Appeals court backs ruling to release DOJ memo on Trump prosecution

Source: Politico | August 19, 2022 | Josh Gerstein and Kyle Cheney

The court’s decision found that DOJ botched its handling of an FOIA suit from a liberal watchdog group that sought the memo.

A federal appeals court ruled Friday that the Justice Department must make public an internal memo senior lawyers there prepared in 2019 about whether then-President Donald Trump’s actions investigated in special counsel Robert Mueller’s probe of ties between the 2016 Trump campaign and Russia amounted to crimes prosecutors would ordinarily charge.

The D.C. Circuit Court of Appeals said the Justice Department failed to meet its legal burden to show that the memo from the department’s Office of Legal Counsel was part of a genuine deliberative process advising then-Attorney General William Barr on how to handle sensitive issues left unresolved when Mueller’s probe concluded in March 2019.

Trump was never charged in Mueller’s probe and the special prosecutor’s final report declined to opine on whether what he did in response to the investigation amounted to a crime.

However, some Trump opponents have called on the Attorney General Merrick Garland to reconsider the issue now that Trump is no longer president. Release of the long-sought DOJ memo could fuel those calls and draw more unwanted attention to Trump’s potential criminal liability at a time when he is besieged by a slew of other legal woes relating to his handling of classified government records, his role in inspiring many of those involved in the Jan. 6 attack on the Capitol and his broader efforts to overturn Joe Biden’s win in the 2020 presidential election.

The decision released Friday by a unanimous three-judge D.C. Circuit panel found, in essence, that the Justice Department botched its handling of the Freedom of Information Act suit from the liberal watchdog group that sought the memo, Citizens for Responsibility and Ethics in Washington.

Chief Judge Sri Srinivasan said the department’s initial claim that the memo was part of Barr’s decision on whether to prosecute Trump turned out to be inaccurate and a subsequent claim that it was intended to counsel Barr on what public statements to make about the issue came too late in the litigation.

“Ordinarily, the government would have little difficulty establishing that a prosecutor’s views about the sufficiency of the evidence form part of a privileged decisional process about whether to initiate or decline a prosecution,” wrote Srinivasan, an appointee of President Barack Obama. “This, however, is the rare case that falls outside of that typical understanding,” the judge added.

Srinivasan said the memo, co-authored by Assistant Attorney General for Legal Counsel Steven Engel and Principal Associate Deputy Attorney General Edward O’Callaghan, seemed more like a “thought experiment” because Barr decided before the memo was written that Trump would not be charged with a crime. A long-standing DOJ legal opinion rules out federal criminal charges against a sitting president.

“As the Department concedes, it never in fact considered charging President Trump with obstruction of justice or any other crime,” the judge said in a 28-page opinion joined by Judges David Tatel and Judith Rogers, appointees of President Bill Clinton.

The ruling affirms a withering opinion U.S. District Court Judge Amy Berman Jackson issued last year that ordered the document’s release and called the Justice Department’s initial arguments in the case “disingenuous.”

At the appeals court, DOJ took a different tack and contended the memo was intended to help Barr form arguments for his public statements defending his handling of the Mueller probe. Barr told Congress and reporters in March 2019 that Trump’s actions did not rise to the level that DOJ would normally prosecute, regardless of the policy against prosecution of presidents.

However, the appeals panel said the argument about the Engel/O’Callaghan memo being advice on public statements by Barr wasn’t raised by the Justice Department in front of Jackson and surfacing it once the case was on appeal was too late for it to be a sufficient reason to keep the memo secret.

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  • Consistent August 19, 2022 at 12:51 pm #55086

    Consistent August 19, 2022 at 12:58 pm #55087


    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 campaign’s dealings with Russia during the 2016 presidential election, a federal appeals court in Washington ruled on Friday.

    The unanimous ruling by a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit affirmed a federal judge’s May 2021 decision that the DOJ had improperly redacted parts of the Trump-era legal memo that should have been made public as part of a government watchdog’s records request lawsuit.

    The memo at issue was prepared at Barr’s request by the DOJ’s Office of Legal Counsel (OLC) in March 2019, ostensibly to provide legal advice that would go on to guide Barr’s decision not to charge Trump with obstruction of justice related to his alleged interference with former special counsel Robert Mueller’s investigation into his 2016 campaign’s contacts with Moscow.

    The DOJ, responding to a Freedom of Information Act (FOIA) lawsuit seeking disclosure of the memo, argued that virtually the entire memorandum and related records should be shielded under a FOIA exemption that protects internal government deliberations.

    But the D.C. Circuit Court panel on Friday, affirming the lower court’s decision, ruled that the DOJ had failed to prove that the so-called deliberative-process privilege justified keeping the records under wraps.

    The panel said the OLC memo did not in fact contain a legal analysis of whether Barr should pursue charges against Trump, but rather what, if anything, Barr should say to Congress and the public about Mueller’s voluminous findings.

    “Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege,” Chief Judge Sri Srinivasan wrote for the panel.

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