an illegal purpose, it would add to the articles of impeachment.

        • Jenny says:

          bmaz thanks for the direct and useful explanation regarding impeachment inquiry. I plan to share with others to help them better understand.

      • PieIsDamnGood says:

        What’s the difference between a formal impeachment inquiry and the kinda-sorta-inquiry democrats have used as a justification in court?

        • bmaz says:

          I know it sounds stupid, but one is truly “formal” and one is not. I do not think a full floor vote is required, I think a formal resolution voted on by the Judiciary Committee would suffice. But that seems necessary for it to be taken seriously. Were I judge, that would be my view. Blithely inserting a couple of words in a petition is not enough, to give it the imprimatur of some kind of formality.

          And, by the way, 16 of the 24 Dems on HJC already officially support opening a formal impeachment inquiry. Nadler clearly does, but has not officially said so yet, and would be vote number 17. They only need four more after that for the resolution to pass HJC. And those would come pretty easily if Nadler came in. Pelosi is constraining Nadler.

        • PieIsDamnGood says:

          Thanks, glad I finally had a question that didn’t deserve a snarky response ;) Been enjoying your twitter feed, keep it up!

          Sounds like a case of lawyers throwing all their arguments at a wall and seeing what sticks. Let’s hope the judge forces Nadler’s hand, or Pelosi gets her head out of the sand.

        • Democritus says:

          This is something my non legal self is curious about too. I’m referencing how Nadler’s started referencing impeachment inquiry in some new filing I think it was, in the past week or two?

          As soon as I saw those articles I checked here and bmazs twitter but didn’t see much so figured it was just a sop by the Democrats to the base, and not as significant as I’d hoped at first.

          This is what I’m referencing:

          Also folks, if your rep is back home go visit any town halls or their offices and harangue them about impeachment.

          TreasonWeasels von fuckface must go.

          *Derp, I see the answer above*

      • joel fisher says:

        Since it is the plain is the duty of the House to open an impeachment inquiry, my question is will the existence of the inquiry authorize non-White House persons to provide information that is currently unavailable? My guess is that Trump will not cooperate with it, refuse all document requests, direct–that is continue to direct–people not to cooperate and that the House will add a “Contempt of Congress” count to the list of impeachable offenses. End of story? Certainly no GOP Senate member (an evil lot) is going to change a vote based on that additional count. Even if all this is nothing more than random bullshit, there’s something to be said for doing the right thing and the House should get to it.

        • bmaz says:

          Good question. And the answer, I think, is that witnesses that are not currently, nor formerly, Executive Branch employees are already pretty well compelled to appear and/or submit documents requested. That said, an inquiry would strengthen that too, at least somewhat.

  6. PSWebster says:

    What could possible be the rationales for Pelosi delaying an Article to Impeach?

    A timing issue of getting closer to 2020 ? Gotta be something like that… Thanks.

    • Marinela says:

      It would make sense only if she doesn’t have the votes. But according to bmaz this is not it.
      Also, it cannot be that she is worried about the vulnerable dems, they don’t get to vote on starting the formal inquiry, only the 24 in HJC. So, this is another case when Trump “reach” plays somehow. But nobody has a good explanation, not even Pelosi.

      • Tom says:

        I can understand Pelosi wanting to avoid Democrat overconfidence lest it breed voter complacency and not wanting the public’s anti-Trump feelings to peak too early going into next year’s election. But there’s an old military saying about winning battles in the mind of the enemy–i.e., your adversary is defeated when he thinks he’s defeated, which would seem to explain those Republicans who have decided in recent weeks not to seek re-election in 2020–and I believe the Democrats could do more to pound home the message repeatedly that “the Trump Presidency is a failed Presidency” and cite the all too numerous reasons why that it so.

        • bmaz says:

          It is not “overconfidence” for the House to do what is necessary to do its job of oversight and protect its Article I prerogative and the separation of powers. Currently, that is being stymied by sheer obstruction and bogus refusal by the Trump Administration. Opening a mere inquiry can help remedy that. No, it should have never come to this point, but it did long ago. It is long past time to address that head on.

  7. Margo Schulter says:

    Just a reflection on Marcy’s fine point that being careful to reserve some “Ongoing Matter” disclosures relating to Roger Stone until after his jury is selected, which might tie in with your question, PSWebster at 2:07 pm. Is it possible that Pelosi is waiting either for the Roger Stone trial with its likely disclosures related to Trump’s role in “optimizing” WikiLeaks material, etc., or for a pardon, as a spur to a formal impeachment inquiry? I’m not saying that it’s likely or otherwise, just tossing out the idea and seeking impressions.

  8. Margo Schulter says:

    That is, “Marcy’s fine point that from the view of a fair trial it’s wise to be careful to reserve `Ongoing Matter’ disclosures relating to Roger Stone until after his jury is selected…”

Comments are closed.