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1 Report of the Investigation Into Russian Case 1 :19-cv-01552-ABJ Document 23 Filed 05/03/21 Page 1 of 42 STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENSFORRESPONSIBILITY ANDETHICSINWASHINGTON, Plaintiff CivilActionNo. 19-1552(ABJ) ***SEALED*** U.S. DEPARTMENT OF JUSTICE , Defendant. MEMORANDUMOPINION On Friday, March22, 2019, Special Counsel Robert S. Mueller, IIIdelivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then -Attorney Generalof the UnitedStates, WilliamP. Barr.2 But the AttorneyGeneraldidnot share it with anyoneelse. Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “ summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume discusses the Russian government’s interference inthe election and any links or coordination with the Trump campaign and the almost 200 equally detailed pages of VolumeII– which concerns acts taken by then 1 Report of the Investigation into Russian Interference in the 2016 Presidential Election ( Mueller Report” or “ Report ), Volume I, https://www.justice.gov/storage/report_volumel.pdf, Volume II, https://www.justice.gov/storage/report_volume2.pdf(March2019) . 2 See Letter from William P. Barr Attorney General, to Hon. Lindsey Graham, Chairman , Committee on the Judiciary United States Senate , et al. (Mar. 22, 2019) , https://www.justice.gov/archives/ag/page/file/1147986/download . Case 1 :19-cv-01552-ABJ Document23 Filed 05/03/21 Page 2 of 42 President Trump in connection with the investigation – into less than four pages. letter asserted that the Special Counsel did not draw a conclusion one way or the other – as to whether the examined conduct constituted obstruction ,” and it went on to announce the Attorney General's own opinion that “ the evidence developed during the Special Counsel's investigationis not sufficient to establishthat the Presidentcommittedanobstruction-of-justice offense. The President then declared himselfto have been fully exonerated. The Attorney General's characterization of what he'dhardly hadtime to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphonesand Twitterfeedsto decrywhat they feared was an attemptto the ball. 3 Letter from William P. Barr Attorney General, to Hon. Lindsey Graham, Chairman, Committee on the Judiciary, United States Senate, et al. (Mar. 24, 2019), https://www.justice.gov/ag/page/file/1147981/download( March24 Letter” ) at 2 ; see also id .at 3 (“ The Special Counsel's decision to describe the facts of his obstructioninvestigationwithout reachingany legalconclusionsleaves itto the AttorneyGeneralto determinewhetherthe conduct describedin the reportconstitutesa crime. 4 March24 Letterat 3 . 5 Trump responds to Mueller report: complete and total exoneration , Reuters Staff, https://www.reuters.com/article/us-usa-trump-russia-tweet/trump-responds-to-mueller-report complete -and - total-exoneration -idUSKCN1R50U3 (Mar. 24, 2019 , 4:57 pm (quoting the President's tweet: “ No Collusion, No Obstruction , Complete and Total EXONERATION . KEEP AMERICA GREAT ! . This tweet is currently unavailable due to President Trump's permanent suspension from Twitter on January 8, 2021, see Permanent Suspension of @realDonaldTrump , Twitter Inc., https://blog.twitter.com/en_us/topics/company/2020/suspension.html (last visited Apr. 28 , 2021), and the National Archives and Records Administration is still working to make the archival tweets available to the public . See Archived Social Media Donald J. Trump Presidential Library, National Archives , https://www.trumplibrary.gov/research/archived-social media (last updated Apr. 26, 2021 ) . 2 Case 1 :19-cv-01552-ABJ Document23 Filed 05/03/21 Page 3 of 42 Even the customarily taciturn Special Counsel was moved to pen an extraordinary public rebukeon March 27 : The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions . We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations. Mueller called for the immediate release ofhis report, id., but it remainedunder wraps for another threeweeks. On April 18, 2019, the Attorney General appeared before Congress to deliver the report. He assertedthat he andthe DeputyAttorneyGeneralreachedthe conclusionhe had announcedin the March 24 letter “ in consultation with the Office of Legal Counsel and other Department lawyers. ” Id. Citizens for Responsibilityand Ethics in Washington(“ CREW ”) immediatelyfired off a Freedomof InformationAct ( FOIA ”) request for any recordsrelatedto those consultations, but the Department of Justice ( DOJ” ) demurred on the grounds of the deliberative process and attorney -client privileges. What remains at issue today is a memorandum to the Attorney General dated March 24, 2019, that specifically addresses the subject matter of the letter transmittedto Congress . 6 Letter from Robert S. Mueller, III, Special Counsel, to Hon. William P. Barr Attorney General of the United States (Mar. 27 2019) available at https://apps.npr.org/ documents/document.html? id = 5984399 -Mueller- Letter- to -Barr (“March 27 Letter” ). 7 Attorney General William P. Barr Delivers Remarks on the Release of the Report on the Investigation into Russian Interference in the 2016 Presidential Election, DOJ Justice News (Apr. 18 2019 ), https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers remarks-release-report - investigation-russian (“ April 18 Remarks” ). 3 Case 1 :19-cv-01552-ABJ Document23 Filed 05/03/21 Page 4 of 42 It is time for the public to see that, too . CREW brought this action under the Freedom of InformationAct (“ FOIA ), U.S.C. 552, against the United States Department of Justice ( DOJ” ) seeking the production of documents that Attorney General Barr reviewed in advance of his public announcement concerning the report transmitted to himby Special Counsel Mueller. Compl. [ Dkt. # 1] The complaint contained two counts : the first alleged wrongful withholding of non -exempt records, and the second requested a declaration from the Court pursuant to the Declaratory JudgmentAct, 28 U.S.C. 2201and 2202, that DOJviolatedFOIAbyrefusingto grantexpedited processing of its request. Id. CREW has accepted the bulk of the agency's withholdings, but there are still two records in dispute, and cross motions for summary judgment and defendant's renewed motion to dismiss Count Two arependingbeforethe Court. Def.'sMot for Summ. J. and Mot Dismissfor Lack of Jurisdiction [ Dkt. # 15] ( Def.'sMot ; Mem. in Opp. to Mot for Summ . J. andRenewed Mot. to Dismiss [Dkt. # 16 Cross Mot for Summ. J. [Dkt. # 17] (“ Pl.’s Cross Mot.” ). With respectto CountOne, the motionsaddress whetheritwas properfor defendantto withholdthe two recordsunderFOIAExemption5. The Court finds that the recorddesignatedas Document6 was properlywithheld, but it will orderthat Document15 be produced. As to Count Two, the parties dispute whether the claim about expedited processing is now moot, and the Court agrees with the defendant and will dismiss that count. 8 On January 31, 2020, the Court denied defendant's partial motion to dismiss Count Two. See Order [Dkt. # ]. Case 1 :19-cv-01552-ABJ Document 23 Filed 05/03/21 Page 5 of 42 FACTUALAND PROCEDURALHISTORY CREW states that it is a “ non-profit, non-partisan organization ...committed to protecting the rights of citizens to be informed about the activities of government officials and agencies . Compl. complaint alleges that on April 18, 2019 Attorney General Barr held a press conference to announce the public release of the Report ofthe Special Counsel's investigationinto Russian interference in the 2016 election and the potential obstruction of that investigation. Id. Duringthat conference, Attorney General Barr that the evidencedevelopedby the SpecialCounselisnotsufficientto establishthat the Presidentcommittedan obstruction of- justice offense. , quotingApril 18 Remarks, supra footnote 7 . Later that day, CREW submitted a FOIA request to Office of Legal Counsel ( OLC ” ), seeking “ all documents pertainingto the views OLC provided Attorney General Barr on whether the evidence developed by Special Counsel Mueller is sufficient to establish that the President committed an obstruction -of-justice offense.” Compl. The defendant conducted the necessary search, and it identified sixty-one responsive records, thirty- two of which it produced to plaintiff with partial redactions, and twenty -eight of which it withheldinfull pursuantto Exemption5. Def.'sMem in Supp. of Mot. [ Dkt. # 15-2] ( Mem .” ) at 4–5. Itreferred one recordto the Office ofInformation Policy ( ), which was later producedto plaintiffwith redactions. Id. at 5. Two of the documentswithheldinfull remain in dispute , and they are the subject of the parties motions for summary judgment. See Def.’s Mot Pl.’s Mot Defendant's motion is supported by the declaration of a Special Counsel within OLC who supervises that office’s responses to the FOIA requests, see Decl. of PaulP. Colborn [ Dkt. # 15-3] ( “ ColbornDecl. ) , and the declarationof
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