Justice Department didn't read letters they refused to release

The Justice Department decided to keep secret on privacy grounds the resignation letters from nearly 50 U.S. attorneys ousted by the Trump administration without first reading any of the letters, public records show.

Justice Department lawyers in March denied a Burlington Free Press request under the federal Freedom of Information Act for copies of the letters, on grounds that the information in the documents was so "inherently personal" that they should be exempt from release.

But notes that Justice Department staff created while processing the FOIA request show their conclusion was based only on an assumption.

"The records being sought seem to be inherently personal and would be withheld," reads a section of the processing notes, which the Burlington Free Press obtained through a separate FOIA request. The analyst who first reviewed the request consulted with a supervisor, who agreed, according to the notes, "and advised to respond with a blanket denial."

The Justice Department's original message declining to release the resignation letters used more direct language that offered no indication the denial was based on a guess about the content of the letters.

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"The records you have requested are inherently personal and protected from disclosure," senior Justice Department counsel Vanessa R. Brinkmann wrote, citing a section of the Freedom of Information Act that "pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties."

"None of this information is appropriate for discretionary disclosure," Brinkmann added.

Open-government advocates took issue with the Justice Department's initial refusal — and even more so with the agency's refusal to read the documents in question.

"Wow," said Alex Howard, deputy director of the Sunlight Foundation.

"This is about whether some of the most powerful people in our justice system are continuing to serve or not, and communicating their rationale for that," said Howard, whose Washington-based nonpartisan organization presses for government transparency.

"These are not spies coming in from the cold. These are not people who have been subject to targeted harassment or are being prosecuted for illegal actions," he added. "They're U.S. attorneys resigning from office, and the circumstances of that should be known to the public."

Sanders: 'The public has a right to know'

The president appoints U.S. attorneys to lead regional offices that prosecute criminal cases and represent the government in civil proceedings such as lawsuits. The Senate must confirm the appointees.

The country's 93 U.S. attorneys typically step down following a change in presidential administrations. But in early March, Attorney General Jeff Sessions demanded the immediate resignations of 46 top federal prosecutors appointed by previous presidents, rather than waiting until successors were in place. A number of ousted prosecutors and Democratic politicians raised concerns about the timing.

Some prosecutors began handing in their notice as early as January. Vermont's top federal prosecutor, Eric Miller, left his job in February.

Miller told the Free Press in April that his resignation letter "was very straightforward" and did not contain any personal information that would make it unacceptable for public release.

Among the people who have joined the call for release of the letters is Sen. Bernie Sanders of Vermont. Sanders, an independent who sought the Democratic nomination for president last year, said this month he believes the American people ought to be able to read the letters.

"These letters of course should be made public," he said. "The public has a right to know what U.S. attorneys were thinking and what they were saying in their resignation letters."

That the Justice Department's FOIA staff failed to read letters "makes their argument totally bogus" that the documents contain personal information unsuitable for release.

"It's a political decision in which they don't want the American people to read what is in these letters," Sanders said.

The Justice Department has declined to comment on the situation beyond the content of letters regarding Free Press FOIA requests. An email to the press office with a list of questions went unanswered, and the department did not respond to a request to interview key players in the decision to withhold the resignation letters.

FOIA compliance

Allan Blutstein, a former Justice Department lawyer who worked on FOIA cases, noted that the Freedom of Information Act requires agencies to tell a requester roughly how much material is being withheld — something the Justice Department failed to do in the case of the resignation letters, either in communications with the Free Press, or even in internal processing notes.

That confirms, Blutstein said, that nobody at the department examined the records.

FOIA experts including Blutstein and Howard of the Sunlight Foundation also pointed to the timing of the Justice Department's denial. Staff began working on the Free Press records request March 23 and immediately began to discuss withholding the resignation letters. Later that day, according to the FOIA processing notes, the department already had decided to "issue a blanket denial" under the privacy exemption.

The denial letter was drafted March 27 and sent March 29, signed by lawyer Brinkmann.

"They're doubling down on what appears to be a bad hand," said Blutstein, who worked for Justice from 2004-09, mostly during the administration of Republican President George W. Bush. Blutstein now is vice president of FOIA operations at America Rising, a conservative political action committee.

"They're just saying, 'No matter what we find, we are going to withhold it, so go away' — which I don't think a court would endorse," he said.

The Burlington Free Press appealed the denial, arguing in part that the Justice Department could redact any private information but release the bulk of the resignation letters. The department in late May turned aside the appeal, declaring "it is reasonably foreseeable" that producing the letters at all "would constitute a clearly unwarranted invasion" of personal privacy.

The Free Press and its parent company, Gannett, are considering their options to continue pressing for the letters' release.  

FOIA processing notes regarding the appeal, meanwhile, are heavily redacted.

Contact Adam Silverman at 802-660-1854 or asilverman@freepressmedia.com. Follow him on Twitter at @wej12.