Questioning Bill Barr’s “No Collusion” Propaganda, Reggie Walton Orders an In Camera Review of Mueller Report

Before the Trump Administration started really politicizing justice, Reggie Walton had already proven himself willing to stand up to the Executive Branch. During the George W Bush Administration, he presided over the Scooter Libby trial, never shirking from attacks from the defendant. And in the first year of the Obama Administration, as presiding FISA Judge, he shut down parts of the phone dragnet and the entire Internet dragnet because they were so far out of compliance with court orders.

And Walton had already showed his impatience with Trump’s stunts, most notably when presiding over a FOIA for materials related to the firing of Andrew McCabe. He finally forced DOJ to give the former Deputy FBI Director a prosecution declination so he could proceed with the FOIA lawsuit.

So it’s unsurprising he’s unpersuaded by DOJ’s request to dismiss the EPIC/BuzzFeed lawsuits over their FOIAs to liberate the Mueller Report, and has ordered DOJ to provide him a copy of the Report before the end of the month to do an in camera review of redactions in it.

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 claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA.

To justify this review, Walton cites Barr’s silence about the multiple links between Trump and Russians and about the reason why Mueller didn’t make a decision about charging Trump with obstruction.

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 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.

Walton further cites claims that Barr made in his April 18 press conference and letter — where he specifically claimed Mueller had found no evidence of collusion — to judge that Barr lacked candor in his statements about the report.

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.


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 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.

Walton doesn’t say it explicitly, but he seems to believe what the unredacted portions of the report show amount to “collusion,” the kind of collusion Trump would want to and did (and still is) covering up.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

Update: Here’s the FOIA version of the Mueller Report; here is Volume II. The b1 and b3 redactions won’t be touched in this review. Where Walton might order releases are the b6, b7C redactions. I expect Walton may order these redactions removed, which show that Don Jr and someone else was investigated.

Update: I did a post last August about what Walton might do with these redactions. It holds up, IMO.

74 replies
  1. PieIsDamnGood says:

    This is great news! It’s hard not to be frustrated that it’s taken so long with so many other crises in between to come to light.

    • Tony el Tigre says:

      I agree it’s great news but I will bet you a cookie that it will end up at the Supreme Court, they won’t decide until after the election, and they will rule in Trump’s favor 5-4

  2. Desider says:

    Trump keeps claiming he’s too busy to respond to litigation – but now that he’s suing WaPo & NYTimes, won’t judges note he seems to have a lot of time on his hands – & court actions that *he* instigates?
    And so discovery follows Trump & Barr back.

    • Rugger9 says:

      The campaign is filing the lawsuit in NY and I would guess against the WashPo as well. If the case is about the defaming of the person, how does the campaign have standing? The campaign isn’t harmed, and it’s not like the articles were not true (and about a public figure). However, Individual-1 always will spend someone else’s money instead of his own. I hope his MAGA tribe enjoys being fleeced for hopeless litigation.

      • Reader 21 says:

        What right-thinking Attorney would let his client proceed down this path—Individual-1 will get his ass handed to him on plate by WAPO and NYT Counsel, in a little thing called discovery. What a lowlife assclown idiot thug he is. Keep an eye on this one.

        • bmaz says:

          Chuck Harder is an asshole, but he is not an idiot. There will never be discovery on these cases. These are filed simply to make a mark and discourage other negative reporting.

        • joel fisher says:

          I agree completely that discovery is to be avoided, but, at least in Federal Court, the parties have an initial disclosure obligation. Not that Trump 2020 (or Trump himself) cares about “Rules” in general, or Rule 26 in particular, but the Judge who’s assigned will and might issue an order requiring a little (or a lot) of information. Also, isn’t Harder taking the risk of the Defendants filing counter-claims and, thus, making a dismissal by Plaintiff more difficult? Most lawyers, I think would have discouraged these seemingly impetuous and frivolous lawsuits, so my guess is the decision was made by Trump himself. He may have kicked a hornet’s nest.

  3. David Chop says:

    You might want to say what an ‘in camera review’ is. Yes, I googled it. I’m likely not the only non-lawyer who isn’t familiar with the term.

      • pjb says:

        Can DOJ seek stay of the Order to turn over unredacted MR pending appeal to DC Circuit? Should we expect they will do so?

        • Pragmatic Progressive says:

          DOJ can either try to stall by going to the D.C. Circuit or try to put it to bed while Trump remains in office by going straight to the Supreme Court if they so choose.

          Don’t expect anything.

        • pjb says:

          I don’t understand what you mean “Don’t expect anything.” Do you mean they won’t appeal? Do you mean you expect they’ll comply with the Order? Do you mean they’ll act contemptuously of the Order? I don’t follow.

      • TM says:

        Annnd….I’m out. A helpful request gets a snarky answer by someone who is not truly helping the site gain readership. Goodbye.

        • bmaz says:

          Oh, I’m so sorry Uncle Albert. Not sure how we can go on without whatever brilliance you had Mr. First Time Commenter. Thanks for playing though!


        • Areader2019 says:

          Haha. Sometimes I visit here looking for a serious bmaz smack down. Thank you.

          Never change.

        • P J Evans says:

          Another blog I visit has “members” and “guests”. It’s moderately amusing watching someone who’s a guest complaining about having to read liberal views and [o the horror] snarky posts. My response is that no one else made them read there..

        • Desider says:

          You mean higher & hotter? Yes, it does.
          Below’s what I get as 1st line from Googling “in camera”.
          IANAL, but how *should* we reward “too lazy/stupid to Google”?
          in camera /ɪnˈkam(ə)rə/ phrase of camera
          in private, in particular taking place in the private chambers of a judge, with the press and public excluded.
          “judges assess the merits of such claims in camera”

        • Kevin Brady says:

          I have been reading this blog for three years but I am out to – bmaz you are a mean spirited, sanctimonious a**hole and a pseudo intellectual bully and the commentators urging you on are pathetic sycophants. Marcy thanks for all of your research and analysis – I will miss it

        • bmaz says:

          Oh, good golly, no! Your two comments here over – uh, a couple of days – have been very valuable. Thanks for dropping by to shit on, well, only me. As that appears your only purpose here, sayonara. By the way, the content here is free. Have you donated? Have you done anything but bitch?

        • bmaz says:

          Quebecois! Damn, it is good to hear from you. I hope progress is being made and you will be ready for Melbourne. All the best wishes, always.

        • quebecois says:

          5 weeks after the big surgery, the tumour and the left kidney are gone. My recuperation is fast and trouble free. My other kidney already has a tumour, there are non invasive treatments we’ll discuss in a month or so. My chances of ever saying i’m in remission are slim to none. I”m getting back on my bike soon.

          Melbourne should be cancelled, until they have a better idea of how big this is. Heck, they should cancel the season until may. A few of the top cycling teams are doing just this, pulling out until more is known.

          If any want to see my “Fuck you Cancer” journal on Facebook, find Hugues Bergevin and ask for a friendship.

          Peace, and fuck you very much cancer.

        • bmaz says:

          We’ve lost too many good folks over the years. It is NOT going to happen again. You hang tough and know you have friends all over the world.

        • Krisy Gosney says:

          People do not have to read the comments. Just stop scrolling down at the end of the article.

        • bmaz says:

          If you do that, you will miss much of the community brilliance here. There is a reason we still have fully accessible in house comments, when other blogs terminated them or farmed them out to some useless third party shop….it is because they are truly that valuable.

        • Kevin Brady says:

          I’ve done a fair bit in my field – what I haven’t done is use my expertise to belittle and insult those who do not have the same level of expertise and experience as I do and I don’t take every opportunity to point out that they are not as far along the learning curve as they should be . You keep on being a legend in your own mind in your little fiefdom here. I’ll move on to a conversation that doesn’t involve vitriolic spewing of narcissistic bullying barf

    • Desider says:

      David, I’m not sure whose Google you’re using, but over here it pops up quite clearly:
      In United States courts in-camera review describes a process or procedure where a judge privately looks at confidential, sensitive, or private information to determine what, if any, information may be used by a party or made public. … Note: The judge has complete authority on an in-camera review.

      In camera – Wikipedia

  4. P J Evans says:

    I admit to being amused by Barr’s “lack of candor”, since that was the excuse for firing McCabe.

    • BobCon says:

      I’m curious if this phrase was chosen simply as an expression of disapproval, if there was intended irony, or if it has a specific legal significance.

      • Pragmatic Progressive says:

        It is what practitioners of the law call a “legal term of art” meaning any sequence of words that have a specific, established meaning in a legal context. A “lack of candor” captures anything that isn’t adequate to show it provided “the truth, the whole truth, and nothing but the truth” even it might fall short of being “dishonest.”

        • bmaz says:

          Heh, that is exactly right. It’s not quite a lie, but its not quite the whole truth either.

        • BobCon says:

          Thanks. It’s not always clear when something in a legal document is code and when it is only meant to be evocative.

      • bmaz says:

        Asha Rangappa is yet another “Former Fed” that is full of shit and makes a living promoting herself on CNN like she is the holy trinity of spy, prosecutor and sage. She is full of shit.

  5. MattyG says:

    Excellent news. Saw the story start pop up online late this afternoon. Sounded like it had legit standing but wasn’t sure. Now we know it does.

  6. Peterr says:

    In that third blockquote above, you clipped out some of my favorite sentences in the whole opinion. Like this one:

    In the Court’s view, Attorney General 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, i d., 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.

    Walton isn’t “questioning Barr’s ‘no collusion’ propaganda” here. He has passed judgment on it and finds it to be misleading to such a degree that the AG’s word cannot be taken at face value. If Barr had made his statements about the contents of the then-unreleased Mueller Report under oath in Walton’s courtroom, he’d be facing some serious sanctions for lying to the court.

    He’s hoisting Barr high, and using Barr’s own words to do so.

  7. Pragmatic Progressive says:

    Take note of the Court’s decision to allow BuzzFeed to join EPIC’s suit. Because when whatever is hiding under those redactions sees daylight, it will happen in a way that Bill Barr did not envision. Don’t forget, Mueller’s team spent 3 weeks repackaging the report and split it into 2 volumes once it became obvious Barr would get another chance to do what he did in the 80’s.

    “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).”


    Are there any historians here who know if a federal judge has *ever* called out the current attorney general for being dishonest with the public?? I mean, the judge himself is actually referencing his own oath of office in this Opinion. This is extraordinary in its own right.

    Well, now the DOJ can appeal directly to the Supreme Court. But the only issue that would be the subject of an appeal is whether the public is served by allowing a federal judge- a federal judge with FISA experience no less– to read the unredacted report; i.e. “the whole truth and nothing but the truth.”


    • Peterr says:

      John Sirica said some similar things about Nixon’s AG John Mitchell, though that would have been after Mitchell left the DOJ. My favorite: “You have been found guilty and I sentence you to . . .”

      • Pragmatic Progressive says:

        Ah yes, yes indeed. Here too, let’s be mindful that the judge here made a point to remind us how Mueller explicitly stated Trump has no immunity once he is out of office when that point has absolutely nothing to do with this lawsuit.

  8. Rugger9 says:

    Anyone up for a pool (or drinking party or tweet bingo) on what Individual-1 will say about this in 140 characters or less?

  9. Zinsky says:

    Although it is about a year late, Judge Walton’s review and commentary may give us a little more insight into the machinations of the Trump machine and their myriad contact points with Russians and Russian operatives in 2016. Thank you for the great analysis, Marcy!

  10. John B. says:

    Serious question (that I hope does not waken Bmaz’ ire): So, why will Toad Barr give an unredacted Mueller report to Judge Walton to review? He has yet to give an unredacted report to Congress or to anyone as far as I can tell. Why wouldn’t he pull a Jackson and just say you have made your ruling now tell me which army will be enforcing it? And then just blow it off? What leverage does Judge Walton have to force Toad Barr to comply?

    • bmaz says:

      John B – No ire here. And, frankly, if I had to bet, my guess is that is exactly what he does.

      • OldTulsaDude says:

        He’ll probably claim that Trump as president ordered him not to release it, and the courts have no authority over the president’s decisions.

    • cavenewt says:

      …”just say you have made your ruling now tell me which army will be enforcing it? And then just blow it off?”

      This of course is Trump’s lifelong legal strategy, learned from Roy Cohn. In my own mind I have condensed this to “Make me!” (accompanied by visual image of child with hands on hips.)

      It’s pretty depressing that it works so well.

    • emptywheel says:

      Barr’s DOJ gave Amy Berman Jackson a significantly unredacted report so she could rule over Roger Stone’s request for those materials. If he refused here it would be particularly noxious.

      • Reader 21 says:

        Ah great point and recall! Also: if Barr doesn’t comply, that needs to be the story—and I don’t hate that narrative, going into the fall. What are they hiding?

  11. Vicks says:

    Will this be “it?
    As someone who has been convinced far too many times that SOMETHiNG was about to happen that would clearly display the self serving manipulations of the Trump organization, I’d like to know how or why this could be any different?
    This judge started grumbling almost a year ago, which to my thinking, has given Trump’s team plenty of time to strategize on how Trump can use his friends in high places to obstruct when, and if, it came down to a demand to produce the document.
    From my non lawyer perspective this judge has patiently allowed things to work themselves out, and people seem pretty excited, is there any speculation on what legitimate obstacles Barr may throw down?
    Do you think the recent pressure put on Barr by his peers could limit what he can get away with?

  12. Reader 21 says:

    @john b —re the forcing mechanism, if DOJ doesn’t comply—couldn’t the judge hold someone (ie Barr) in contempt, if it came to that?

    PS. Also—not sure how “nice catch” autocorrected to Nicaragua, above—sorry bout that!

  13. Mitch Neher says:

    About Ms. Wheeler’s first bullet point, below:

    •DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.

    I remember a previous guess on that point; namely, that Trump and Junior may each have declared his intention to invoke his Fifth Amendment right against self-incrimination, if subpoenaed to testify before the Grand Jury.

    What if Mueller did not seek subpoenas for Trump and Jr’s GJ testimony at least in part because Mueller thought that their declarations of intent to invoke The Fifth would not be redacted for Rule 6 (e)?

    Also, what other viable hypotheses are there for the Grand Jury redactions at issue in Ms. Wheeler’s first bullet point above?

  14. Reader 21 says:

    @Mitch – that’s an excellent point—thinking it through, that could well have been at least part of the rationale, for the failure to subpoena testimony from both Individual-1 and Jr. But if so it is taking Mueller’s deference to an outdated OLC memo to absurdity. If the only recourse to an outlaw president—no matter how he attained such office, and regardless of if laws were broken in so doing—is at the ballot box (and even if he’s actively attempting to rig such)—then that argues powerfully for voters having more information, not less, in making their decisions.

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