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A federal appeals court has ordered the release of a secret Justice Department memo disputing whether President Donald Trump obstructed the investigation into Russian interference in the 2016 election.
The panel’s unanimous decision issued Friday echoes that of a lower court judge, Amy Berman Jackson, who last year accused the Justice Department of dishonesty in its justifications for keeping the memo hidden.
The three-judge bench, headed by Chief Justice Sri Srinivasan, said that whether there was “bad faith” or not, the government “created a wrong impression” and could not stop the release under the Freedom of Information Act.
The memo was written by two senior Justice Department officials for then-Attorney General William P. Barr, who later told Congress there was insufficient evidence to charge Trump with obstructing the investigation by special counsel Robert S. Mueller III. A redacted version was released last year, but left the legal and factual analysis under wraps.
Department officials argued the document was protected because it involved internal deliberations about a prosecutorial decision. But the justices agreed with Jackson that both Mueller and Barr had already clearly concluded that a sitting president could not be charged with a crime. The discussion was about how Barr would publicly characterize the obstruction evidence Mueller had gathered, the Justice Department acknowledged on appeal.
Judge slams Justice Department’s Barr over ‘sham’ handling of secret Trump memo
“The court’s review of the memorandum revealed that, in fact, the Department never considered filing a charge,” the panel wrote. “Instead, the memo refers to a separate decision that the government had not mentioned at all in its submissions to the court, what, if anything, to tell Congress and the public about the Mueller report.”
The court said that if the Justice Department had accurately described to Jackson the motivations behind the memo, the document could be considered protected. Federal courts generally give deference to the government in these cases.
“We have held that an agency’s deliberations about how to communicate its policies are privileged, as are its deliberations about the content of those policies,” the court wrote. But they said the government lost that argument by insisting the memo was about the decision to charge and resisting a review that showed otherwise.
“Any notion that the memorandum was about whether to say anything to the public was completely unargued, and even unmentioned” until the appeal, the court said. “We cannot sustain the withholding of the memorandum for a rationale that the Department never presented to the district court.”
Jackson chastised the government for this omission, saying that CREW’s assessment of the memo “was considerably more accurate than that provided by the Department,” even though the nonprofit had “never laid eyes on the document “.
Ultimately, Barr told lawmakers that because Mueller had declined to reach a finding of obstruction of justice, he and his deputy decided there was no evidence. When Mueller’s full report was released weeks later, his office said there was “substantial evidence” of obstruction. He also wrote a letter to Barr saying the attorney general had misinterpreted his team’s work.
Citizens for Accountability and Ethics in Washington, the nonprofit organization that sued over the document’s release, celebrated the ruling on Twitter, with a spokesman for the ethics watchdog calling it a “victory important for transparency”.
“Attorney General Barr cited this memo as a reason not to charge President Trump with obstruction of justice,” CREW spokesman Jordan Libowitz said in a statement. “The American people deserve to know what he says. Now they will.”
The court stayed the release of the memo for a week so the Justice Department can consider an appeal. The department could ask the U.S. Court of Appeals for the D.C. Circuit or the U.S. Supreme Court to keep the document sealed. A Justice spokeswoman declined to comment, as did Barr.