The Biden administration is appealing a judge’s order directing it to release in its entirety a legal memo on whether President Donald Trump had obstructed justice during the Russia investigation. But it also made pubic a brief portion of the document showing senior Justice Department leaders concluded that the evidence could not support an obstruction prosecution.
U.S. District Judge Amy Berman Jackson earlier this month ordered the Justice Department to release the March 2019 memo as part of a public records lawsuit from a Washington-based advocacy organization. She said the department, under Attorney General William Barr, had misstated the purpose of the document in arguing that it was legally entitled to withhold it from the group, Citizens for Responsibility and Ethics in Washington.
In a motion filed late Monday, the deadline for deciding whether it would comply with the judge’s decision or appeal it, the Justice Department said that it continued to believe that the full document should be exempt from disclosure. The lawyers asked Jackson to put her order on hold while it appeals the ruling to a federal appeals court.
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At issue is a March 24, 2019 memo from the Justice Department’s Office of Legal Counsel that was prepared for Barr to evaluate whether evidence collected in special counsel Robert Mueller’s investigation could support an obstruction of justice prosecution of the president. Barr has said he looked to that opinion in determining that Trump did not illegally obstruct the Russia probe.
The Justice Department turned over other documents to CREW as part of the group’s lawsuit, but declined to give it the OLC memo. Government lawyers said they were entitled under public records law to withhold the memo because it reflected internal deliberations among lawyers before any formal decision had been reached.
But Jackson said those arguments were disingenuous because the memo was prepared for Barr at the same time as a separate Justice Department letter informing Congress and the public that Barr and senior department leaders had concluded that Trump had not obstructed justice.
She said the OLC memo could therefore not have been “predecisional” in nature if the Justice Department had already decided that there would be no obstruction case.
In its motion Monday, Justice Department lawyers said the government never meant to mislead the court but acknowledged that some of its language could have been clearer.
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The department said the decision before the attorney general was not whether to prosecute Trump since the indictment of a sitting president is precluded by longstanding Justice Department policy. Rather, the question that the memo set out to address was whether the facts gathered by Mueller could warrant a criminal case. That question, the government says, was a genuine decision that had to be made.
“The Attorney General’s determination on that point — and on what, if anything, to say to the public about that question — undoubtedly qualifies as a decision, even if it could not have resulted in an actual prosecution of the sitting President,” Justice Department lawyers wrote.
“There was no legal bar to determining that the evidence did or did not establish commission of a crime, a determination the Attorney General made and announced,” they added.
The brief portion of the memo that the department agreed to disclose shows that two senior Justice Department leaders advised Barr that, in their view, Mueller’s evidence could not support beyond a reasonable doubt the conclusion that Trump had obstructed justice.
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