Freedom on Information Easier to Get from D.C. Judge than Unsealed Documents in Texas Federal Court

Judge orders release of DOJ memo justifying not prosecuting Trump

Amy Berman Jackson blasts former Attorney General William Barr’s spin on the Mueller report as “disingenuous.”

MAY 4, 2021 | REPUBLISHED BY LIT: MAY 5, 2021

A federal judge has ordered the release of a key Justice Department memo supporting former Attorney William Barr’s conclusion that former President Donald Trump should not be prosecuted for obstruction of justice over episodes investigated by special counsel Robert Mueller.

U.S. District Court Judge Amy Berman Jackson issued that ruling in a withering opinion that accused Barr of being “disingenuous” when describing Mueller’s findings and found that the Justice Department was not candid with the court about the purpose and role of the 2019 memo prepared by Justice’s Office of Legal Counsel.

In response to a Freedom of Information Act lawsuit,

Justice Department attorneys argued that the memo was part of the process of advising Barr on whether Trump should be prosecuted, but Jackson said the analysis consisted of a post hoc rationalization of a decision already made.

“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,” wrote Jackson, an appointee of former President Barack Obama.

Jackson linked Justice Department’s effort to keep the memo secret to Barr’s initial descriptions of Mueller’s conclusions, declaring both efforts misleading.

“Not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege,” she wrote. “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.”

Justice Department attorneys also argued that the memo is covered by attorney-client privilege, but Jackson said much of it didn’t seem to contain legal advice or conclusions. “The Court is not persuaded that the agency has met its burden to demonstrate that the memorandum was transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege,” the judge wrote.

Jackson noted that another D.C-based federal judge, Reggie Walton, previously criticized Barr’s early description of the Mueller report. She said that criticism was “well-founded.”

Jackson released her opinion in part Monday after reviewing the memo herself, a process which she noted that the Justice Department “strongly resisted.” She withheld some portions that include the details of the memo from the version of her decision that was made public.

The Justice Department can appeal Jackson’s decision to force release of the memo.

Halliburton v. PHH Mortgage Corp.

Justice Department attorneys also argued that the memo is covered by attorney-client privilege, but Jackson said much of it didn’t seem to contain legal advice or conclusions. “The Court is not persuaded that the agency has met its burden to demonstrate that the memorandum was transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege,” the judge wrote.

Jackson noted that another D.C-based federal judge, Reggie Walton, previously criticized Barr’s early description of the Mueller report. She said that criticism was “well-founded.”

Jackson released her opinion in part Monday after reviewing the memo herself, a process which she noted that the Justice Department “strongly resisted.” She withheld some portions that include the details of the memo from the version of her decision that was made public.

The Justice Department can appeal Jackson’s decision to force release of the memo.

A department spokesperson did not immediately respond to a request for comment on the ruling. Efforts to reach the former officials named in the decision for comment were not successful.

The freedom-of-information suit Jackson ruled on Monday was filed in 2019 by Citizens for Responsibility and Ethics in Washington.

While it is unclear if it influenced her ruling, Jackson had a close-up view of one of the biggest firestorms of Barr’s tenure as attorney general: his decision to overrule front-line prosecutors and effectively withdraw their recommendation of a seven-to-nine year sentence for President Donald Trump’s longtime adviser Roger Stone on charges of lying to Congress and witness tampering.

Jackson — who was the judge in Stone’s trial — wasn’t openly critical of Barr’s move, but made clear in court that she believed it deviated from the administration’s stated policy on sentencing matters.

Jackson wound up sentencing Stone to three-and-a-half years in prison, but Trump commuted the sentence and eventually pardoned Stone outright.