Judge Reggie Walton, the former presiding judge of the Foreign Intelligence Surveillance Court was played in the case of Lewis Libby by prosecutor Patrick Fitzgerald. Among other things, Fitzgerald misled Judith Miller, a key prosecution witness, into giving false testimony against Libby. Walton appears to have been played again, this time by Jason Leopold of Buzzfeed. 

Jason Leopold, a reporter for Buzzfeed, which published the unverified and unverifiable slander of the President in the Steele Dossier, brought a Freedom of Information Act suit demanding to see the still-redacted portions of the Mueller report, the implication being there was some hidden agenda in maintaining the redactions. (As you may recall, the Mueller report included some grand jury testimony which by law cannot be made public, and the reasonable inference from the Mueller team’s delay in redacting it themselves is that they wanted to get the first word out about the report, but Attorney General William Barr beat them to the draw by releasing his summary of the report’s conclusions, something that scotched their plan to keep the game going.)

Jason Leopold, it seemed to me at the time of the Libby trial, served as the public relations front for the prosecution. (Recall his famous report that Karl Rove was going to be “indicted in 24 hours” for which it turned out he actually had no sources.) He has a long history as a fabulist, which Paul McLeary, writing for the Columbia Journalism Review, has detailed. The made-up Rove story was not the first or last of his fact free reports

When Leopold’s story was first called into question a few weeks ago, Salon’s Tim Grieve reminded readers of Leopold’s checkered history with the publication. Salon removed Leopold’s August 29, 2002 story about Enron from its site after it was discovered that he plagiarized parts from the Financial Times and was unable to provide a copy of an email that was critical to the piece. Leopold’s response? A hysterical rant (linked above) which claimed that Salon’s version of events was “nothing but lies,” and that “At this point, I wonder why Salon would go to great lengths to further twist the knife into my back. I suppose the New York Times will now release their version of the events. I can see the headline now ‘Jason Leopold Must Die.’” In other words, people are out to get him, and it’s not his fault.

Fast forward to March 2005, when Leopold’s memoir, Off the Record, was set to be released. In the book, according to Howard Kurtz, Leopold says that he details his own “lying, cheating and backstabbing,” and comes clean about how he got fired from the Los Angeles Times and quit Dow Jones just before they fired him because, as he said, it “Seems I got all of the facts wrong” on a story about Enron.

But the book was not to be. Rowman & Littlefield, the book’s publisher, cancelled production just before it went to press after one of the book’s sources threatened to sue. That source, Steven Maviglio, who was a spokesman for California Governor Gray Davis, said that Leopold “just got it completely wrong” when recounting how he allegedly told Leopold that he “might have broken the law by investing in energy companies using inside information.”

This week, Judge Walton ruled that the Department of Justice provide for his in camera review the unredacted portion of the Mueller report, noting that the law held that such review is “more appropriate in only the exceptional case, and stating in relevant portion that this was such an exception:

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. For the reasons set forth below, the Court shares the plaintiffs’ concern that the Department “dubious[ly] handl[ed] [ ] the public release of the Mueller Report.” EPIC’s Mem. at 40; see also id. (“Attorney General[] [Barr’s] attempts to spin the findings and conclusions of the [Mueller] Report have been challenged publicly by the author of the [Mueller] Report. [ ] Attorney[] General[] [Barr’s] characterization of the [Mueller] [R]eport has also been contradicted directly by the content of the [Mueller] Report.”); Leopold Pls.’ Mem. at 9 (“[T]here have been serious and specific accusations by other government officials about improprieties in the [Department’s] handling and characterization of the [Mueller] Report[.]”). Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Mueller Report to assess de novo the applicability of the particular exemptions claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA. 

On March 24, 2019, only two days after receiving the 381-page Mueller Report, Attorney General Barr represented that he was providing “a summary of [the Mueller Report’s] ‘principal conclusions.’” Def.’s Mot., Ex. 6 (March 29, 2019 Letter) at 2. In his March 24, 2019 letter, Attorney General Barr stated that “Special Counsel[] [Mueller’s] investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 [United States] presidential election,” id., Ex. 5 (March 24, 2019 Letter) at 2, and that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice in connection with Special Counsel Mueller’s investigation into Russia’s interference in the 2016 presidential election, Special Counsel Mueller “recognized that ‘the evidence does not establish that [ ] President [Trump] was involved in an underlying crime related to Russian election interference,’” id., Ex. 5 (March 24, 2019 Letter) at 3. However, Special Counsel Mueller himself took exception to Attorney General Barr’s March 24, 2019 letter, stating that Attorney General Barr “did not fully capture the context, nature, and substance of th[e] [Special Counsel’s] Office’s work and conclusions,” EPIC’s Mot., Ex. 4 (March 27, 2019 Letter) at 1, and a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report. Specifically, Attorney General Barr’s summary failed to indicate that Special Counsel Mueller “identified multiple contacts—‘links,’ in the words of the Appointment Order—between Trump [c]ampaign officials and individuals with ties to the Russian government,” Def.’s Mot., Ex. D (Mueller Report – Volume I) at 66, and that Special Counsel Mueller only concluded that the investigation did not establish that “these contacts involved or resulted in coordination or a conspiracy with the Trump [c]ampaign and Russia, including with respect to Russia providing assistance to the [Trump] [c]ampaign in exchange for any sort of favorable treatment in the future,” because coordination—the term that appears in the Appointment Order—“does not have a settled definition in federal criminal law,” id., Ex. D (Mueller Report – Volume I) at 2, 66. Attorney General Barr also failed to disclose to the American public that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice, Special Counsel Mueller “determined not to make a traditional prosecutorial judgment[,] . . . recogniz[ing] that a federal criminal accusation against a sitting [p]resident would place burdens on the [p]resident’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” but nevertheless declared that if [he] had confidence after a thorough investigation of the facts that [ ] President [Trump] clearly did not commit obstruction of justice, [he] would so state. Based on the facts and the applicable legal standards, however, [he] [is] unable to reach that judgment. The evidence [he] obtained about [ ] President[] [Trump’s] actions and intent presents difficult issues that prevent [him] from conclusively determining that no criminal conduct occurred. Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President [Trump] committed a crime, it also does not exonerate him. 

Id., Ex. D (Mueller Report – Volume II) at 1–2.
Although Attorney General Barr can be commended for his effort to expeditiously release a summary of Special Counsel Mueller’s principal conclusions in the public interest, 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. 

Grist for the media indeed, but if I have to weigh Leopold’s conjecture against the probity of Attorney General Barr, you can have no question about where I stand. 

On Friday with less, if any media coverage, the Department of Justice responded through its  spokeswoman Kerri Kupac: 

It’s not the first time Judge Walton has been misled and overplayed his hand. When he sentenced Libby and denied him bail, President George W. Bush commuted his jail sentence, and Judge Walton opined Bush’s actions create an impression of unequal justice under the law:

“I believe firmly you apply the law and apply it strictly,” Walton said from his chambers in Washington. “I don’t give white-collar criminals a pass.”

A noble concern, though in that case misplaced. What concerns me is judges like Walton who give out-of-control prosecutors a pass before D.C. jurors, jurors who, as we saw in the Libby case and have just seen in the Roger Stone case, are already by partisan bias inclined against Republican officials.