Patterico's Pontifications


Federal Judge: Barr’s Handling of Mueller Report Lacked Candor and Calls His Credibility Into Question

Filed under: General — Patterico @ 6:06 pm

U.S. District Judge Reggie Walton has issued an eye-opening order today directly calling into question the credibility of Attorney General William Barr, based on Barr’s misleading summary of the Mueller report.

That Barr spun the report in a dishonest fashion is not news, of course. On May 3, 2019, I wrote a long post detailing how Barr had misled the American people about the contents of the Mueller report. My post cited and concurred with another detailed article by Benjamin Wittes on the same topic.

But to hear these things spoken by a federal judge, in a published order, is another level of magnitude.

Judge Walton is hearing FOIA cases brought by the Electronic Privacy Information Center as well as by Buzzfeed and our old unreliable friend Jason Leopold. Today Judge Walton ruled that he will independently review whether the redactions in the report are proper. Judge Walton explains that when the government seeks to keep information secret and assures the court that the secrecy is for legitimate reasons, a judge will conduct in camera review of the material (review of material privately in the judge’s chambers) when there is evidence — or at least a suspicion in the judge’s mind — that the government has acted in bad faith, such that the judge cannot completely rely on the government’s representations. Judge Walton says that is the case with the redactions in the Mueller report, and sets forth in detail why he can’t rely on Barr’s representations that the redactions are for legitimate reasons:

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 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. Attorney General Barr’s decision to not only conduct a press conference but also issue his April 18, 2019 letter immediately prior to releasing the redacted version of the Mueller Report to the public on April 18, 2019, also causes the Court concern.

. . . .

[T]he 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.”

Wow. When you are Attorney General Barr, one phrase you don’t like to see in a federal judge’s published opinion is “Attorney General Barr’s lack of candor.”

Judge Walton concludes:

[T]he 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.”

That is just a stunning rebuke of the nation’s highest law enforcement official by a federal judge. (In case you are tempted to scream Obama Judge! or Unqualified Judge! please note that Judge Walton was appointed by George W. Bush and served for a time as the Presiding Judge of the United States Foreign Intelligence Surveillance Court.)


FCC to D.C. Circuit: We Are Not Bound By You on Net Neutrality

Filed under: General — Aaron Worthing @ 1:57 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

So the FCC has decided today to promulgate something called net neutrality.  I will admit I find the concept to be a solution in search of a problem.  It is exceedingly rare that the problems they cite, of network providers cutting off services like Netflix and the like to harm their competitors, even happens.  Shouldn’t we wait for this to turn into a real problem before we even think of regulating it?

But in general the Obama administration has taken the attitude that pretty much everyone and everything should be subject to regulation.  This is what I call “Democratic Totalitarianism.”

Let me give you a concrete example.  My industry (health care) and every lawyer in this country has been struggling to deal with the issue of the Red Flags rules.  These rules say that every single creditor has a legal duty to make sure his debtors are actually who they say they are.  If identify theft occurs, then the creditors are liable to the real persons being impersonated for any damages caused by this undetected identity theft.

That sounds reasonable (although debatable as policy), until you learn how broad the FTC’s definition of “creditor” was.  A “creditor,” of course, is a “person” (including artificial persons like corporations) who extended credit on a regular basis.  And what is “credit?”  According to the FTC it included any delay between rendering a good and service and collecting on it.  From the FTC’s February 4, 2009 letter:

[T]he FTC staff believes that professionals, including physicians, who regularly bill their clients, customers, or patients for their services after those services are rendered, are “creditors” under the ECOA.

Now stop and think about that for a moment.  If any delay between the service provided and payment makes you a creditor, well, then who isn’t covered by that?  Who isn’t a creditor under this interpretation of the statute?  Any person who gets paid on a semi-monthly or bi-weekly basis is a creditor.

Well, fortunately Judge Walton, in the U.S. District Court for the District of Columbia didn’t agree:

Judge Reggie Walton said he had trouble accepting the FTC’s definition of a creditor. He said that under their interpretation, a plumber who charges a customer after working on a toilet for two days would be also be considered a “creditor.”

And so Walton went on to rule against the FTC.  And anyone who reads the court’s opinion will quickly see how far off the reservation the court had gone in this matter.  Since then the case has been affirmed on appeal and Congress passed a law overruling the FTC, thank God.  But this is the needless chaos the Obama administration has inflicted upon us.

So let’s return back to the example of the FCC and the net neutrality thing.  Now never mind that the Supreme Court has cast serious doubt on the ability of the Congress to pass laws regulating this kind of activity, as a matter of law it looks even grimmer than that.  They were told specifically by the D.C. Circuit that Congress did not even give them the authority to do this.  You can read the opinion, here.  So even if it was constitutional, they still couldn’t do it.

So what this action is, is saying to the D.C. Circuit, “we don’t care what you think, we are going to do it anyway.”  It is a spit in the face.  Shouldn’t they have settle the issue of whether they could do this before trying to do this?

I won’t comment on the substantive issue, because I have not read the regulation at issue.  Even if it is as benign as its advocates say, I fear this will be the nose under the camel’s tent.  Right now, I am much more afraid of the government than Comcast.

And I want to pause and say something about the headlines on this.  For instance, in my linked story it says: FCC Gives Government Power to Regulate Web Traffic.  Well, excuse me a second, but the FCC can’t give the government any power.  The people give the government power, and the government gives that power to the FCC, not the other way around.  And how many times did people say that the FCC “passes” net neutrality?  Congress passes laws.  The FCC promulgates regulations.  But what we are seeing in the very creepy tendency in the use of our language to suggest that somehow the administrative state is greater than Congress.  The tail is wagging the dog.

Update: Thanks to a prompt from JD, I learn that even if I wanted to, I couldn’t comment on the order because no one has seen it outside of the FCC.  Well, that certainly increases my confidence that this is a good idea.  Btw, you can read the proposed orders, which might or might not look anything like the final order, here. Just chug some caffeine before you try.

[Posted and authored by Aaron Worthing.]

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