October 30, 2020

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Trump tweets demanding declassification of Russia probe questioned

Trump’s blanket statement came the day after he returned to the White House from three days of treatment for the novel coronavirus at Walter Reed National Military Medical Center in Bethesda, Md. The tweet has since created a headache for government lawyers in pending open-records lawsuits filed by news organizations seeking fuller disclosure of special counsel Robert S. Mueller III’s report and investigative materials.

Associate Deputy Attorney General Bradley Weinsheimer maintained in a court filing Tuesday that the White House Counsel’s Office informed the Justice Department that notwithstanding the president’s statement, “there is no order requiring wholesale declassification or disclosure of documents at issue.”

At Friday’s hearing, however, Judge Reggie B. Walton of the U.S. District Court in D.C. expressed bafflement at the claim that President Trump’s words were not to be believed.

“I think the American public has a right to rely on what the president says his intention is,” Walton said.

“It seems to me when a president makes a clear, unambiguous statement of what his intention is, that I can’t rely on the White House Counsel’s Office saying, ‘Well, that was not his intent,’ ” the judge said in a hearing conducted by videoconference because of the coronavirus pandemic.

Walton directed the department by noon Tuesday to clarify with Trump or “an individual who has conferred directly with the president” whether Trump had intended to order the declassification and release of Mueller report materials without redaction. The judge cited the urgency of releasing as much information as possible in the remaining days before the election.

“I think I need something more emphatic that this is, in fact, the president’s position, and not just the White House counsel’s position,” Walton said. “If we’re going to get this information out before the election, we need to get to this next week.”

The ruling came in a Freedom of Information Act lawsuit filed by BuzzFeed and CNN to obtain Mueller-probe documents.

Arguing for BuzzFeed and the journalist Jason Leopold, attorney Matthew Topic told the court, “We wholeheartedly agree.”

Justice Department trial lawyer Courtney Enlow argued unsuccessfully that Walton should not assume the White House Counsel’s Office was not acting on behalf of the president, invoking the “presumption of regularity” — the deference courts usually give to agencies carrying out their regular duties.

The hearing was not the first time that Walton — a veteran jurist who was nominated to the U.S. District Court in Washington in 2001 by President George W. Bush and is a former presiding judge of the U.S. Foreign Intelligence Surveillance Court — has sharply criticized the Trump administration’s credibility in its handling of the Mueller investigation.

It is highly unusual for a federal judge to publicly question whether the White House Counsel’s Office speaks for the president — or for that matter to challenge the honesty of the attorney general — but tweets by Trump have repeatedly conflicted with the Justice Department’s messaging.

Barr in February complained in an interview with ABC News that Trump’s tweets about prosecutors and open cases related to Mueller’s investigation “make it impossible for me to do my job” by creating a perception of political interference.

In other cases when parties sued for the release of documents that would confirm whether Trump’s claims were true, the Justice Department has successfully argued to judges that the president’s statements attacking federal law enforcement and intelligence agencies were to be taken as political rhetoric, speculation or otherwise not always literally.

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