DOJ will not appeal the release of a 2019 memo…ok to release.
WASHINGTON — The Justice Department will partially defend a Trump-era decision to keep secret a March 2019 memo that former attorney general Bill Barr cited in concluding there wasn’t enough evidence to support accusing former president Donald Trump of obstructing the Russia investigation.
A federal judge in Washington, DC, ordered the memo released earlier this month, excoriating Barr and other department officials who fought to keep it secret on the grounds that it was a “deliberative” document intended to help Barr decide whether or not to pursue charges against Trump. Calling Barr and the Justice Department “disingenuous,” US District Judge Amy Berman Jackson wrote that the memo — which the judge read over DOJ’s objection — made clear that it was a “given” that Trump wouldn’t be prosecuted, and that the officials who wrote it provided advice that was more “strategic” than legal.
In a one-page filing, the department notified Jackson late Monday evening that it would appeal her May 3 order requiring the DOJ to turn over the full, unredacted copy of the memo to the government watchdog group that had sued for its release. In a separate motion also filed Monday night, the department explained that it would appeal the complete disclosure of the memo, but would no longer oppose releasing a top section that the judge had described as giving “strategic” — as opposed to legal — advice.
DOJ then made public a new version of the nine-page memo — the first page and a half is now available, but the rest is still blacked out. In that first section, the Trump DOJ officials who wrote it summarized former special counsel Robert Mueller’s decision not to reach a conclusion about whether Trump had violated the law and should be prosecuted. The officials recommended that Barr “reach a judgment” because the public might otherwise believe that Mueller was, in fact, accusing Trump of criminal conduct if the full report eventually became public. If there was “uncertainty” about the facts or the law surrounding a proposed prosecution, that should be “resolved in favor of that individual,” the officials wrote.
Although the rest of the document remains redacted, Jackson described it as including “legal analysis in its assessment of the strengths and weaknesses of the purely hypothetical case.” In its brief Monday night asking Jackson to pause her order while they appeal, the department argued that the legal analysis was actually “predecisional” — that although it was true that an actual prosecution of Trump was not on the table at that point, given an earlier memo that concluded a sitting president is immune from prosecution, Barr was still in the process of deciding whether Trump committed obstruction.
Department officials apologized to Jackson for the “imprecision” in earlier briefs that described the memo and its purpose at the time. Whether to appeal Jackson’s order was the first time the Justice Department under Garland had a chance to weigh in on the case; it was briefed last fall before the election.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” DOJ wrote.