In a Totally Unresponsive Response to Reggie Walton’s Order, Kerri Kupec Does Not Deny that Bill Barr Misrepresented the Mueller Report

Yesterday, Bill Barr’s flack Kerri Kupec issued a statement purporting to rebut what Reggie Walton (whom she didn’t name) wrote in his scathing opinion suggesting that Barr’s bad faith misrepresentations of the Mueller Report meant he couldn’t trust DOJ’s representations now about the FOIA redactions in it.

Yesterday afternoon, a district court issued an order on the narrow legal question of whether it should review the unredacted Special Counsel’s confidential report to confirm the report had been appropriately redacted under the Freedom of Information Act. In the course of deciding that it would review the unredacted report, the court made a series of assertions about public statements the Attorney General made nearly a year ago. The court’s assertions were contrary to the facts. The original redactions in the public report were made by Department attorneys, in consultation with senior members of Special Counsel Mueller’s team, prosecutors in the U.S. Attorney’s Office, and members of the Intelligence Community. In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases–a process in which the Attorney General played no role. There is no basis to question the work or good faith of any of these career Department lawyers. The Department stands by statements and efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report. [my emphasis]

It is being treated as a good faith response to what Walton wrote.

Except it’s not. It’s entirely off point.

Walton’s explanation for why he will conduct his own review of the the Mueller Report redactions doesn’t focus on the FOIA response itself. He addresses what happened before the redacted version of the Mueller Report was first released, before the FOIA review actually started.

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.


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 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. [my emphasis]

That process preceded the FOIA response entirely, so the part of Kupec’s statement talking about the “good faith” of the “career Department lawyers” (of the sort that Barr is undermining with glee elsewhere) is irrelevant. And Kupec’s claim that Barr was not involved in that later process is also unrelated to whether he was involved in the initial redaction process, a question she doesn’t address.

As Walton notes, the redactions in the FOIA release exactly match those in the initial release, though the justifications are entirely different, which may mean those career attorneys had to come up with exemptions to match the outcome of the process in which Barr was involved.

[D]espite 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.

Kupec doesn’t even try to address the central claim of Walton’s opinion: that Barr’s public statements — about whether the report showed “coordination” or “collusion,” and about whether it showed Trump obstructed the investigation — conflict with what it already evident in the unredacted parts of the redacted Report.

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 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.

That is, Walton judges that Barr’s lies about the Mueller Report tainted the subsequent process, no matter how many career Department attorneys were involved.

Significantly, Kupec offers no rebuttal — none — to Walton’s judgement that Barr misrepresented what the Report showed.

As I have noted, it’s unlikely Walton will release much more than was originally released (though he will surely be prepared to release all of the Roger Stone related materials once Amy Berman Jackson lifts that gag). But the three or four places where he might all undermine the tales that Barr told about the Report. Unsealing those redactions would:

  • Explain how the President and his son failed to cooperate
  • Confirm that his son (and possibly his son-in-law) was a subject of the investigation
  • Reveal how several of Trump’s flunkies told concerted lies before they decided to start telling the truth
  • Show why Mueller seriously considered indicting Stone — and possibly even the President himself — for their actions encouraging the hack-and-leak operation

Moreover, on one key point — the redactions for privacy that in the FOIA review were exempted under b6 and b7C — Barr’s initial claims about redactions are an obvious lie: he said those redactions hid “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Among the people the initial review treated as “peripheral third parties” are Donald Trump Jr. and Deputy National Security Advisor KT McFarland; in Judge Jackson’s review in the Roger Stone trial, redactions protecting privacy and reputational interests even included the President himself.

Importantly, Walton’s in camera review will be critical for the next step, which will be a review of DOJ’s unprecedented b5 exemptions, which already show abundant evidence of politicization (and in which there is good reason to believe Barr has been involved). By reading the declination decisions pertaining to people like KT McFarland, Walton will understand how improper it is to redact her later 302s while releasing her earlier, deceitful ones.

If Kupec would like to do her job rather than play a key role in Barr’s ongoing propaganda effort about the Report, she can explain what role Barr had in that initial review, something not addressed in her off point comment. Even better, she can explain why the redactions on the underlying materials like 302s are so obviously politicized.

But given that she’s not even willing to deny that Barr misrepresented the initial report, I doubt she’ll issue any statement that offers useful commentary on this process.

30 replies
  1. dude says:

    You have a made a good argument citing Kupec’s non-denial denial on behalf of Barr. But what happens in legal process? I mean– what does Judge Walton or DOJ do in court next? Under ordinary circumstances, I would expect DOJ would provide what Walton requires. And maybe they will, and maybe Kupec’s statement is just public relations fog released to save face for Barr. But these days it seems there are procedural things will interfere with simply complying with a Judge’s. What are they this time?

    • dude says:

      —off subject a little: why is it I can sometimes get editing time on replies and other times I cannot? It seems to vary from day to day for me. Must be some setting and I have missed it.

      • P J Evans says:

        It’s like that for *everyone*. It may have something to do with the number of comments, or the load on the server.

      • bmaz says:

        Dude, it is what PJ said, but also our security protocols. The editing features come and go because of that. We are sorry about that, but it is kind of necessary.

  2. rbba says:

    Good grief, why now? Why is there never a rapid response to government abuse? We all knew this but must depend on our officials to take action, timely.

  3. vvv says:

    “If Kupec would like to do her job rather than play a key role in Barr’s ongoing propaganda effort about the Report, …”
    I think she sees that as her job.

    • Pragmatic Progressive says:

      The D.C. Ciruit authorized production of the whole grand jury record. This ought to shed a little more light on whether the AG misled the public.

  4. Rugger9 says:

    OT but it’s interesting that Meadows is replacing Mulvaney as Chief of Staff. However, who is replacing Mulvaney at OMB when he’s shipped out to Belfast? I don’t remember seeing that covered in the tweet-fest. At least Mick is going to Ireland in the spring, which will be nice eventually, just in time for the Brexit hard-versus-soft-border (because Ireland remains in the EU) debate. That has implications for Scotland as well, i.e. whether another independence referendum will occur.

    As far as the Kupec thing goes, it won’t sway Judge Walton so it must be something put out there for the RWNM to get all frothy about when they get bored blaming COVID-19 on Obama. We’ll see how the noise machine covers that Walton was appointed by W (not Obama).

    • Tracy Lynn says:

      Belfast, Northern Ireland, is in the United Kingdom. That’s where Mick is headed. You’re right about the Republic of Ireland — it’s in the EU.

      • P J Evans says:

        I saw comments that Mulvaney’s family came from Mayo – which is very much not in Northern Ireland.

          • Eureka says:

            Murphy would be a great SoS! That’s a Warren-like level of greatness for the respective job.

            Glad someone is thinking ahead, lol.

            • emptywheel says:

              Well, *I’m* not going to be President. And I’m not aware anyone besides me is thinking of him for SoS.

              • Eureka says:

                I figured as much — that it was your idea — but didn’t know what political chatter I might have missed.

                You make a great case for women being in charge of the world’s suggestion boxes, too.

      • Rugger9 says:

        The split between Ulster and the rest of Ireland is why I noted the border issue. There is the religious conflict that underlies the issue as well which will interfere in any solution. Also, NI doesn’t have its devolved parliament (like Scotland and Wales do) currently functioning so everything has to be handled by Westminster and Boris.

        • pjb says:

          I for one look forward to seeing Mick M as the new “hot priest” on season 2 of Derry Girls.

          • Just Bill says:

            Derry Girls is very funny!

            Trump didn’t ‘t simply let Mulvaney move on. Trump made him squirm and dangle before sending him offshore.

            I don’t think that Mick willl… ‘just get over it!’

  5. PeterS says:

    I have no desire to defend Ms Kupec, but this part of her statement is surely responsive:

    “In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases–a process in which the Attorney General played no role.”

    She may feel she has no need to address all of Walton’s comments, but let’s imagine the statement began by admitting Barr did grossly misrepresent the Mueller report, that the DOJ’s redactions in the public version were politically tainted.

    Nonetheless, the “fact” that Barr took no part in redactions in the version prepared for the FOIA request would answer Walton’s criticisms, as the person whose good faith he doubts had nothing to do with the version before his court.

    Of course, the magic coincidence of the redactions casts a ton of doubt on the “played no role” defence, but I see the issue as one of credibility not lack of responsiveness.

    A minor quibble, sorry. 

    • emptywheel says:

      Given that the initial redactions — of things like Don Jr being a subject — were based on a false claim that those people were peripheral, and the subsequent b6,b7C decisions are different than, say, those used for the same people in the DOJ IG Report, that’s not very compelling.

    • earlofhuntingdon says:

      The magic is in the, “In response to FOIA requests.” A review limited to that purpose avoids the subject matter of Walton’s criticism, while appearing to respond to it.

      These people will engage in limitless parsing to cover-up their and the president’s misdeeds. The latter are worse and more pervasive than whether Donald Trump had oral sex with one of his White House interns, a fault which elicited so much verbal obfuscation from Mr. Clinton.

      Of course, Barr has an obligation to respond to Walton’s questions. A senior federal district court judge in Washington, DC, and the presiding judge of the FISC, just called the US Attorney General a liar, which puts in doubt the statements of every other lawyer in the DoJ.

    • Peterr says:

      And how do we know Barr “took no part in the redactions in the version prepared for the FOIA request,” who “had nothing to do with the version before his court”?

      We know, because Barr said so, through his spokesperson.

      Given what Judge Walton said about Barr’s misleading comments about the Mueller report, it’s safe to say Barr used up any benefit of the doubt with Walton.

      • Rugger9 says:

        As noted above, Walton will not fall for this, it was submitted by the Palace through Kupec for another audience. Whether it is Individual-1 or the rest of the RW noise machine or both can be debated.

  6. joelafisher says:

    Had to laugh at the (accurate) statement that the AG made his statements “nearly a year ago”. As though their age has something to do with whether they were lies.

  7. OldTulsaDude says:

    If read carefully, the denial of input seems to me to only apply to the review: “In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases–a process in which the Attorney General played no role.”

    Yet this statement, as I read it, is specifically untied to the original decisions about what to redact, meaning (IANAL) to me that there is no denial that Barr interfered directly with that process.

    • Vicks says:

      The Trump organization is quite deft at whatever you call that type of conflation, it must be easier to be bold when you still have another layer to fallback on…
      “It’s not a crime to lie to the media”

  8. vicks says:

    I understand the concept of “Barr has an obligation to answer Walton’s questions” but what would make Barr himself feel obligated?
    Isn’t this going to be part of the inevitable supreme court showdown?
    It seems Barr is on a mission to make Trump as close to a king as he can, and keeping his philosophy in mind, how could Barr justify following the orders of a lowly judge if it meant going against the king’s wishes?
    IMHO Barr has taken this as far as he can go without crossing the line into what people keep calling a “constitutional crises.”
    My question continues to be, because the stakes are so high (to keep Trump in power), could this be part of a giant game of chicken that Trump could ultimately win because the slow wheels of justice have allowed him to amass an army of “professional” deplorables to protect him in just this type of situation?
    I have a rough grasp of how our constitution protects us, but if enough of the process is tainted and if some of the final “deciders” were nominated for when/if this day ever came, it’s hard not to put together a bleak scenario that sounds a hell of a lot like one of team trump’s whacko conspiracies….
    I guess what I am using too many words to say, is that I am afraid the normal steps will continue to be blown away, and it may be the supreme court that ends up deciding if it’s going to be the end of days for the Trump organization or the end of days for our country.

  9. SomeGuyInMaine says:

    I wish Walton would require Barr to appear before him to explain in detail.

    That’ll never happen. But I wish it would.

  10. John K says:

    I find it interesting that DOJ career attorneys who redacted things that obviously protect the president and his cronies are proficient and skilled whereas the DOJ career attorneys who recommended sentencing for Roger Stone needed some supervisory intervention.

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