Support The Bulwark and subscribe today.
  Join Now

DOJ Still Trying to Block Release of Memo About Trump and Obstruction

The memo was aimed at “getting a jump on public relations,” judge says.
May 26, 2021
DOJ Still Trying to Block Release of Memo About Trump and Obstruction
Former Special Counsel Robert Mueller testifying before Congress in 2019. (Photo by Alex Wong / Getty)

There are new developments in a lawsuit relating to the record of the Department of Justice during the Trump years—developments that continue to reflect poorly on former Attorney General Bill Barr and that could have implications for future presidents.

As I explained here earlier this month, U.S. District Judge Amy Berman Jackson on May 3 ordered the public release of an internal DOJ memo justifying Barr’s infamous four-page preview of Robert Mueller’s report on his investigation into Russian interference in the 2016 election and Trump’s acts of obstruction in connection with his investigation. Barr’s memo prompted Trump to falsely claim “total and complete exoneration,” to the chagrin of Mueller himself. This week, Attorney General Merrick Garland appealed that ruling—the latest step in a dance between Judge Jackson and DOJ around the withheld memo.

Judge Jackson’s decision is important for two reasons. The judge concluded that DOJ had affirmatively misled the court in its filings as to the memo’s contents. And she affirmed what most of us who take this story seriously already knew: Barr politicized DOJ in unprecedented ways in order to cover for former President Trump (rather than acting in the best interests of the American people, as the country’s top prosecutor pledges to do).

This week, Judge Jackson released an unredacted version of her opinion, which throws more shade on Barr, and Garland’s DOJ appealed her ruling, in part. But this controversial maneuver should hardly be construed as good for Trump, now a private citizen.

The case was filed by Citizens for Responsibility and Ethics in Washington under the Freedom of Information Act (FOIA). DOJ initially refused to release the memo—which came from DOJ’s Office of Legal Counsel—on grounds that it is protected under the attorney-client and deliberative process privileges because it purportedly contained an analysis of whether Trump should be indicted for obstruction of justice. In her unsealed ruling, the judge concluded that, although DOJ had told her “that the Attorney General was in fact wrestling with a difficult decision about a high-profile criminal prosecution,” the reality was instead about political spin: “one of the apparent purposes of the memorandum was to justify the Attorney General’s plan to opine about the strength of the evidence, even though he and his team were well aware that under DOJ policy, there was no prosecution decision to be made.” (Although not a law, internal DOJ policy dating back to the Nixon administration bans prosecutions of sitting presidents.)

Garland is appealing the ruling on the rationale that the deliberative process exception to FOIA should not just cover decisions whether or not to prosecute, but also decisions that, in DOJ’s words, “memoraliz[e] advice provided during the course of the decisionmaking process.” Judge Jackson waved off this argument because DOJ failed to make it: “The Court is under no obligation to assess the applicability of a privilege on a ground the agency declined to assert,” she wrote. She is absolutely correct that, as a matter of precedent, federal judges expect especially high standards of candor and ethics from government lawyers. This reliance value—which Barr appears to have sidelined—is important to the legitimacy of the courts, which regularly hear argument from the U.S. government as a party to countless lawsuits.

Garland’s DOJ also walks a fine line in responding to the judge’s suggestion that his predecessor AG knowingly misled her. In its motion to stay the ruling pending an appeal, DOJ “recognizes . . . that several statements in its briefing” lacked sufficient context and “were susceptible to an interpretation that the Attorney General was considering whether a prosecution or indictment of the sitting President should actually be commenced.” But DOJ claims that “the decision on which the memorandum was advising the Attorney General was whether the evidence in Volume II of the Special Counsel’s Report was sufficient to establish that the President had committed obstruction of justice.”

In other words, the memo was not about whether to indict (because that was internally barred as a matter of DOJ policy) but instead about whether what Trump did was in theory indictable.

Some argue that, as the head of the branch of government who is charged with executing and enforcing the law, a president can never obstruct justice. Through his discretion, he is justice. This is much like the argument that Trump’s attorney in the first impeachment trial, Alan Dershowitz, made in defense of the charge that he abused his power by withholding defense aid to Ukraine absent a promise to announce a criminal investigation into one of his rivals for the presidency, Joe Biden. As Dershowitz infamously put it, “if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” Both claims fail as a matter of basic logic: The American presidency is not an absolute monarchy. The president is not the law, and must not be beyond the reach of the law.

Which is why Garland’s decision to seek reversal of Judge Jackson’s decision is interesting for a reason that has little to do with FOIA exemptions: If the memo’s contents regarding the Barr DOJ’s view on whether presidents can obstruct justice became public, what would that mean for presidential accountability moving forward?

The Constitution does not address whether a president can constitutionally obstruct justice, and the Supreme Court has not had occasion to decide the question. The federal obstruction statutes do not address presidents, and Congress has not clarified its view of the matter (although it well should—and quickly, before Trump wins a second term). This blind spot in the law means one of at least two things about Garland’s decision to appeal. Either Garland is interested in keeping in his back pocket the possibility of indicting Donald J. Trump for obstruction of justice while president and doesn’t want contrary DOJ “authority” floating out there, or the memo comes clean about Trump’s obstructive acts and the potential presidential liability they created, and Garland—like Barr—may be a strong believer in presidential power who doesn’t want to tie the hands of future presidents, including Joe Biden.

The latter scenario seems less likely. Consider Judge Jackson’s rhetorical question and answer: “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.” Barr’s people showed their loyalty to Barr, and Barr’s boss, by manufacturing the memo in the first place.

Presumably, Merrick Garland would be sympathetic to the view that DOJ’s role is not to outmaneuver bad press for a president who happens to be under investigation, but instead to take the facts and the law where they lead him, politics aside.

Which is why nothing about this news is good news for Donald Trump.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.