The Justice Department signaled its split decision on the disputed memo in a brief court filing submitted at about 10:30 p.m. Monday.
A department spokesperson declined to comment on whether Attorney General Merrick Garland, who promised at his confirmation hearing to read the Freedom of Information Act “generously,” had signed off on the decision. However, the move appeared to reflect an institutional decision to take some action to protect the department’s internal deliberations on highly sensitive matters.
Earlier this month, U.S. District Court Judge Amy Berman Jackson issued a withering opinion that accused former Attorney General William Barr of being “disingenuous” when describing Mueller’s findings and found that the Justice Department was not candid with the court about the purpose and role of the memo prepared by Justice’s Office of Legal Counsel at the conclusion of Mueller’s probe.
Listed as co-authors of the memo are Steven Engel, a Senate-confirmed Trump appointee who served as assistant attorney general for the Office of Legal Counsel, and Edward O’Callaghan, who served as the top aide to Deputy Attorney General Rod Rosenstein. However, Jackson said other records make clear that Rosenstein and Barr’s chief of staff, Brian Rabbitt, also contributed to the document.
In response to a Freedom of Information Act lawsuit, Justice Department attorneys argued that the memo was part of the process of advising Barr on whether Trump should be prosecuted, but Jackson said the analysis consisted of a post hoc rationalization of a decision already made.
“The review of the document 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,” wrote Jackson, an appointee of former President Barack Obama.
Jackson linked the Justice Department’s effort to keep the memo secret to Barr’s initial descriptions of Mueller’s conclusions, declaring both efforts misleading.
“Not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege,” she wrote. “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.”
Justice Department attorneys also argued that the memo is covered by attorney-client privilege, but Jackson said much of it didn’t seem to contain legal advice or conclusions. “The Court is not persuaded that the agency has met its burden to demonstrate that the memorandum was transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege,” the judge wrote.
Jackson noted that another D.C.-based federal judge, Reggie Walton, previously criticized Barr’s early description of the Mueller report. She said that criticism was “well-founded.”
The legal arguments and claims Jackson criticized were put forward by the Justice Department during the Trump administration.
The move to withhold the bulk of the opinion defied a plea from seven Democratic senators last week, who wrote to Garland urging the department to release the memo and distance itself from the dissembling faulted by Jackson in her decision.
In a court filing Monday night, Justice Department lawyers denied any intentional effort to obscure the situation. However, they admitted that some of their submissions describing the process surrounding Barr’s decision and the related documents were confusing.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court,” the new filing said.
One point of confusion: While Barr and his deputies appeared in agreement that Trump could not be prosecuted as a sitting president, some of the department’s submissions to the court seemed to conflate that issue with the question of whether the department should opine on whether Trump’s acts would have led someone who was not president to face prosecution. Barr ultimately announced Trump’s acts would not have triggered a prosecution.
DOJ lawyers also argued that Jackson was wrong to seize on the fact that the legal opinion in question was not finalized until after Barr announced his finding that Trump had committed no crime. Legal advice is often delivered informally and then put into a more formal form later, the government attorneys said. That sequence of events doesn’t undermine the role of the advice in the deliberative process, the government filing said.
“It is not unusual, particularly in a matter being handled in expedited fashion, for a recommendation memorandum to be prepared contemporaneously with the document that carries out the decision. And such memoranda can retain their pre-decisional character even when they are finalized after the decision in question,” the submission from Civil Division Deputy Assistant Attorney General Brian Netter and other lawyers said.
Jackson released her opinion May 4 after reviewing the memo herself, a process which she noted that the Justice Department “strongly resisted.” She withheld some portions that include the details of the memo from the version of her decision that was made public.
The freedom-of-information suit seeking the memo and other records was filed in 2019 by a watchdog group, Citizens for Responsibility and Ethics in Washington.