The Justice Department announced its separate decision on the controversial memo in a brief judicial filing Submitted at around 10:30 p.m. Monday.
A department spokesman declined to comment on whether Attorney General Merrick Garland, who promised to read the Freedom of Information Act “generously” at his confirmation hearing, had signed the decision. However, the move appeared to reflect an institutional decision to take steps to protect the department’s internal deliberations on highly sensitive matters.
Earlier this month, U.S. District Court judge Amy Berman Jackson announced made a wilted opinion The latter accused former Attorney General William Barr of being “insincere” in describing Mueller’s findings and found that the Justice Department was not open with the court about the purpose and role of the memo that the law firm will post to the judiciary the investigation by Mueller had created.
Co-authors of the memo include Steven Engel, a Senate-approved Trump agent who served as assistant attorney general for the Office of Legal Counsel, and Edward O’Callaghan who served as chief adviser to assistant attorney general Rod Rosenstein. Jackson said, however, that other records make it clear that Rosenstein and Barr’s chief of staff Brian Rabbitt also contributed to the document.
In response to a Freedom of Information Act lawsuit, Justice Department attorneys argued that the memo was part of the process of advising Barr on whether to prosecute Trump, but Jackson said the analysis consisted of post-hoc rationalization a decision already made.
“The review of the document shows that the attorney general was Not then make a decision as to whether the President should be charged with obstruction of justice; The fact that he would not be prosecuted was taken for granted, ”wrote Jackson, a representative for former President Barack Obama.
Jackson linked the Justice Department’s efforts to keep the memo secret with Barr’s initial descriptions of Müller’s conclusions, and declared both efforts to be misleading.
“The attorney general was not only insincere at the time, but the DOJ was insincere to this court about the existence of a decision-making process that should be protected by the privilege of the advisory process,” she wrote statements obscuring the true purpose of the memorandum, and the statements The excised parts believe that it was up to the Attorney General to make a law enforcement decision, or that such a decision was on the table at any time. “
Justice Department attorneys also argued that the memo falls under legal and client law, but Jackson said much of it did not appear to contain any legal advice or conclusion. “The Court is not convinced that the Agency has fulfilled its burden of proof that the memorandum was sent for the purpose of providing legal advice, as opposed to providing strategic and policy advice, which is outside the scope of the privilege,” the judge wrote.
Jackson noted that another DC-based federal judge, Reggie Walton, had previously criticized Barr’s early description of the Mueller report. She said criticism was “well founded”.
The legal arguments and allegations criticized by Jackson were brought forward by the Justice Department during the Trump administration.
The attempt to withhold most of the opinion resisted a plea by seven Democratic senators last week, who wrote to Garland asking the department to publish the memo and to distance themselves from the dissimilarity Jackson had objected to in their decision.
In a trial Monday evening, Justice Department attorneys denied any deliberate effort to cover up the situation. However, they admitted that some of their contributions, describing the process surrounding Barr’s decision and accompanying documents, were confusing.
“With hindsight, the government acknowledges that their pleadings could have been clearer and deeply regrets the confusion it has caused. However, the government attorney and applicants had no intention of misleading the court, ”the new file reads.
One point of confusion: while Barr and his alternates agreed that Trump could not be prosecuted as the seated president, some of the department’s submissions to the court seemed to link that issue to whether the department should decide whether Trump acting would have led someone who was not a president to face criminal prosecution. Barr eventually announced that Trump’s actions would not have sparked prosecution.
DOJ attorneys also argued that Jackson was wrong to take up the fact that the legal opinion in question was finalized only after Barr announced his finding that Trump had not committed a crime. Legal advice is often provided informally and later turned into a more formal form, prosecutors said. This sequence of events does not undermine the role of advice in the deliberative process, the government record states.
“It is not uncommon for a recommendation memorandum, especially on a matter that is being dealt with as soon as possible, to be drawn up at the same time as the decision document. And such memoranda can retain their preliminary character even if they are final after the decision in question, ”said a statement from Deputy Assistant Attorney General of the Civil Department, Brian Netter, and other attorneys.
Jackson released her opinion on May 4, after reviewing the memo for herself. She noted that the Justice Department “has put up a lot of resistance”. She withheld some portions that contain the details of the memo from the version of her decision that was made public.
The freedom of information lawsuit, which sought the memo and other documents, was filed in 2019 by a monitoring group, Citizens for Responsibility and Ethics in Washington.