A federal judge has ordered the Department of Justice (DOJ) to release a March 2019 legal memo that advised then-Attorney General William BarrBill BarrDOJ slow to resolve Trump-era legal battles Former Barr spokesperson at DOJ hired to be Fox News Washington editor Georgia elections official slams Arizona audit as ‘neither transparent nor, likely, legal’ MORE that the special counsel’s investigation did not support prosecuting former President TrumpDonald TrumpWill Biden provide strategic clarity or further ambiguity on Taiwan? Taliban launches massive offensive after missed deadline for US troop withdrawal Republicans urge probe into Amazon government cloud-computing bid: report MORE, issuing a scathing decision that accused Barr and department lawyers of deceiving the public.
District Judge Amy Berman Jackson on Monday ordered the DOJ to release the legal memo in two weeks in response to a Freedom of Information Act lawsuit filed by the liberal watchdog group Citizens for Ethics and Responsibility in Washington.
The DOJ had argued in court that the full memo, portions of which have already been released, should be withheld because it fell under exceptions to the public records law for attorney-client privilege and deliberative government decisionmaking.
But Jackson said on Monday that those claims were not consistent with her own review of the unredacted memo or the timeline revealed by internal emails among top Justice Department officials.
Jackson, who was appointed to the federal district court in Washington, D.C., by former President Obama, wrote in a 41-page decision that “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.”
“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,” she added.
The memo was prepared by the Office of Legal Counsel (OLC), a section of the Justice Department that provides the entire federal government with binding, and often secret, legal interpretations.
The OLC has held since at least the Nixon era that criminal charges could not be brought against a sitting president. The office reaffirmed that position in a 2000 legal memo.
On March 24, 2019, Barr sent a four-page letter to Congress purportedly summarizing the conclusions of the investigation that had just recently been concluded by then-special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN’s Toobin warns McCabe is in ‘perilous condition’ with emboldened Trump MORE into Russian meddling in the 2016 presidential election. Barr was later widely criticized for spinning the investigation’s findings, which would not be made public for another three weeks, in a way that cast Trump in a positive light.
In his letter to Congress, Barr said that he had determined after consulting with the OLC that the facts of the investigation did not support bringing obstruction of justice charges against the president, regardless of what the office had previously said about whether such a prosecution would be constitutional.
But in Jackson’s decision on Monday, the judge said it appeared that it was a foregone conclusion among DOJ leadership that there would be no prosecution against Trump.
“Moreover, the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all,” she wrote. “In other words, 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.”
Updated at 2:58 p.m.