Parties set for hearing on declassification of Mueller investigation

The foundation of a democracy is an open and transparent government. President James Madison wrote: "A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

The Freedom of Information Act is the principal federal statute that strikes the balance between the public demand for the disclosure of federal agency records and the legitimate need for government confidentiality. The dominant objective of FOIA is disclosure, not secrecy. Congress intended that the exemptions from agency disclosure generally be treated as discretionary, even when the records sought might be lawfully withheld.

This preference for disclosure and transparency is now being tested in Leopold et al. v. U.S. Department of Justice, 1:19-cv-01278 (D.D.C.). In May 2019, the plaintiffs filed a FOIA suit to secure the release of certain records relating to special counsel Robert Mueller's investigation into the Russian interference with the 2016 presidential election and related matters. More specifically, the plaintiffs asked the Department of Justice for "copies of any and all records, which includes but is not limited to FBI's 302s, emails, memos, letters, charts," used by the special counsel that went into the final report. The 302-reports summarize the investigative reports conducted by FBI agents.

On Oct. 6, the Leopold litigation took an unusual twist when President Donald Trump tweeted "I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax .... No redactions!" Judge Reggie B. Walton was not willing to accept representations from the government on the meaning and effect of the tweet. He directed the DOJ on or before Oct. 20 "to file a declaration by the President or an individual who has conferred directly with the President regarding whether the President intended to order the declassification and release without redaction of FD-302 reports prepared by the Federal Bureau of Investigation of witness interviews from Special Counsel Robert Mueller's investigation into Russian interference in the 2016 United States presidential election." The parties are ordered to appear "for a further motion hearing" via teleconference on Wednesday.

The tweet has put the DOJ in a legal box that Judge Walton is about to unravel. On its face, the tweet has ordered every document about the Mueller report declassified, with no redactions. It also has arguably waived the use of the FOIA exemptions on behalf of the executive branch. The tweet refers to "any & all" documents. Trump is the ultimate authority on declassification. Nothing in the constitution prohibits the president from declassifying or waiving the discretionary FOIA exemptions.

The sheer incompetency of running the government by tweet has been evident for some time. Trump regularly uses Twitter "to announce, describe, and defend his policies; to promote his Administration's legislative agenda; to announce official decisions ...." His administration has described it as "one of the White House's main vehicles for conducting official business" and for providing "official statements." Trump has used Twitter to notify and respond to Congress. The House Permanent Select Committee on Intelligence, for example, has been told to refer to Trump's Twitter account for information. The National Archives and Records Administration has classified his tweets as official records subject to the Presidential Records Act.

At the hearing, the DOJ is likely to be in the unpalatable position of reporting that Trump didn't "intend" the tweet to be a "self-executing order." In other words, the court shouldn't believe what he said, which is distressing but unremarkable. Given that Walton has previously criticized Attorney General William Barr for his lack of candor in connection with Barr's inaccurate summarizing of the Mueller report, one can understand the court's direction that Trump clarify the meaning of his tweet as well as the reluctance to accept the government's representations without the personal clarification. The hearing will give Trump the chance to climb out of the legal hole he has dug for himself and the DOJ.

Trump has frequently said "the Russia Hoax is dead." It's not. Through his tweet, Trump has breathed new life into the inquiry into Russia's involvement in our elections. But the broader point is that Trump continues to undermine the foundation of our democracy through the reckless use of false and misleading tweets. Twitter is no way to run official government business. 