A federal judge’s assertions Thursday that Attorney General Bill Barr made “misleading” statements about special counsel Robert Mueller’s report sent shockwaves through the legal community.
The judge’s allegations that Barr “distorted” Mueller’s findings in a perhaps “calculated attempt to influence public discourse about the Mueller Report in favor of President Trump” was a remarkable scolding of a sitting attorney general, and one that comes as other actions Barr has taken related to Mueller’s probe have come under increased scrutiny.
Seasoned legal experts said they had never seen anything like the opinion that U.S. District Judge Reggie Walton of Washington, D.C., issued in a Freedom of Information Act case. In his stinging ruling, the judge ordered the Justice Department to produce for his own review an unredacted version of Mueller’s report because Walton couldn’t trust the government’s stated reasons for withholding redactions of the report.
What stood out to former federal prosecutors is that Walton called out Attorney General Bill Barr by name. The judge said that the way Barr rolled out the Mueller report called into question Barr’s “credibility” and thus the claims that the Justice Department now was making about the report’s redactions.
“I have never seen an attorney general called out this way before by a judge for making misrepresentations,” Harry Sandick, a former federal prosecutor, told TPM in an email.
The Justice Department did not respond to TPM’s inquiry. It’s possible that the Justice Department could appeal Walton’s opinion.
It’s not unheard for judges, including Walton, to criticize prosecutors for how they’ve handled cases. But for the Justice Department, and its top official, to be accused by a federal judge of misleading the public about a matter as high profile as the Mueller investigation suggested that the “fabric” of the criminal justice system was beginning to tear, one former federal prosecutor told TPM.
For generations, the U.S. system of justice has relied on the ability for judges to trust what federal prosecutors tell them, given the great deference afforded to the Justice Department, which is allowed to do much of its investigatory and prosecutorial work behind closed doors.
“When a judge calls out a prosecutor for falsehoods and this prosecutor is the attorney general himself, it’s indicative of the fabric of the justice system deteriorating,” Seth Waxman, a former prosecutor in the D.C. U.S. attorney’s office, told TPM.
In light of Barr’s handling of the Mueller report, and his more recent intervention in the Roger Stone case, hundreds of former DOJ officials have warned that his apparent willingness to bend the Justice Department to the President’s favor was putting its credibility in jeopardy. Walton’s order is an indication that that credibility has indeed taken a hit.
“There is a lasting cost to the Department of Justice when one administration pushes the department to do and say things that are inconsistent with its historic mission to seek impartial justice,” Sandick said. “ We saw this with Stone and we are seeing it again here.”
An appointee of President George W. Bush who had served in George H.W. Bush’s administration, Walton is no liberal firebrand. But he has shown an independent streak, as he presided over several high profile cases, including the Scooter Libby leak prosecution and the Roger Clemens steroids case.
He’s sided with the government on cases challenging the president’s executive power on national security issues. Walton’s known to be generally sympathetic to prosecutors, with a reputation for being a “long ball hitter,” meaning that he tends to hand down sentences on the harsher side of the spectrum, according to Shanlon Wu, a former federal prosecutor who practiced in front of Walton when the judge was on the D.C. Superior Court.
“He is very law and order,” Wu said, but he “does not hesitate to speak his mind.”
(Wu, now a D.C. defense attorney, briefly represented former Trump campaign advisor Rick Gates in Mueller’s probe).
Judge Walton, who is African American, has questioned DOJ’s prosecutorial tactics in the past, and has said he became a lawyer after facing racial profiling from law enforcement while growing up in a small Pennsylvania mining town.
Nevertheless, his broadside against the Justice Department for how it handled its Mueller report rollout was unlike anything legal observers have seen before — from him or from any federal judge.
Waxman called Walton’s opinion “unprecedented,” with its closest parallel being some of the judicial opinions issued against the Nixon administration.
“For a judge to call out a prosecutor and say, ‘I can’t trust the representation you are making,’ undercuts the entire criminal justice system,” Waxman said. He added that if a judge had made those kinds of assertions about a low-level “line” prosecutor, that prosecutor would be referred to the DOJ Office of Professional Responsibility, which handles accusation of prosecutorial misconduct.
“Those were the kind of statements that can destroy careers of line prosecutors,” Waxman said.
Before donning judicial robes, Walton also served in the Justice Department and was an assistant U.S. attorney in D.C. According to Wu, that perspective showed through in Wednesday’s opinion.
“I think in a lot of ways, his concerns and distaste with Barr’s actions have a lot to do with him being a former federal prosecutor,” Wu said.
In proceedings in this case and others, Walton has shown signs of frustration with the Justice Department’s recent sketchy behavior. In a separate FOIA case — where the challengers were seeking materials related to Andrew McCabe, the former top FBI official who has long been in the President’s crosshairs — Walton suggested the DOJ was trying to pull “the wool” over the judge’s “eyes” with its indecision over whether it would bring charges against McCabe.
McCabe had been investigated for a “lack of candor” in an inspector general review of leaks related to the Clinton email probe, and a line in Walton’s Thursday Mueller report opinion may have been a sly callback to that matter.
In describing Barr’s handling of the Mueller report, Walton used specifically the term, “lack of candor.”