WASHINGTON — The Justice Department will partially defend a Trump-era decision to keep secret a March 2019 memo that former attorney general Bill Barr cited in concluding there wasn't enough evidence to support accusing former president Donald Trump of obstructing the Russia investigation.
A federal judge in Washington, DC, ordered the memo released earlier this month, excoriating Barr and other department officials who fought to keep it secret on the grounds that it was a “deliberative” document intended to help Barr decide whether or not to pursue charges against Trump. Calling Barr and the Justice Department “disingenuous,” US District Judge Amy Berman Jackson wrote that the memo — which the judge read over DOJ’s objection — made clear that it was a “given” that Trump wouldn’t be prosecuted, and that the officials who wrote it provided advice that was more “strategic” than legal.
In a one-page filing, the department notified Jackson late Monday evening that it would appeal her May 3 order requiring the DOJ to turn over the full, unredacted copy of the memo to the government watchdog group that had sued for its release. In a separate motion also filed Monday night, the department explained that it would appeal the complete disclosure of the memo, but would no longer oppose releasing a top section that the judge had described as giving “strategic” — as opposed to legal — advice.
DOJ then made public a new version of the nine-page memo — the first page and a half are now available, but the rest is still blacked out. In that first section, the Trump DOJ officials who wrote it summarized former special counsel Robert Mueller’s decision not to reach a conclusion about whether Trump had violated the law and should be prosecuted. The officials recommended that Barr “reach a judgment” because the public might otherwise believe that Mueller was, in fact, accusing Trump of criminal conduct if the full report eventually became public. If there was “uncertainty” about the facts or the law surrounding a proposed prosecution, that should be “resolved in favor of that individual,” the officials wrote.
Although the rest of the document remains redacted, Jackson described it as including “legal analysis in its assessment of the strengths and weaknesses of the purely hypothetical case.” In its brief Monday night asking Jackson to pause her order while they appeal, the department argued that the legal analysis was actually “predecisional” — that although it was true that an actual prosecution of Trump was not on the table at that point, given an earlier memo that concluded a sitting president is immune from prosecution, Barr was still in the process of deciding whether Trump committed obstruction.
Department officials apologized to Jackson for the “imprecision” in earlier briefs that described the memo and its purpose at the time. Whether to appeal Jackson’s order was the first time the Justice Department under Garland had a chance to weigh in on the case; it was briefed last fall before the election.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” DOJ wrote.
The case represents one of the first big tests of how far the Justice Department under President Joe Biden and Attorney General Merrick Garland will go to defend the actions of the previous administration. The conclusion of the Mueller investigation was one of the most politically consequential moments of Barr’s tenure. Democrats later accused Barr of misrepresenting and downplaying parts of Mueller’s report that were more damaging to Trump, and even Mueller himself wrote to Barr concerned about how Barr had summarized the report to Congress and the public weeks before releasing the document itself.
The decision to keep up the fight over publicly undetailed aspects of the March 2019 memo is likely to upset liberals eager to see Garland not only roll back Trump administration policies, but also shed light on how the department operated under Trump and any previously unknown instances of political interference or efforts to use the department’s power to help Trump personally avoid legal trouble. In recent weeks, the department revealed two separate instances when the Trump administration collected phone and email records from reporters at the Washington Post and CNN as part of leak investigations.
At his confirmation hearing in February, Garland spoke about “reaffirming” the department’s norms, including the need to “protect the independence of the Department from partisan influence.” Garland also talked about the Freedom of Information Act, and expressed support for policies that interpreted the public records law “generously.”
The Justice Department doesn’t automatically stop defending all of the policies and actions of a previous administration once a new president is sworn in. The department historically has had a strong interest in defending the prerogatives of any given president and executive branch agency to carry out policies and exercise their power. In public records cases, if a reporter or outside group sues an agency for refusing to turn over documents, DOJ is typically in the position of defending the agency and arguing for broad authority to decide what the public can and cannot see.
The latest case dates back to March 24, 2019, when Barr released his own four-page summary of Mueller’s report on Russian interference in the 2016 election; the department wouldn’t publish the full report for another few weeks. Barr wrote that Mueller hadn’t found proof that Russia coordinated with the Trump campaign, and that Mueller had declined to reach a conclusion about whether Trump obstructed the investigation; Barr did note that Mueller indicated the report did not “exonerate” Trump of obstruction.
Barr then announced that after reading the report and consulting with other DOJ officials, including in the Office of Legal Counsel, he had concluded that Mueller’s evidence wasn’t “sufficient” to show that Trump obstructed justice.
Citizens for Responsibility and Ethics in Washington, a government watchdog group, filed a request under the Freedom of Information Act with OLC for any records related to Barr’s decision to not prosecute Trump. According to court filings, OLC found 61 records related to CREW’s request, and turned over roughly half (with some parts redacted) and refused to release the rest in their entirety, citing various legal exceptions to the public records law.
CREW sued, and the fight eventually narrowed down to two records: one described in court as an “untitled, undated draft legal analysis,” and the March 2019 memo to Barr written by Steven Engel, the head of OLC at the time, and Edward O’Callaghan, a senior official in the deputy attorney general’s office. DOJ argued the two documents were shielded by two types of privilege — the deliberative process privilege, which covers documents that reveal internal agency deliberations before officials make a policy decision, and attorney-client privilege, which protects materials that lawyers prepare for a client.
The department had released a redacted version of the Engel memo to CREW; the unredacted part included a few lines where the officials wrote that they concluded the evidence collected by Mueller’s team wasn’t “sufficient to support a conclusion beyond a reasonable doubt” that Trump obstructed the investigation. The two recommended that Barr decline to pursue criminal charges.
The Justice Department argued that much of the memo was covered by the deliberative process privilege. In her opinion earlier this month ordering the full memo released, Jackson wrote that the contents contradicted the department’s claim that any decision-making process was actually pending at that point. Barr had already decided not to prosecute Trump, so the memo couldn’t be covered by the privilege, she found.
Jackson wrote that both Barr and the Justice Department had been “disingenuous” — Barr in his handling of the release of Mueller’s report to the public and to Congress, and the department in its representations to the court.
“The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time,” Jackson wrote.
CREW argued that emails the group received from OLC as part of the public records request undercut the department’s claim that Barr relied on the March 24 memo in reaching a decision about whether to prosecute Trump. The OLC memo was part of a broader effort to “create a narrative” that undermined Mueller and helped Trump, the group posited. Jackson agreed, writing that the emails showed that the same officials who helped Barr draft his four-page summary to Congress were involved in drafting the OLC memo at the same time.
As for attorney–client privilege, Jackson found that because Barr wasn’t truly in the process of deciding whether to prosecute Trump at that point, the memo was meant to provide “strategic and policy advice,” which wouldn’t fall under the privilege. The judge wrote that the department’s “misrepresentation” that Barr received the memo before making a decision and “lack of candor” about its contents “frees the Court from the deference that is ordinarily accorded to agency declarations in FOIA cases.”