A federal appeals court on Friday ordered the Department of Justice (DOJ) to release a 2019 internal memo that then-Attorney General Bill Barr had reviewed before deciding whether to prosecute then-President Donald Trump for obstruction of justice in relation to the Mueller special counsel investigation.
"Attorney General Barr cited this memo as a reason not to charge President Trump with obstruction of justice," CREW spokesperson Jordan Libowitz said in a statement. "The American people deserve to know what it says. Now they will."
Judges Reject DOJ's ArgumentThe memo was sent to Barr on March 24, 2019, from the head of the Justice Department’s Office of Legal Counsel and another senior department official—then-Assistant Attorney General Stephen Engel, and then-Principal Associate Deputy Attorney General Edward O’Callaghan, respectively.
She concluded that the memo represented “strategic, as opposed to legal advice” and would fall outside the scope of the exemption. Jackson added that the memo, which she reviewed in full in private, "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."
The appeals court panel's decision on Friday affirmed Jackson's decision by rejecting the DOJ's appeal, saying that "the district court did not err in granting judgment against the agency." Similar to Jackson, the panel asserted that Barr as well as Mueller had already concluded that a sitting president could not be criminally prosecuted, and that the memo did not contain any legal analysis about whether Barr should pursue charges against Trump.
"Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court—what, if anything, to say to Congress and the public about the Mueller Report," Chief Judge Srinivasan, joined by Judges Judith Rogers and David Tatel, wrote in their decision.
The judges added: "The Department’s submissions in the district court gave no indication that the memorandum related to Attorney General Barr’s decision about making a public statement on the Mueller Report. Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege."
Memo to BarrOn March 24, 2019, when the memo was sent to Barr, he released a four-page summary of then-special counsel Robert Mueller’s report on the investigation into alleged collusion between the Trump campaign and Russia in the 2016 presidential election.
Barr said that he and Rosenstein had reviewed Mueller's report and consulted with department officials including the Office of Legal Counsel before coming to their conclusion.
The appeals court in its decision on Friday noted that during the litigation, the DOJ "produced fifty-six pages of records (with redactions) and withheld 195 pages in full," and after some time, CREW only contested the DOJ's withholding of two internal memos. The district court later upheld the DOJ's withholding of one of the memos, which left only the March 2019 memo in dispute.