The COVID Delay Should Give Reggie Walton First Pass at the Roger Stone Unsealing

Back when Reggie Walton ordered DOJ to give him a copy of the Mueller Report to review the exemption claims, I suggested that Judge Walton was unlikely to make much more public, except that his review might speed the process of liberating the material on Roger Stone that had been withheld under Amy Berman Jackson’s gag.

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.

But because of the COVID-related delay in Walton’s review, it’s likely he’ll make a first pass on the Roger Stone declassification, making it far harder for Bill Barr to politicize the release like he has the 302s.

Walton issued his order commanding DOJ to give him an unredacted version of the Mueller Report on March 5. DOJ complied with that order and delivered the report (and two other pages at issue in the lawsuit) on March 30. However, that same day, Walton issued a minute order stating that, because of Chief Judge Beryl Howell’s order suspending operations at the courthouse, he would be unable to start the review until April 20.

However, in light of the Chief Judge Howell’s March 16, 2020 Order Regarding Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-9 (BAH), the Court’s review of the unredacted version of the Mueller Report is unable to occur until the Court resumes its normal operations on April 20, 2020, unless the Court’s normal operations are further suspended due to the COVID-19 pandemic. Signed by Judge Reggie B. Walton on March 30, 2020.

He even suggested that if operations were further suspended (as they have been), the review might be further delayed — though EPIC made a case that the review is an essential function and should start on April 20 (that is, yesterday).

EPIC respectfully submits that in camera review of the Mueller Report is an essential function warranting the Court’s prompt attention.

[snip]

Time is of the essence in this case. It is vital that the American citizenry know the full extent of Russian interference in the 2016 presidential election before casting their votes in the 2020 presidential election, now just 200 days away. And it is vital that there be judicial review of the DOJ’s asserted exemptions that prevent public release of relevant information contained within the Mueller Report.

Walton has not indicated in the docket whether he started the review yesterday or not.

That said, once he does get around to the review, it will be far more substantive than it otherwise might. That’s because, days before Walton said he would conduct this review, ABJ issued her opinion denying Stone’s bid for a new trial. In her order, she released Stone from her gag.

Also, as of the date of this order, the defendant and his attorneys are hereby released from the media communication order of February 15, 2019 [Dkt. # 36], the minute order of February 21, 2019, and the order of July 17, 2019, [Dkt. # 149], although all other Court orders, including those related to the confidentiality of materials, and all other conditions of the defendant’s release, remain in place.

That means several of the exemptions invoked to hide Roger Stone’s efforts to optimize the WikiLeaks releases — everything under a b7A or b7B exemption starting on page 52 and in some other places — no longer apply. And given the way the timing has worked out, Reggie Walton will have first dibs on deciding whether President Trump’s personal involvement in Stone’s effort is entitled to any privacy consideration.

It may take Walton a while to get through this stuff (particularly if the 71-year old judge decides COVID threats prevent him from starting). But he should be able to get first review of what gets unsealed now.

Meanwhile, there’s another imminent source of more transparency coming.

Back in February 2019, a bunch of media outlets moved to get the warrants,

associated with the application for, issuance of, and returns regarding warrants related to the Russia Investigation generally and the Stone prosecution in particular.

The government interpreted that request this way:

It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

Back in January, the government said it could release the materials most closely related to Stone.

MR. KRAVIS: Yes, Your Honor. We believe that there are some materials in the warrant affidavits that can now be unsealed — in the affidavits that are responsive to the access request that can now be unsealed in light of the conclusion of the Roger Stone trial.

THE COURT: All right.

MR. KRAVIS: However, there are other materials in those warrant affidavits that the government believes should remain under seal either because those materials relate to other pending investigations — that is, investigations other than the one that culminated in the Roger Stone trial — and materials that implicate the privacy and reputational interests of uncharged third parties. And so the government’s request at this point is for the Court to set a deadline — the government would propose 60 days — for the government to go back and review the search warrant affidavits that are responsive to the movant’s access requests and make a recommendation to the Court as to which materials can be unsealed and which materials should remain under seal. And then the Court would have an opportunity to hear from Mr. Stone on that point, and then the Court could decide how to handle the matter from there.

Based on that schedule, the government submitted 33 exhibits — each of them, presumably, a warrant application — under seal for the court’s review.  After Judge Christopher Cooper ordered the government to give Stone a copy of the warrants so he could argue to redact more of the affidavits, the government asked that the protective order from the trial extend to these warrants because, “not all of them were previously provided to counsel for Mr. Stone in criminal discovery.”

After getting a COVID-related extension, Stone and his lawyers have until Friday to object to the privacy and grand jury related redactions in the warrants in question.

The upcoming release of warrants targeting Stone is interesting not least because we may see why he was investigated for hacking and wire fraud (though those are the kind of affidavit filings Stone once said they would fight to keep sealed). But filings in his case (this ABJ opinion is the most detailed) described that he received just 18 warrants in discovery. Which means there are 16 warrant applications that Stone had not seen before a few weeks ago, which either targeted people like Jerome Corsi and Randy Credico (and maybe even Steven Bannon and Ted Malloch), or of a scope previously unknown.

In the pandemic era, things have a way of getting delayed. And Stone has made it clear he’ll try to hide details explaining why the FBI thought he might have liability under the CFAA.

But as we’ve been focused on COVID, the release of Stone-related materials in the wake of his trial has inched closer.

Update: Judge Walton scheduled a status conference for June 18, which will likely be the earliest that we might learn what else he’ll release. And Stone submitted their response on the 33 warrants this morning, under seal.

Update: Stone did not object to the government’s redactions, so Judge Cooper ordered the government to release the warrants (there are actually 33, not 34 as I initially wrote) on Tuesday. The redactions include non-public information on pending investigations.

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41 replies
  1. Peterr says:

    This case has to be Trump’s worst nightmare.

    It’s a lawsuit filed by the media, and Trump hates the media.

    It’s a lawsuit over a document — the Mueller Report — stemming from an investigation that Trump hates.

    It’s a lawsuit that implicates Trump’s minions — Barr specifically, DOJ generally, and a host of others like McFarland and Stone — for trying to either do what Trump wanted (and damn the laws and rules against such things) or trying to defend Trump from Mueller and the media, and Trump hates Mueller, and he hates the media, and he REALLY hates being told his minions can’t do what he wants them to do.

    It’s a lawsuit presided over by a judge that sentenced Scooter Libby to jail, and Trump hates judges that send highly placed minions to jail for carrying out their boss’ will.

    But mostly, it’s a lawsuit that has great potential for demonstrating for all the world to see that the Donald has no clothes, and that he’s just a tiny little man behind a shabby little curtain pretending to be someone and something he’s not.

    And that scares Trump to death.

    • MB says:

      Speaking of Billy Barr, it was just announced that he’s considering legal action against governors who are intending to violate Trump’s May 1 re-opening order.

      Should be quite a spectacle.

      • PieIsDamnGood says:

        Expect this to be another announcement that fades away. Does he have any real standing to sue states over this?

      • Peterr says:

        Got a link to that announcement? It reeks of “just tell the press what the boss wants to hear.”

        As for Barr: what federal law would a governor be charged with, pray tell?

        • harpie says:

          Hi Peter,
          Here it is from Bloomberg:
          Barr Threatens Legal Action Against Governors Over Lockdowns
          https://bloomberg.com/news/articles/2020-04-21/barr-says-doj-may-act-against-governors-with-strict-virus-limits
          April 21, 2020, 12:24 PM Updated on April 21, 2020, 1:41 PM

          […] AG Barr: “If we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them. And if they’re not and people bring lawsuits, we file statement of interest and side with the plaintiffs.” […]

          Just Security has this up:
          Governors and Mayors, Beware: Lawsuits Opposing Coronavirus Mitigation Orders Are a Real Threat
          https://www.justsecurity.org/69689/governors-and-mayors-beware-lawsuits-opposing-coronavirus-mitigation-orders-are-a-real-threat/
          David Golove April 15, 2020

            • timbo says:

              Doesn’t Barr have standing through the states commerce and necessary and proper clauses though… based on an interpretation of various enacted Federal laws? At least in theory he would, right? I am reminded of the broad application of various Civil War era laws in the banking sector that the Bush II regime used to help the big banks consolidate power as just one example of the use of such powers in recent decades.

        • harpie says:

          Steve Vladeck has this to say about it, agreeing with bmaz, I think [?]:
          https://twitter.com/steve_vladeck/status/1252659350763683842
          2:03 PM · Apr 21, 2020

          #SCOTUS has regularly upheld neutral state laws that burden interstate commerce (like shelter-in-place orders) so long as the burden is not “clearly excessive in relation to the putative local benefits.” https://law.cornell.edu/supremecourt/text/397/137
          Public health is quite a compelling local benefit.

          That’s not to say that shelter-in-place orders don’t raise *other* federal constitutional concerns; many of them clearly do.

          But the idea that the real infirmity is that they run afoul of the so-called “Dormant” Commerce Clause is, to me, an especially weak argument.

          • bmaz says:

            Yes. And I think the 10th Amendment (wildly overplayed by the right wing nutters, but still relevant) and its nod to state’s rights versus federalism, is controlling.

            • P J Evans says:

              You would think a party that, in the last 30 years, has built its foundation on small government and states’ rights, would be a little more aware of what they’re actually saying to the rest of us.

              • FL Resistor says:

                There does not appear to be much self-awareness from the Republican side, particularly under the reign of their annointed all powerful executive, Donald Trump, who is able to say something on national television that he subsequently denies ever saying at all.

            • BobCon says:

              Is there much risk that a hack like Judge Rao or even a larger panel overturns state bans and the Supreme Court doesn’t get around to dealing with it until after the election?

              Although I have the nagging fear that this whole debate is going to be made irrelevant by the virus, which is going to knock down all of the grand plans of Trump and Kemp and the rest to open prematurely.

              • MB says:

                Maybe Kemp is planning on innovating new tehcnologies that allow for social distancing at tattoo and massage parlors as well as nail salons. The mayor of Atlanta is pleading publicly today for Atlanteans to stay away from bowling alleys when they open up on Friday. And a great headline from the Washington Post today: “Georgia leads the race to become America’s No. 1 Death Destination”

                • Vicks says:

                  Kemp is just pandering for right wing approval.
                  It’s a grand gesture to get people talking but unless salons have been working on robotic hair cutting it’s not going to happen.
                  It’s a stupid Trump play and like clockwork the media fell for it,
                  They just need to shut this stuff down and move on.
                  Too much time to fill I guess.

                • vvv says:

                  Sadist that I am, or perhaps masochist, I greatly enjoyed (in a relative sense) Birx’ attempt to answer press questions about GA hair salons and tat parlors. Her answer was to the effect that she/they strongly recommend that the guidance of social distancing be followed, but that people are creative and she did not want to say that they could not figure out a way to do things like hair styles, manicures and tats. She is much more concerned about pleasing the failing pres then Fauci, who has not been seen at the last couple coronavirus campaign rally events.

        • MB says:

          Bill Barr is a true trojan horse. He got snuck into government based on his past semi-reputable resume and the willingness of senators to give him a pass based on the person he used to be. If anybody was looking hard at him before confirmation, all the signs of who he is now were actually visible. It was a 54-45 vote, which means 2 Democrats voted for him…

          • OldTulsaDude says:

            IANAL but I would think that the life, liberty, and the pursuit of happiness would override any need to “…give businesses more freedom to operate…”

          • Rayne says:

            It was three Democrats. Joe Manchin (WV), Doug Jones (GA), and Kyrsten Sinema (VA) voted to confirm Barr. Could have expected these conservaDems to do this though Jones was more of a dark horse.

            Rand Paul (R-KY) voted against Barr.

            • MB says:

              I can kind of forgive Jones and Sinema, only because they are newbies in the Senate. Manchin has no excuse – he had to have been aware of Barr’s proclivities. At any rate, he’s been let loose to play his part in the attempted destruction of the Justice Dept.

              • Rayne says:

                I don’t forgive Jones and Sinema. Your earliest days in office are when you align with your party to earn their trust and their support when re-election comes up. If you need to swing conservative, do it toward the end of your term, abstain as necessary.

                And the AG is one of those roles that shouldn’t be given to the president just because he made the choice. The Senate has the power of Advice and Consent and it should exercise it.

                • MB says:

                  Well, like Manchin, Jones and Sinema calculated that pandering to the purple-ness (in the case of Arizona) and the red-ness (Alabama) of their respective states was a more politically expedient move than aligning with the center of their chosen party. “Big Tent” considerations aside, when a political party comfortably hosts opposing views within itself, that amounts to the normalization of both-siderism. But then, ideological “purity” has ruined the GOP.

  2. Jackknife of Sarlona says:

    The government lawyer mentioned in this article, Jonathon Kravis, is one that resigned from the DOJ over changes to Stone’s sentencing recommendation.

    Today, he was hired by Karl Racine, the AG for D.C. as Special Counsel for Public Corruption. It is my understanding that Racine is not under the authority of either Barr or Trump.

    I apologize if this seems like a stupid question, but I’m curious. If Judge Walton determines that Barr lied, or if other crimes should surface, could Racine choose to prosecute Barr?

    • emptywheel says:

      I don’t think so. But Kravis might be able to look at corruption happening in local businesses, such as the one at 1100 Pennsylvania Ave.

      • Jackknife of Sarlona says:

        Thank you for the response, Marcy. I’m just not sure of Racine’s actual authority of what he can or can’t prosecute.

        • emptywheel says:

          Another story on this said false claim actions and illegal influence misdemeanors. If I were Kravis I’d just go sit at the bar at Trump International handing out tickets for everyone buy Trump’s favor.

          • bmaz says:

            Well, I’ve been thinking about this since yesterday. You know why Kravis will have jurisdiction to investigate? Taxes baby, taxes! They have a local “state” tax and that gives Kravis a basis to investigate.

      • tinao says:

        An oh yeah, HAPPY EARTHDAY EVERYONE! I’m planting mt laurel today. Plant something if you can and make more oxygen.

          • tinao says:

            Oh that sounds wonderful PJ. I have a lemon or orange tree, I’m not sure which it is I inherited. I drag it inside during fall and winter and haven’t put it out yet, still too chilly here for it.

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