Justice, Garland disappoint Trump critics with memo move

The Justice Department’s (DOJ) effort to block the release of an internal legal memo from 2019 has highlighted the delicate balancing act Attorney General Merrick Garland is facing as he tries to turn the page on the Trump era.

The DOJ said this week that it would be appealing a judge’s decision ordering the department to release a document that essentially cleared former President Trump of any criminal wrongdoing during former special counsel Robert Mueller’s investigation.

The decision is likely to disappoint the critics of former Attorney General William Barr who were hoping that Garland would not stand in the way of efforts to show whether Justice was used to shield Trump.

“The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years,” Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington (CREW), which sued to obtain the documents, said in a statement Tuesday.

“Last night it chose not to do so,” he added. “In choosing to fight Judge Jackson’s decision, the DOJ is taking a position that is legally and factually wrong and that undercuts efforts to move past the abuses of the last administration. We will be fighting this in court.”

Administrations in both parties have long defended a culture of secrecy around the types of internal legal memos at issue in CREW’s lawsuit.

The document was prepared for Barr by the Office of Legal Counsel (OLC), a small section of the Justice Department that produces legal interpretations relied upon by government agencies and the White House.

Critics argue that the office is essentially a rubber stamp for the executive branch and that its memos are shielded from public scrutiny.

The Justice Department has long fought public records lawsuits for OLC documents, often asserting, as it did in the CREW lawsuit, that its legal opinions are products of attorney-client privilege and the government’s deliberative decision-making process, both of which are exempt from the Freedom of Information Act (FOIA).

Elizabeth Goitein, the director of the Brennan Center for Justice’s Liberty and National Security Program, said she was disappointed with the DOJ’s decision to fight the memo’s release.

“The thing that makes this story so jarring in some ways is the idea that this is the hill that Attorney General Garland wants to die on — that he’s willing to fight for OLC secrecy for this opinion,” Goitein said. “Which is why this maybe feels so unexpected to some people.”

The decision indicates Garland sees more at stake than a partisan desire to hold the Trump administration accountable for abuse of power, said Harry Litman, a former deputy assistant attorney general during the Clinton administration.

“He’s very, very serious about what his role is, and sticking to that role,” Litman said “And that’s, I think, what’s going to mark his tenure, even if it doesn’t delight a lot of progressives who are basically looking to just undo all of the harm that had been done in the last few years.”

“I think what he’s going to do is put one foot in front of the other, stay in his lane and be resolutely indifferent to whom it’s helping or hurting politically,” he added.

Earlier this month, Judge Amy Berman Jackson rejected the DOJ’s arguments and characterizations about the 2019 OLC memo, writing in an opinion that the advice in the document appeared to be a blend of political and legal advice, undermining the government’s assertion that it should be shielded from public view under FOIA.

She also accused the DOJ of deceiving the court and the public, saying that her review of the unredacted memo made it appear that officials never had any intention of making the determination that criminal charges were warranted against Trump.

“The suggestion that the Attorney General’s advisors were helping him make a decision about whether to initiate or decline a prosecution is contrary to the very memorandum at issue,” Jackson wrote. “So why did the Attorney General’s advisors, at his request, create a memorandum that evaluated the prosecutive merit of the facts amassed by the Special Counsel? Lifting the curtain reveals the answer to that too: getting a jump on public relations.”

On Monday night, the DOJ in court filings apologized for the lack of clarity in its legal arguments but stood by its opposition to the memo’s full release.

“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the DOJ wrote. “But the government’s counsel and declarants did not intend to mislead the Court, and the government respectfully submits that imprecision in its characterization of the decisional process did not warrant the conclusion that” the memo should be released in its entirety.

The Justice Department did release a portion of the memo on Monday showing that the OLC had advised DOJ leadership to make a determination on whether the Mueller investigation supported the conclusion that Trump broke the law since the special counsel himself chose not to address the question.

“Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public,” the memo reads.

But the DOJ left redacted the parts of the memo laying out its legal analysis of whether Trump’s conduct amounted to obstruction of justice. 

Goitein argued that Garland and the Biden administration should take it upon themselves to push for more transparency around such legal analysis because of the weight that OLC opinions carry in the government.

“There are aspects of the institution of the Department of Justice that need to be changed, and that have needed to be changed for a very long time,” she said. “And this administration should be leading the charge on those changes, not lining up behind the way things were done before.”

Watchdog advocates also argue that transparency is key to any effort by the Biden administration to seek accountability and ensure public confidence in the government.

“The Trump administration is going to be studied for a very long time as we try to unwind how the 45th presidency impacted all of our political and institutional norms,” said Lauren Harper, the public policy director at the National Security Archive, a transparency group and research center. “And I think the Justice Department in particular is going to have a lot to reckon with how it as a department conducted itself during the Trump administration.”

Harper said that providing transparency would go a long way towards furthering Biden’s commitment to rebuilding trust in public institutions like the DOJ.

“I think if you’re looking at particularly the Trump administration, the way you rebuild consensus and trust is you show how these momentous decisions were and were not made,” she said.