On March 22, 2019 Mueller submitted his report to then Attorney General Barr. Rather than immediately release the report Barr sat on it for weeks. However, on the very day Mueller gave him the massive 400 page report Barr released a letter notoriously “summarizing” Mueller’s conclusions. Among summarized assertions was that Mueller “did not draw a conclusion — one way or the other” as to whether Trump obstructed justice and that this left the question in the hands of Attorney General. Barr then declared that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
In later testimony to Congress Barr asserted that he, and the Deputy Attorney General, in consultation with other DOJ lawyers, reached this conclusion.
Citizens for Responsibility and Ethics in Washington (“CREW”) promptly submitted a Freedom of Information Act (FOIA) request seeking any documents of the consultations asserted. After a series of partial disclosures by the DOJ, CREW sued to get more, to include a memo to Barr from DOJ legal counsel discussing the issue. On May 3d the court ruled the DOJ must release the memo.
However, the reasons the court gave for this decision are what is really of interest here. The court found that Barr appears to have misled Congress about the supposed consultations informing his decision. The court also found that DOJ filed pleadings in court about the memo were so misleading as to be “bad faith.”
The DOJ claimed the memo was protected by the “deliberative process privilege” which is designed to protect deliberations related to agency decision making to allow unhindered advice towards that decision. One of the self evident criteria for this privilege is that the communications protected by it are “predecisional and deliberative.” If the communications are after the decision is already made they are obviously not facilitating the deliberation on the decision.
In essence, the memo itself revealed that it was not predecisional but rather was done only to justify an already made decision. Judge Amy Berman Jackson discovered that the memo was post-decisional because the memo itself made that clear and she ordered in camera (where only the judge sees it) of the document. The DOJ vigorously resisted this in camera review, a routine procedure, which is suspicious in itself.
The court agreed with CREW that the memo was not to “make a recommendation or express an opinion on a legitimate legal or policy matter. Instead, it was part of a larger campaign initiated by Attorney General Barr to undermine the Special Counsel’s report and rehabilitate the President.” The court found “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.”
In a remarkable statement, the court found that CREW’s speculation as to what was in the memo, and that it would reveal the nefarious reasons the DOJ wanted to conceal it, was more accurate than the DOJ’s representations to the court of the memo made before the in camera review:
“while CREW had never laid eyes on the document, its summary was considerably more accurate than the one supplied by the Department’s declarants.”
While the parts of the still unreleased memo explaining this are redacted in the decision, the court states that the memo “calls into question the accuracy of Attorney General Barr’s March 24 representation to Congress” where he told Congress:
“The SpecialCounsel’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.”
Further, the court found that the in camera review of the memo “raises serious questions” as to how the DOJ could in good faith make a series of representations in court that the memo:
“contains their candid analysis and advice provided to the Attorney General prior to his final decision on the issue addressed in the memorandum — whether the facts recited in Volume II of the SpecialCounsel’s Report would support initiating or declining the prosecution of the President . . . . It was provided to aid in the Attorney General’s decision making processes as it relates to the findings of the Special Counsel’s investigation.”
The court noted a presumption in favor of the truth agency affidavits when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” The court then blistered the DOJ’s hide saying “but here, we have both.” That’s both contradictory evidence AND bad faith. The court found “the affidavits are so inconsistent with evidence in the record, they are not worthy of credence.” The allegation of dishonesty towards the court is then made more clear:
“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. 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.”
The court concluded with this rather devastating summary:
“The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary.”
For any who wonder if Barr was a deliberate conspirator to protect Trump from the truth of the Mueller Report, this court decision should be informative.