The Justice Department told a federal court on Monday that it intends to partially appeal a ruling requiring the release of a legal memorandum prepared by the Trump-era Justice Department for then-Attorney General William Barr to assist in his decision on whether to prosecute then-President Donald Trump for obstruction of justice during the Mueller special counsel investigation.
DOJ attorneys on late Monday filed a “Notice of Appeal” and a request to partially stay the court order while the case plays out. In their request, the attorneys said they were willing to release the entirety of the first page and a section of the March 24, 2019, internal memo but asked for the other redacted portions to remain hidden from the public.
The attorneys explained (pdf) that the department may have “incorrectly described the nature of the decisional process” that Barr was engaged in when he referred to the memo in their filings, adding that it was the imprecision in its description of the decisional process is what led to the court to determine that the memo should not be protected by the deliberative process privilege.
The department withheld the March 24, 2019, memo, claiming that it should be exempt from disclosure under the Freedom of Information Act because it contained the private advice of lawyers and was produced prior to any decisions that were made.
A DOJ Office of Legal Counsel special counsel Paul Colborn said in a declaration in the court that the “advice and analysis is predecisional because it was provided prior to the Attorney General’s decision in the matter, and it is deliberative because it consists of advice and analysis to assist the Attorney General in making that decision.”
But U.S. District Judge Amy Berman Jackson in Washington, an Obama appointee, rejected the argument, saying that at the time Barr received the memo, he and the writers had a shared understanding over the decision not to prosecute Trump, and, therefore, the document wasn’t “predecisional.”
“The redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all,” Jackson wrote (pdf), referring to the memo she had reviewed in private.
“The review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”
She also concluded that the memo represented “strategic, as opposed to legal advice” and would fall outside the scope of the exemption.
The judgment comes in a case brought by the nonprofit organization Citizens for Responsibility and Ethics in Washington (CREW), which had filed a public record request for information Barr had reviewed prior to his public announcement concerning special counsel Robert Mueller’s report on allegations that the Trump campaign had colluded with Russia in the 2016 presidential election.
CREW’s request was made after Barr told Congress on April 18, 2019, that the evidence produced by Mueller couldn’t sufficiently establish that Trump had committed an obstruction of justice offense. Barr said at the time that he made the decision after “carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers.”
The organization was seeking the documents used in those consultations with department lawyers.
If the court rejects the request, the DOJ is also seeking to allow the redacted portions of the memo to remain hidden until the D.C. Circuit Court rules on a potential request to stay the district court’s ruling pending appeal.