WASHINGTON — The U.S. Justice Department must release a 2019 memo advising then-Attorney General Bill Barr on how to handle the conclusion of the Mueller investigation and the department’s decision not to charge Donald Trump, a federal appeals court ruled.
The 3-0 decision Friday, by a panel of judges of the appeals court in Washington, upholds a lower court that ordered the department to make the March 2019 document public after finding that DOJ lawyers failed to accurately describe it from the start.
The district judge had found that the memo was about the kind of public statement Barr should make over special counsel Robert Mueller’s findings and not — as she said she had been led to believe — whether the Justice Department was seriously considering whether to bring charges against Trump.
The memo to Barr came at the end of Mueller’s investigation into Russian interference in the 2016 election and whether Trump had tried to meddle with the probe. Mueller’s team declined to make a recommendation about whether to charge Trump, and Barr said the evidence was “not sufficient” to prosecute.
The Justice Department had opposed releasing the full Office of Legal Counsel’s memo to Barr in response to a public records request from watchdog group Citizens for Responsibility and Ethics in Washington (CREW). U.S. District Judge Amy Berman Jackson last year found that the department had suggested the memo was privileged because it involved sensitive, predecision deliberations about whether Trump could be charged with obstructing the special counsel’s probe.
The department released a redacted version of the memo, and Jackson agreed to keep the rest under seal while the government appealed.
But as the U.S. Court of Appeals for the District of Columbia Circuit noted in its decision on Friday, it later became clear that DOJ officials had planned to rely on longstanding department policy against prosecuting a sitting president, and the memo was instead about the department’s “public messaging” over the Mueller report.
“Attorney General Barr cited this memo as a reason not to charge President Trump with obstruction of justice,” spokesperson Jordan Libowitz said in a statement. “The American people deserve to know what it says. Now they will.”
A Justice Department spokesperson declined to comment on the decision.
D.C. Circuit Chief Judge Sri Srinivasan, who was joined by Judges Judith Rogers and David Tatel, wrote that any analysis in the memo about bringing obstruction charges was more like a “thought experiment.”
Srinivasan noted that the department expressed “regret” about leaving a “misimpression that an actual charging decision was under consideration,” but he wrote that it missed opportunities to address the true purpose of the memo.
The court rejected the government’s request for another chance to make the case for keeping the full memo secret. Srinivasan wrote that the Justice Department might have successfully argued to keep the memo sealed if it had revealed the public messaging purpose from the beginning and then tried to invoke what’s known as the deliberative process privilege, but that it was too late now.
