Special counsel Robert Mueller and his deputy Andrew Weissmann filed a three-page notice on Monday arguing that Alex Van Der Zwaan should not be allowed to file Freedom of Information Act (FOIA) requests related to the ongoing Russia investigation.
As the notice points out, Van Der Zwaan originally agreed to waive his rights to “request or receive” such records from the government during his plea agreement. In the notice, Mueller claims his legal arguments are being filed because the court “drew attention” to a similar waiver agreement during Richard Gates‘ recent arraignment.
That’s likely true, but it strains credulity to think there’s not at least something else going on behind the scenes here. One plausible scenario: Van Der Zwaan’s attorneys have signaled their intent to challenge the government’s FOIA waiver because there’s not much in the way of precedent that actually binds the court to enforce the waiver.
Such waivers are generally considered enforceable, but this is a hotly contested body of law and civil libertarians–as well as defense attorneys–frequently press the issue in the U.S. court system. The Supreme Court has yet to rule on the exact question, so consider this all in flux. In a pointed bit of opinion from Price v. DOJ Attorney Office, where a waiver was found unenforceable, the D.C. Circuit noted:
To be clear, we do not hold that FOIA waivers in plea agreements are always unenforceable. We simply hold that the government may not invoke Price’s FOIA waiver as a basis for denying him access to the records he requests because, in this case, the government has given us no adequate rationale for enforcing this waiver in light of the public-policy harms Price has identified. That’s it.
Therefore, the law on point suggests that such waivers can only be enforced when the government can articulate cognizable criminal justice concerns that outweigh the public’s sacred right to information.
Mueller’s notice is aware of the law here–and apparently scared of it. But does the notice outline sufficient criminal justice concerns that could plausibly defeat Van Der Zwaan’s rights? Not really.
The anti-transparency filing reads, in relevant part:
[S]trong interests support the government’s and defendant’s agreement to include this particular waiver, which is limited to the “duration of the Office’s investigation.” The conduct underlying van der Zwaan’s plea arose in the context of an ongoing investigation–indeed one part of a larger ongoing investigation. A waiver that is limited in duration to the remainder of this Office’s investigation thus prevents a defendant from taking further actions that could interfere with the Office’s work. It prevents a defendant, for example, from effectively seeking discovery while the investigation is ongoing.
This is a high water mark for prosecutorial hubris. The government is constitutionally bound to provide criminal defendants with potentially exculpatory evidence or any evidence that may be favorable to them. Here, Mueller has attempted to pull a slight of hand with a classic and dirty lawyer’s trick. Mueller, of course, understands that the constitutional mandate known as the Brady Rule is, well, mandatory.
So, Mueller plays innocent by crowing about the “duration” language used in the original waiver agreement and implies that Van Der Zwaan’s inability to access records related to his case is only a temporary setback. But let’s get a bit real here: Mueller’s case isn’t ending any time soon and the nature of Van Der Zwaan’s legal trouble (he signed a guilty plea) means this durational language is of very little importance.
In other words, Mueller has created a false time line and scenario which makes it look like his office’s anti-transparency efforts are simple and plain but simultaneously shrug-worthy and deathly necessary. But that’s not all.
To be clear: there are nine statutory exemptions which would likely frustrate any potential FOIA request filed by Van Der Zwaan during the ongoing investigation. Whether an appeal to a denied request might force some discovery later in time is an open question and highly fact-specific but that’s not really the issue here. The issue is that Van Der Zwaan is barred from even filing FOIA requests because Mueller has a problem with transparency.
Mueller’s court notice employs language akin to statutory FOIA exemption language but this is too clever by a quarter at least. There’s no need for FOIA exemption language because under the waiver agreement, Van Der Zwaan isn’t allowed to even access the FOIA regime.
Furthermore, Mueller’s argumentation is ridiculous in the extreme. The filing continues:
[T]he waiver conserves the scarce resources of the Special Counsel’s Office by avoiding the drain on members of the Office who might be called upon to assemble records and to help explain to other both their significance and the potential that their release could harm the ongoing investigation.
Let’s dispense with this insulting subterfuge as quickly as possible.
In a criminal prosecution and otherwise, the government effectively has unlimited resources. As of December last year, Mueller’s investigation had ballooned to roughly $7 million worth of Justice Department funds. The Justice Department’s budget for Financial Year 2017 was nearly $28 billion. The final argument in Monday’s notice reads:
Additionally, van der Zwaan is in an unusual position of having information related to the Office’s investigation that is not widely known–including information that he knows first-hand due to his role in the conduct the Office is investigating. That kind of information could be used by a defendant to submit highly targeted requests or even requests designed to impose burdens on the Office. And requests filed by someone with non-public information could, themselves, suggest to third parties investigative facts that are otherwise not widely known.
This is fairly remarkable. Here, Mueller has basically offered the public policy argument for why the waiver request should not be allowed. Van Der Zwaan is a high-profile player in a high-stakes U.S. political drama that’s been drawn out longer than most observers expected. His perspective and knowledge, to a large degree, is actually exactly what the public wants.
Mueller’s shook-sounding warning that “requests filed by someone with non-public information could, themselves, suggest to third parties investigative facts that are otherwise not widely known,” is really just a very apt summation and description of how FOIA laws work in tandem with the news media. Or, in other words, If Alex Van Der Zwaan even attempts to file a FOIA request, journalists might be clued in to information that Mueller doesn’t want them to know about.
The FOIA regime relies upon information requesters having some sort of insight into or familiarity with an issue before they file their requests–and those requests have to be fairly specific. Third parties (re: the news media) frequently learn information from requests they never even thought about filing in the first place. This is literally just how everything works. That Mueller is repackaging this civics lesson as some sort of potential bad is telling.
The additional blather about “highly targeted requests…designed to impose burdens on the Office” is more of the same. Defendants are allowed to–and expected to–impose burdens on the prosecutors who are after them. Notably, however, FOIA laws delineate an exemption more or less along these lines. Again, Mueller is cynically employing the language of FOIA to foreclose against basic access to FOIA. Elementary aspects of the U.S. legal system are being transmogrified into arguments against transparency and defendants’ rights.
Every law student learns lots of pretty myths about the adversarial nature of the U.S. legal system. Maybe they really are just myths. Mueller doesn’t want a formidable adversary. He wants his targets to lay down and take it. But that’s not how justice should work. Not even–especially–not in the Trump era.
[image via Alex Wong/Getty Images]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
This is an opinion piece. The views expressed in this article are those of just the author.