Appeals court says DOJ improperly redacted memo to AG Barr on Trump obstruction

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.

The DOJ did not immediately respond to a request for comment.

Whether the full memorandum is released soon likely depends on if the DOJ pursues an additional appeal, either to the full bench of the D.C. Circuit Court or to the Supreme Court.

This tees up another politically fraught decision for Attorney General Merrick Garland, whose earlier move to appeal the judge’s ruling ordering his department to release the document disappointed Trump critics and prolonged the FOIA battle that was initiated by the government watchdog group Citizens for Responsibility and Ethics in Washington (CREW).

That earlier appeal followed a May 2021 decision by U.S. District Judge Amy Berman Jackson, who ordered the DOJ to release the legal memo. She reached her decision, she said, after concluding that the DOJ’s privilege claims were not consistent with her own review of the unredacted memo or the timeline revealed by internal emails among top Justice Department officials.

In a scathing 41-page decision, she accused Barr and agency lawyers of creating the misleading impression that the former attorney general had been much more open-minded when weighing whether to recommend obstruction charges against Trump than the actual memo shows.

“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 wrote.

The controversy burst into public view as a result of a lawsuit CREW filed in May 2019 seeking internal DOJ documents regarding Barr’s public statements around the release of the Mueller report.

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 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 Jackson, in her decision, said it appeared that it was a foregone conclusion among DOJ leadership that there would be no prosecution against Trump. In affirming her decision on Friday, the D.C. Circuit emphasized the narrowness of its ruling.

“Nothing in our decision should be read to suggest that deliberative documents related to actual charging decisions fall outside the deliberative-process privilege,” the panel wrote.

“We hold only that, in the unique circumstances of this case, in which a charging decision concededly was off the table and the agency failed to invoke an alternative rationale that might well have justified its invocation of the privilege, the district court did not err in granting judgment against the agency.”

Updated at 1:03 p.m.