Judge orders release of Trump obstruction memo, accuses Barr of deception

A federal judge has ordered the Department of Justice (DOJ) to release a March 2019 legal memo clearing former President Trump of potential obstruction of justice charges following the Mueller investigation, with the judge accusing former Attorney General William Barr and agency lawyers of deceiving the public.

District Judge Amy Berman Jackson on Monday ordered the DOJ to release the legal memo within two weeks in response to a Freedom of Information Act lawsuit filed by the liberal watchdog group Citizens for Ethics and Responsibility in Washington (CREW).

The DOJ had argued in court that the full memo — portions of which have already been released — should be withheld because it falls 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 scathing 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.

CREW filed its lawsuit in May 2019 seeking internal DOJ documents regarding Barr’s public statements around the release of the Mueller report. During the Trump administration, the Justice Department fought back vigorously against the lawsuit, but it’s unclear how the agency intends to handle the case following the decision, which can be appealed.

A spokeswoman for the Justice Department declined to comment.

The 2019 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 maintained since at least the Nixon era that criminal charges cannot 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 Mueller 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.”

The judge cited internal emails that showed the OLC memo and Barr’s letter to Congress were being prepared at the same time and by the same officials, further casting doubt on the DOJ’s argument that the memo should be shielded from the public as part of an internal process to help government leaders make an official decision.

Jackson also said that the memo did not just contain legal advice but was a blend of legal and strategic recommendations about how Barr should handle the Mueller report.

“Along with the redacted portions of the memorandum, the chronology undermines the assertion that the authors were engaged in providing their legal advice in connection with any sort of pending prosecutorial decision, and this misrepresentation, combined with the lack of candor about what any legal advice provided was for or about, frees the Court from the deference that is ordinarily accorded to agency declarations in FOIA cases,” the judge wrote.

The judge did not say in her decision whether the misrepresentations she believes the DOJ made in court warrant sanctions against its attorneys.

Jordan Libowitz, a spokesman for CREW, said in an emailed statement that the 2019 memo “is a key piece to understanding the Department of Justice’s actions around potential obstruction of justice charges for then-President Trump,” adding, “We are grateful that the judge agreed that the public deserves to see it.”

Monday’s ruling is not the first time a federal judge has questioned Barr’s honesty about the Mueller report. In a decision last year regarding a separate FOIA case, District Judge Reggie Walton said that Barr’s early comments about the report were inconsistent with its actual findings.

“The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary,” Walton wrote in his decision.

“These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility,” he added.

Updated at 4:15 p.m.