A federal judge has ordered the release of a legal memorandum the Trump-era Justice Department prepared for then-Attorney General William Barr before he announced his conclusion that President Donald Trump had not obstructed justice during the Russia investigation.
The Justice Department had refused to give the March 24, 2019, memorandum to a government transparency group that requested it under the Freedom of Information Act, saying the document represented the private advice of lawyers and was produced before any formal decision had been made and was therefore exempt from disclosure under public records law.
But U.S. District Judge Amy Berman Jackson said the Justice Department had obscured “the true purpose of the memorandum” when it withheld the document.
She said the memo from the Justice Department's Office of Legal Counsel contained “strategic, as opposed to legal advice” and that both the writers and the recipients already had a shared understanding as to what the prosecutorial decision would be. She said this meant it was not — as the department had maintained — “predecisional,"
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“In other words, 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,” Jackson said in an order dated Monday.
The decision by Barr and senior Justice Department leaders to clear Trump of obstruction, even though special counsel Robert Mueller and his team pointedly did not reach that conclusion, was a significant moment for the president. The announcement, and a four-page summary of Mueller's report, preceded the release of the 448-page document and helped shape public perception of the investigation's conclusions. Mueller subsequently complained to Barr that his summary had not fully captured the investigation's findings and had caused “public confusion.”
Citizens for Responsibility and Ethics in Washington filed a public records request seeking communications about the obstruction decision after Barr said that he and other senior officials had reached that conclusion in consultation with the Office of Legal Counsel, which provides legal guidance to executive branch agencies.
At issue in a lawsuit pending before the judge were two particular documents the group wanted.
Jackson ruled that one of the documents, described by a Justice Department official as an “untitled, undated draft legal analysis" submitted to the attorney general as part of his decision-making, was properly withheld from the group.
But she ordered the release of the other memo, which was prepared for Barr by the then-head of the Office of Legal Counsel and another senior Justice Department official and which concludes that the evidence assembled by Mueller's team would not support an obstruction prosecution of Trump.
In her order, Jackson noted that the memo prepared for Barr, and the letter from Barr to Congress that describes the special counsel's report, are "being written by the very same people at the very same time.
“The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first,” the judge wrote.
The judge said the Justice Department has until May 17 to file any motion to stay the order.
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