Adam Silverman

Free Press Staff Writer

The Justice Department is refusing to disclose letters of resignation from U.S. attorneys who left their posts at the request of the Trump administration.

The letters — sent by public officials in response to a directive from the president and the attorney general — are so "inherently personal" that they are exempt from release, a Justice Department lawyer wrote in rejecting a Freedom of Information Act request from the Burlington Free Press.

Open-government experts questioned that reasoning.

"This is the public's business. It's not private business," said Alex Howard, deputy director of the Sunlight Foundation, a Washington-based nonpartisan organization that advocates for government transparency. "Some of the greatest power in our system, a prosecutor in the United States government — their conduct, their work, their interactions are of great public interest. Overbroad exemptions don't serve the public's interest."

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​U.S. attorneys are political appointees who lead regional offices that prosecute suspects accused of violating federal criminal law and who represent the government in civil matters such as lawsuits and forfeiture actions.

It is routine for the 93 attorneys to resign after a change in presidential administrations, and some began handing in their notice as early as January. But a number of ousted prosecutors and Democratic politicians raised objections about the timing under Republican President Donald Trump.

Last month, Attorney General Jeff Sessions sought immediate resignations from the remaining 46 U.S. attorneys appointed by previous presidents. In the past, the prosecutors had been allowed to stay on until successors were in place.

Among the U.S. attorneys who departed since Trump's inauguration Jan. 20 was Eric Miller of Burlington. He served as the top federal prosecutor in Vermont for 18 months before he announced Feb. 3 that he would step down a week later.

Miller was recommended for the job by Sen. Patrick Leahy, D-Vt., and appointed by Democratic President Barack Obama in May 2015.

"Serving as Vermont's United States Attorney has been the highest honor of my career, and I am grateful for the trust placed in me by President Obama, Senator Leahy, and the people of Vermont," Miller said in a February statement.

He told the Free Press this week that he was unable to find a copy of the resignation letter he sent to the Justice Department.

"My letter, as I suspect most of my colleagues' were, was very straightforward," Miller said. "The first sentence notified the president that I was tendering my resignation effective at midnight on February 10, and the second sentence expressed my appreciation for the trust that President Obama placed in me and the men and women who worked in the office."

Records requested, records denied

In the public-records request, the Free Press sought all resignation letters that U.S. attorneys sent to the Justice Department since Jan. 1.

"The records you have requested are inherently personal and protected from disclosure," senior Justice Department counsel Vanessa R. Brinkmann wrote in denying the request. She cited 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.

Five FOIA experts who spoke with the Free Press this week took issue with that reasoning — including a former Justice Department lawyer who worked exclusively on freedom-of-information requests and appeals.

"As a FOIA matter, this is a pretty clear-cut mistake," said Allan Blutstein, who served 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.

Blutstein said the Justice Department's denial letter and the speed with which Brinkmann sent it — less than 10 days after receiving the request — suggest department staff conducted no search for responsive records and relied instead on the belief that all the resignation letters are exempt from disclosure.

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That also means the Justice Department made no attempt to determine how much information in the letters might be "inherently personal," and whether portions of the letters could be released if personal information were blacked out, Blutstein added. In the original request, the Free Press specifically stated that personal information could be redacted to allow release of the rest of a document.

Federal law requires the Justice Department to balance an individual's privacy with the public's interest in disclosure — another step Blutstein said the Justice Department appears not to have taken.

The Justice Department declined to comment beyond Brinkmann's letter.

Adam Marshall, a lawyer with the Reporters Committee for Freedom of the Press in Washington, said the apparent lack of balancing the competing interests is striking.

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"It's hard for me to imagine what privacy interests exist in these letters, and even if it did, there's a huge amount of public interest in understanding what happened in these mass resignations and what was said and how they were conducted," Marshall said.

"To categorically say, 'No, you can't have any of this because it's too private' is ridiculous."

'A presumption of openness'

A search of the Justice Department's website returns 34 news releases in 2017 regarding the resignation of a U.S. attorney or the appointment of an acting U.S. attorney following a resignation from the top job. Many of the releases include written statements from the departing prosecutor, but none say they contain text of a resignation letter.

Some of the releases are a few paragraphs, while others cover multiple pages and include extensive accounts of the prosecutor's background and accomplishments in office.

The website also shows that 60 of the 93 federal prosecutors' offices currently are being led by acting U.S. attorneys.

Howard, the Sunlight Foundation deputy director, said the Justice Department's response to the Free Press records request violated the spirit if not the letter of freedom-of-information law, especially in light of revisions in 2016 that directed agencies to begin by assuming records should be released.

"That is not adhering to a presumption of openness. That is defaulting to secrecy," Howard said. "It is a signal from the Justice Department that they are pulling back from the commitments that Congress effectively told them to adhere to."

The Free Press has filed an appeal of the records denial.

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