In ruling for @CREWcrew in a FOIA case seeking an OLC memo related to whether Trump could be indicted for obstructing the Mueller investigation, Judge Amy Berman Jackson says the (Trump) DOJ lied to her by saying it was predecisional when the decision had already been made. /1
When DOJ grudgingly showed her the memo, she saw that it was about actually strategy and arguments for Barr to quash the idea, which he had already decided to do - not predecisional as DOJ had told her in a sworn affidavit./2
ABJ says the evidence in the record contradicts what DOJ said, and shows bad faith. /3
She links DOJ misleading her about the memo to how Barr was disingenuous the public about the Mueller report, as Judge Reggie Walton has previous explained in depth. nytimes.com/2020/03/05/us/…
Notably, in a separate FOIA case brought by the NYT for WH Office of Management and Budget docs related to the freeze on aid to Ukraine that led to Trump's first impeachment, the same judge said DOJ lied to her about their contents, too. pacer-documents.s3.amazonaws.com/36/213164/0451…
Litigating FOIA cases -- where the govt says a doc falls under an exemption & so can be lawfully withheld -- relies upon DOJ & govt affiants being honest when describing its contents in sworn court statements. Here are two cases in which that system has demonstrably broken down.
Judges in FOIA cases should routinely demand to read the doc in question rather than deferring, sight unseen, to the government's claims about its contents when arguing that something is exempt and a case should be dismissed.
The sanction for discovering govt officials lied to the court should be more than ordering release of the doc. Limiting the penalty to release creates an incentive to lie about embarrassing docs: at worst, they will come out after a long delay that depleted their relevance. /end
P.P.S. In that same ruling in our FOIA case for the OMB/Ukraine/impeachment documents, Judge Amy Berman Jackson pointed out a third recent such discovery, in a February ruling by her colleague on the same district court for DC, Judge James E. Boasberg
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Next in our reported-out 2025 Trump policy stakes series went up this a.m. and will be Sunday NYT front: the prospect of withdrawing the USA from or gutting NATO, abandoning Ukraine and a retreat from Europe. w/ @jonathanvswan & @maggieNYT
Gift link: nyti.ms/3uSNafa
We've been working on this series for 6 months & have been gratified lately to see others start to join in the conversation. We have been determined to stay grounded in what Trump & his truly close advisers have said & to add substantive reporting. Gift links to other chapters:/2
June 15: Trump plans to use the Justice Department as an instrument of vengeance against his adversaries, ending of the post-Watergate norm of DOJ investigative independence from the White House political control./3 nyti.ms/47RfJrQ
Seeing folks portraying it as a problem or gotcha that Garland appointed Weiss – a sitting US attorney – special counsel even though a 1999 regulation for special counsels has a provision that envisions them being appointed from outside government. Here's an explanation. /1
Takeaway up front: that part of the reg hasn't been understood to impose a controlling limit. It’s a tell that a commentator is not a credible & good-faith source of info if he doesn’t mention that Durham was *also* a sitting US attorney when Barr made him special counsel. /2
An attorney general’s legal authority to appoint someone to run a special investigation doesn’t come from the regulation. It comes from statutes enacted by Congress. Those laws don’t say that appointee has to come from outside government. /3
It occurred to me that one of the dishonest things about @marcthiessen’s column that I pointed out yesterday was actually even more egregious and is another affirmative factual error (a charitable word choice) that the WP should correct./15
When he backed his criticism of the FBI's decision to open a full investigation by misleadingly citing a passage about warrant renewal applications, Thiessen inserted "[the Trump campaign]” into a quote from the report. In context, "the target" instead meant Carter Page./16
Ironically, this comes in the same graph that falsely says the FBI presented a doctored email to the FISA court as evidence. That's wrong–it was not shown to the court–but Thiessen himself demonstrably presented a falsely doctored Durham report quote to WP readers as evidence./17
.@marcthiessen wrote a shoddy Washington Post column using as a foil the headline of my piece yesterday assessing how the Durham inquiry fell flat after years of political hype. (He didn’t engage with its substance, of course.) A dissection follows. /1 washingtonpost.com/opinions/2023/…
As an initial matter, Thiessen got his start at a lobbying firm that included two named partners – Paul Manafort and Roger Stone – who were convicted of felonies in the Russia investigation & pardoned by Trump. He does not disclose that conflict to the WP’s readers. /2
Thiessen opens by insinuating that I am downplaying Durham bc I'm implicated in (his tendentious portrayal of) the media’s Trump-Russia coverage. Aside from whether he is accurately describing Mueller's complex findings, I wasn't part of the NYT’s Trump-Russia coverage team./3
In 1999, when I went to work for The Miami Herald as a cub reporter just out of college and he was its publisher, he took a mentor-like interest in me. We got to know each other over occasional dinners/drinks, a Miami Heat game, etc. /2
In late 2001 or early 2002, when I was thinking about applying for a Knight Foundation journalism fellowship at Yale Law School, he encouraged it (he has a law degree from Penn) and wrote a strong letter of recommendation that really helped me stand out from the pack. /3