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Judge Orders Release of DOJ Memo About the Mueller Report’s Obstruction Case

And rebukes Bill Barr’s DOJ for its ‘misleading’ claims to the court.
May 5, 2021
Judge Orders Release of DOJ Memo About the Mueller Report’s Obstruction Case
(Photo by Drew Angerer/Getty Images)

In a 35-page opinion issued on Monday, a federal judge in Washington, D.C. concluded that the Department of Justice under former Attorney General William Barr made blatant misrepresentations to the court about an internal DOJ memorandum relating to Barr’s decision to preempt Special Counsel Robert Mueller’s report with a summary of Mueller’s “principal conclusions.” Mueller delivered his report on March 22, 2019, but as the court explained, “the Attorney General did not share it with anyone else.” Instead, “before the weekend was over,” Barr sent to the chairmen and ranking members of the House and Senate judiciary committees a now-infamous four-page memo. On the basis of that March 24, 2019 memo, President Donald Trump, in the judge’s words, “declared himself to have been fully exonerated.” Barr then proceeded to delay for three weeks DOJ’s release of Mueller’s actual report of his investigation of Russian interference in the 2016 presidential election and possible criminal obstruction of justice by President Trump.

Because Barr’s maneuver effectively averted any serious public airing of the special counsel’s conclusions regarding misconduct in the Oval Office, Attorney General Merrick Garland should consider revisiting the Mueller report. Such a move could help to restore credibility and legitimacy to a DOJ whose reputation is tarnished by years under Barr and Trump.

The jurist who wrote Monday’s opinion is no stranger to litigation of constitutional importance regarding the former president. U.S. District Judge Amy Berman Jackson presided over the Roger Stone conviction and sentencing, which was later foiled by a pardon. In her new opinion, Judge Jackson rips the scab off other wounds that the rule of law and the U.S. Constitution suffered under Trump. The immediate result of the lawsuit is that the plaintiff, the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), will obtain under the Freedom of Information Act (FOIA) an internal DOJ memo “submitted to the Attorney General to assist him in determining whether the facts set forth in Volume II of Special Counsel Mueller’s report ‘would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution.’” The memo to Barr is dated the same day as Barr’s letter to Congress, March 24, 2019, and came from Steven A. Engel, who at that time led DOJ’s elite Office of Legal Counsel (OLC), as well as another DOJ official.

Bill Barr’s DOJ initially denied CREW’s FOIA request for the Engel memo on two grounds: first, that it was protected by the deliberative process privilege, which allows government agencies to withhold documents “that would reveal . . . deliberations comprising part of a process by which governmental decisions and policies are formulated.” And second, that it was protected under the attorney-client privilege.

The trouble is, the deliberative process privilege assumes that DOJ considered the memo in actual deliberation of something. Yet it was issued the very same day as Barr’s four-page missive of exoneration. Judge Jackson put two and two together. After reading the actual document, she concluded that the Engel memo “reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”

Barr claimed in his March 24 memo that “the Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” But as the judge noted, Barr had drawn his conclusion from “what he’d hardly had time to skim, much less, study closely.” Moreover, “the excised portions [of the Engel memo] 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.” Whereas Barr had been “disingenuous,” therefore, the DOJ had submitted affidavits to the court that “are so inconsistent with evidence in the record, they are not worthy of credence.”

Ouch.

Judge Jackson went further, creating a table that details in chronological order a series of emails exchanged between the likes of Engel; Brian C. Rabbitt, who was Barr’s chief of staff; and former Deputy Attorney General Rod Rosenstein on or around Barr’s March 24 letter to Congress. (This kind of lawyerly spadework is usually done by litigants; rarely by a judge.) She concludes from the emails that Engel’s “predecisional” March 24 memo and Barr’s March 24 memo to Congress were “being written by the very same people at the very same time.” In fact, the OLC letter was finished after Barr’s letter to Congress. Thus, she surmised, the Engel memo was transmitted not as legal advice but as “strategic and policy advice that falls outside the scope” of the attorney-client privilege. DOJ has to turn it over.

As the judge underscored, Mueller himself “pen[ned] an extraordinary public rebuke on March 27,” stating that Barr’s memo “did not fully capture the context, nature, and substance of this Office’s work and conclusions,” that “there is now public confusion about critical aspects of the results,” and that “this threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”

Public confidence in the rule of law remains in short supply these days, as the United States slips below places like Argentina and Mongolia in the ranking of world democracies. Although CREW’s invocation of the federal courts functioned as a critical check on Barr’s “lack of candor” and overall manipulation of the process, it’s not enough. It’s now up to the new administration to restore the Justice Department. As part of that task, Garland should undertake the sobering task that Barr misleadingly claimed to have done: assess whether Donald Trump criminally obstructed justice in the White House.

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.