The Bloomberg PLC (Bloomberg) A federal appeals court in the United States has ordered the Department of Justice to make public a memo it prepared for Attorney General Bill Barr in 2019 regarding how to respond to the conclusion of the Mueller investigation and the Department’s decision not to charge President Donald Trump.
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A three-judge panel from the Washington, D.C., appeals court ruled on Friday that the Department of Justice’s attorneys had initially given an inaccurate description of a document from March 2019, and thus the lower court’s order that the document be made public was upheld.
According to the district judge, she was misled into thinking that the Justice Department was seriously considering whether to bring charges against Trump, when in fact the memo was about the kind of public statement Barr should make over the findings of special counsel Robert Mueller.
After finishing his investigation into Russian interference in the 2016 election and whether Trump tried to meddle in the probe, Mueller sent a memo to Barr. Barr stated that there was “not sufficient” evidence to prosecute Trump after the Mueller team did not recommend charging him.
In response to a public records request by the watchdog group Citizens for Responsibility and Ethics in Washington, the Justice Department had argued against releasing the full text of the Office of Legal Counsel’s memo to Barr (CREW). The department claimed the memo was privileged because it contained sensitive, pre-decision deliberations about whether Trump could be charged with obstructing the special counsel’s probe, US District Judge Amy Berman Jackson ruled last year.
The memo was released with redactions, and Jackson agreed to keep the rest secret pending the outcome of the government’s appeal.
After further investigation, however, it became clear that the memo was not about the department’s “public messaging” over the Mueller report, as the US Court of Appeals for the District of Columbia Circuit noted in its decision on Friday.
A “major victory for transparency,” according to CREW.
Attorney General William Barr “cited this memo as a reason not to charge President Trump with obstruction of justice,” spokesperson Jordan Libowitz said in a statement. “The people of the United States have a right to know its contents. Right about now, too.
A spokesperson for the Justice Department refused to comment on the matter.
Any analysis in the memo about bringing obstruction charges was more like a “thought experiment,” DC Circuit Chief Judge Sri Srinivasan wrote, joined by Judges Judith Rogers and David Tatel.
Srinivasan wrote that while the department “expressed regret” for giving the “misimpression that an actual charging decision was under consideration,” it missed opportunities to address the memo’s true purpose.
The government’s request for a new hearing to argue that the full memo should remain classified was denied by the court. Srinivasan wrote that the Justice Department might have been able to keep the memo secret if it had disclosed the public messaging purpose up front and then tried to invoke the so-called deliberative process privilege, but that it was too late for that now.
Court of Appeals for the District of Columbia Circuit case number 21-5113: Citizens for Responsibility and Ethics in Washington v. United States Department of Justice (Washington).
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