A federal appeals court in Washington concluded Friday that the DOJ unlawfully withheld parts of a report to Attorney General William Barr.
This report was on whether former President Trump hindered a special counsel examination into his campaign’s contacts with Russia in 2016.
A three-judge ruling on the U.S. Court of Appeals for the D.C. Circuit confirmed the DOJ wrongly censored sections of a Trump-era legal document that should have been publicly disclosed as part of an information request case.
The Initial Investigation
The document at issue was compiled at Barr’s recommendation by the DOJ’s Office of Legal Counsel (OLC) in March 2019.
This was supposedly to guide Barr’s judgment not to prosecute Trump with criminal obstruction of justice.
This would have been linked to his alleged intervention in former special counsel Robert Mueller’s independent inquiry into Trump’s 2016 campaign’s connections with Moscow.
The DOJ under Attorney General William Barr improperly withheld portions of an internal memo Barr cited in announcing that then-President Donald Trump had not obstructed justice in the Russia investigation, a federal appeals panel said Friday. https://t.co/lBnznhWnha
— NBC News (@NBCNews) August 20, 2022
The DOJ contended the memo and accompanying information should be covered under a FOIA exception that protects internal staff deliberations.
The D.C. Circuit Court panel found Friday that the DOJ failed to show the consensus-building privilege warranted keeping the data secret.
Chief Judge Sri Srinivasan stated for the court that the DOJ failed to establish its dependence on the deliberative-process confidentiality because it did not link the memoranda to relevant decision considerations.
If the DOJ appeals to the entire bench of the D.C. Circuit Court or the Supreme Court, the whole document may be disclosed soon.
In May 2021, U.S. District Judge Amy Berman Jackson ordered the DOJ to reveal the legal document.
She made her determination after deciding the DOJ’s privilege assertions were inconsistent with her own study of the declassified memo or the timing shown by internal Justice Department communications.
In a 41-page opinion, she accused Barr and agency attorneys of misrepresenting the previous attorney general’s stance on obstruction allegations against Trump.
She noted the agency’s redactions and insufficient explanations confuse the memorandum’s actual intent. The removed passages belie the notion that the attorney general made a prosecution decision or that such a choice was ever on the table.
Internal Papers
CREW filed a lawsuit in May 2019 seeking internal DOJ papers on Barr’s assertions about the Mueller report.
Federal appeals court rules that the DOJ must make public an internal legal memo commissioned by then-Attorney General William Barr in 2019 to analyze whether he should charge then-President Donald Trump with obstruction related to the Russia investigation https://t.co/Byu2gw1aNd
— CNN Politics (@CNNPolitics) August 19, 2022
Barr submitted a four-page letter to Congress on March 24, 2019, reportedly summarizing Mueller’s findings into Russian intervention in the 2016 election. Barr was then attacked for distorting the investigation’s conclusions to bolster Trump’s image.
Barr wrote to Congress that after conferring with the OLC, he judged the probe did not support obstruction of justice allegations against the president.
Nonetheless, Jackson stated in her judgment it appeared to be a clear conclusion among DOJ officials that no prosecution against Trump would be brought. Friday, the D.C. Circuit affirmed her conclusion and underscored its narrowness.
The panel stated nothing in their ruling suggests deliberative papers connected to charging determinations are beyond the deliberative-process privilege.
In this case, when a charging resolution was concededly off the table, and the agency failed to raise an alternative justification that may have supported invoking the privilege, the district court did not overreach in issuing a judgment against the agency.
