On Monday, the day before Alex Van Der Zwaan was scheduled to be sentenced under his plea agreement in the “Trump/Russia” special counsel case, Robert Mueller and deputy attack dog Andrew Weissmann filed a three-page notice arguing that Van Der Zwaan should not be allowed to file FOIA requests, which is his constitutional right under the law. Not just that they shouldn’t be granted --- he shouldn’t even be able to file them, from now till the special counsel investigation is over, conceivably years from now when we are all too old and feeble to remember our own names, let alone a name like “Alex Van Der Zwaan.”
Van Der Zwaan had already agreed not to make FOIA requests at the time he pleaded guilty on February 14 to lying to investigators about contacts with Trump campaign associate Richard Gates and a Ukrainian businessman. (Side note: the charges against both Van Der Zwaan and Gates have nothing to do with any “collusion” with Russia on the part of Trump or his campaign.) Gates made a similar agreement as part of his own guilty plea, and Mueller is now saying that the attention paid to Gates’ waiver is what leads him to file this argument now. Okay, but what is the reason for either Van Der Zwaan or Gates to have to waive their constitutional right under the Freedom Of Information Act?
Better legal minds than I (remember, I’m a layman who didn’t go to Haaaaa-vaaaahd Law) have figured out that this is one way for Mueller to clamp down especially hard to avoid transparency. You see, even if a request turns up nothing in the way of a response for many months or even years –- as seems to be the norm these days –- it’s the nature of the documents being requested that sends the media bloodhounds down the trail. Mueller is obviously doing everything in his power to hide what he’s up to.
It’s possible that Mueller and Weissmann filed their argument because they anticipate Van Der Zwaan’s attorney will challenge his FOIA waiver. Such agreements usually have been enforceable, but civil libertarians will challenge a particular waiver when they think it might not be, and the Supreme Court has yet to rule. In precedent set by Price v. United States, a waiver of one’s constitutional rights as part of a guilty plea is “not enforceable when the government cannot articulate legitimate criminal-justice interests for the waiver.” So on Monday, this special counsel tried lamely to articulate some, saying this waiver “serves manifold legitimate criminal-justice interests while minimally encumbering Van Der Zwaan’s rights for a period of limited duration.” Limited how? This investigation appears to have no limit whatsoever.
To cover all their bases, Mueller and Weissmann also request that the established precedent should not be extended to “this new context.” What, the context of this being an investigation into Trump so all the rules go out the window?
Mueller and Weissmann’s argument essentially puts the investigation in lock-down mode, hiding away potentially exculpatory or favorable evidence from Van Der Zwaan (as well as from other witnesses/potential defendants, Congress, the media, and you and me) until the investigation is completely over. What’s more, we now know that abusing the rights of defendants to have access to exculpatory material is nothing new for either of these lawyerly predators. This is business as usual for them.
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