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Appeals court says DOJ improperly redacted memo to AG Barr on Trump obstruction

The Department of Justice (DOJ) improperly shielded portions of a memo to Attorney General William Barr that concerned whether former President Trump obstructed a special counsel probe into his campa



A federal appeals court in Washington ruled on Friday that the Department of Justice (DOJ) improperly withheld parts of a memo to Attorney General William Barr that addressed the possibility that the former President Trump obstructed an investigation into his campaign’s interactions with Russia in the 2016 presidential election.

The U.S. Court of Appeals for the D.C. Circuit’s majority decision upheld a federal judge’s conclusion from May 2021 that the DOJ had illegally withheld portions of the Trump administration’s legal brief that should have been made available as part of a records request lawsuit.

The DOJ’s Office of Legal Counsel (OLC) prepared the memo in question at Barr’s request in March 2019, ostensibly to provide legal guidance that would later help Barr decide not to charge Trump with obstructing justice in connection with his alleged interference with former special counsel Robert Mueller’s investigation into his 2016 campaign’s contacts with Moscow.

The DOJ argued that almost the entire document and associated materials should be shielded under a FOIA exemption that protects internal government deliberations in response to a lawsuit filed under the Freedom of Information Act (FOIA) demanding disclosure of the memo.

The D.C. Circuit Court panel, however, decided on Friday that the DOJ had failed to establish that the so-called “deliberative-process privilege” warranted withholding the information, upholding the finding of the lower court.

The OLC memo, according to the panel, did not actually include a legal analysis of whether Barr should press charges against Trump, but rather addressed what, if anything, Barr should disclose to Congress and the general public with Mueller’s extensive findings.

“The Department failed to establish its reliance on the deliberative-process privilege because the Department did not attach the memoranda to deliberations concerning the relevant judgment,” Chief Judge Sri Srinivasan wrote for the panel.

A request for comment from the DOJ did not immediately receive a response.

Whether the DOJ files another appeal—either to the entire bench of the D.C. Circuit Court or to the Supreme Court—and whether it is successful will probably determine when the complete memorandum is made public.

This sets up another politically contentious choice for Attorney General Merrick Garland, whose earlier attempt to appeal the judge’s decision requiring his department to release a document disappointed Trump detractors and prolonged the FOIA dispute that was started by the watchdog group Citizens for Responsibility and Ethics in Washington.

a.m. 11:37 update

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