DOJ Must Release 2019 Memo About Whether to Charge Trump with Obstruction Because It Waited Too Long to Properly Argue Secrecy: D.C. Circuit

The U.S. Court of Appeals for the District of Columbia has ruled that the Department of Justice must release a 2019 memorandum cited by Donald Trump’s then-attorney general as support for not charging the then-president with obstruction of justice.

Following the March 2019 release of former Special Counsel Robert Mueller’s report summarizing his investigation into whether Trump’s campaign conspired with Russia to interfere with the 2016 presidential election, Bill Barr, then the head of the Justice Department, declined to charge Trump with obstruction of justice.

At the time, Barr had cited an Office of Legal Counsel memo as the basis for his decision. Nonprofit government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) sued under the Freedom of Information Act (FOIA) after the DOJ denied the group’s request for the memo.

Over the course of the ensuing litigation, it was revealed that the purpose of the memo was not for Barr to determine whether to pursue criminal obstruction charges against Trump. Rather, it was advice to Barr on how to characterize his decision not to reveal his thought process in a public statement.

That’s because, according to court documents, it was widely assumed that a sitting president could not be prosecuted.

In May of 2021, U.S. District Judge Amy Berman Jackson, a Barack Obama appointee, ordered the release of the memo, rejecting the DOJ’s claim that the document was protected from release by the deliberative process privilege, a form of executive privilege aimed at shielding the process by which agency policies or decisions are reached.

On Friday, a three-judge panel of appellate judges upheld Jackson’s ruling.

Jackson had found that the DOJ failed to show that the memo was both “pre-decisional” and “deliberative,” both of which are required in order to qualify for the privilege.

The D.C. Circuit recapped Jackson’s reasoning (emphasis added):

First, the court determined that the Department had failed to accurately identify the relevant decision making process. Although the Department’s briefs and declarations suggested to the court that the memorandum contained advice about whether to prosecute President Trump for obstruction of justice, the memorandum itself showed that its true purpose was something else: to advise Attorney General Barr on whether to “offer a public opinion” on “the strength of the evidence,” a topic that the Department had never indicated “was even a subject of the memorandum.” Second, the court concluded that the memorandum was not pre-decisional because Attorney General Barr had reached his final decision on how to respond to the Mueller Report, as expressed in the letter he sent to Congress, before the memorandum had been finalized. The district court thus ordered the Department to release the memorandum.

The first section of the memo, referred to as Section I in the ruling, has since been disclosed. It recommended that the DOJ reach a conclusion on whether Trump’s conduct amounted to obstruction of justice, noting the ambiguity in the fact that Mueller declined to prosecute Trump while also declining to exonerate him. The public could read an implied accusation against Trump, the memo said, and urged Barr to “reach a judgment” on whether to pursue charges.

Section II of the memo concluded that the evidence in Mueller’s report wouldn’t support a “conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice” statutes. The DOJ, under Attorney General Merrick Garland, appealed the order to release this second part of the memo.

In the opinion, the judges set out the legal requirements for invoking the privilege: a record is pre-decisional if it was “prepared in order to assist an agency decision-maker in arriving at his decision, rather than to support a decision already made,” and and a record is deliberative if it “reflects the give-and-take of the consultative process.”

The judges found that no such process occurred:

As the Department concedes, it never in fact considered charging President Trump with obstruction of justice or any other crime. Instead, like Special Counsel Mueller, the Department took as a given that the Constitution would bar the prosecution of a sitting President. In light of the Department’s “well-known and longstanding view that a sitting President cannot be indicted or prosecuted,” the March 2019 memorandum analyzing the evidence against President Trump could not have pertained to any decision about prosecuting him. The memorandum, then, was neither pre-decisional nor deliberative as to such a decision-making process.

The judges also wondered why the DOJ would make the deliberative process argument at all:

If the Department’s analysis of whether the evidence in the Mueller Report would support an obstruction-of-justice charge did not in fact relate to a decision about whether to initiate or decline a prosecution, then why engage in that analysis? The Department’s submissions to the district court perhaps could be interpreted to indicate that the memorandum’s analysis of that question, if not related to an actual charging decision, was instead part of an abstract thought experiment. On that conception, the memorandum formed part of an academic exercise to determine whether President Trump’s conduct met the statutory definition of obstruction, solely for Attorney General Barr’s information, without any connection to any ensuing action by Barr or the Department.

[ . . . ]

It is not at all clear that a purely hypothetical, academic discussion among agency personnel could qualify for protection under the deliberative-process privilege. It is true that, early in a decision-making process, an agency might host a free-flowing brainstorming session at which staff members toss around ideas without necessarily having a specific ultimate decision in mind. And those sorts of early-stage discussions would ordinarily qualify for protection under the deliberative-process privilege. Presumably, though, the deliberations in that kind of situation at least would have the possibility of leading to some later decision. If there were no such possibility—as was the case here with respect to the actual bringing of charges—it is difficult to see how the conversation could be pre-decisional and deliberative so as to implicate the privilege.

The judges then offered the following hypothetical:

For instance, imagine if instead of asking for a memorandum assessing whether President Trump had obstructed justice, Attorney General Barr had requested a memorandum on whether President Nixon’s conduct during the Watergate scandal would constitute obstruction of justice under current law. And suppose he asked that question because he had simply been curious about whether Nixon committed any crimes. Of course, the Attorney General could not be considering the initiation of actual criminal charges against a deceased President. Debates about whether President Nixon committed a crime thus seemingly would not qualify as pre-decisional absent an asserted connection to some ensuing decision other than the bringing of a charge.

The judges said that the purpose of Section I of the memo wasn’t to determine whether to bring criminal charges against Trump.  That was, as the judges say, “never on the table” because the Justice Department, under Barr, had assumed that a sitting president couldn’t be criminally prosecuted.

Instead, the judges said, “the deliberations about whether the evidence in the Report amounted to a crime went to deciding whether to say something to the public on that issue, not deciding whether to initiate a prosecution.”

The DOJ argued that such deliberations should still be protected by the privilege, and the judges didn’t entirely disagree. However, in the judges’ view, the DOJ — which had not raised this argument before appealing to the D.C. Circuit — was a day late and a dollar short.

“The Department’s view on that score might well be correct,” the judges wrote, noting that the court has previously held that “an agency’s deliberations about how to communicate its policies are privileged, just like its deliberations about the content of those policies.”

The Justice Department, however, had failed to make key connections that could have helped its case.

Per the opinion:

[I]t is now apparent that the March 2019 memorandum recommended reaching a conclusion on the evidentiary viability of an obstruction-of-justice charge as a means of preempting a potential public reaction to the Mueller Report. In that light, if the Department’s submissions to the district court had connected the memorandum to a decision about making a public statement, then the district court might well have concluded that the memorandum was privileged. But that is not how the Department elected to justify its invocation of the privilege in the district court.

Before the district court issued its decision, nothing in the Department’s submissions had suggested that the memorandum fell within the privilege because it advised Attorney General Barr about making a public statement in response to the Mueller Report. Any notion that the memorandum concerned whether to say something to the public went entirely unargued—and even unmentioned—in the Department’s filings. Instead, as outlined earlier, the Department’s submissions framed the memorandum as directed at a decision about whether to charge the President, or perhaps at an abstract inquiry about whether the evidence would support such a charge—not at a decision about making a public statement on that issue. Indeed, the Department resisted in camera review of the portions of the memorandum related to a possible decision about making a public statement. It was not until the Department’s motion for a stay pending appeal—after it had filed its notice of appeal—that it first mentioned to the district court that the memorandum dealt with “what, if anything, to say to the public about [the] question” of whether “crimes were committed.”

The judges similarly rejected the DOJ’s argument that the memo was prepared concomitantly with Barr’s letter to Congress in which he announced his conclusion not to pursue obstruction charges against Trump. The Justice Department had argued that the memo therefore served to advise the then-attorney general on whether to issue a statement to the public — and what it should say.

“The Department’s filings in the district court, however, simply did not make—or even suggest—that connection,” the opinion says. “If anything, they suggested the opposite[,]” the judges continued before noting multiple declarations and arguments the DOJ made in the lower court implying that Barr was seriously considering bringing charges against Trump.

The court chided the DOJ for accusing CREW of using “irrelevant speculation” in its arguments; the panel concluded that CREW was the one who was right all along.

The judges noted that while the DOJ “expresses regret” for prior pleadings that “left a misimpression,” it wasn’t enough.

“[W]hile the decisional process on which the Department now relies involved a determination as to whether the Attorney General should make a public statement, none of the Department’s submissions to the district court suggested that the March 2019 memorandum related to such a decision,” the opinion says. “In its briefing to us, the Department expresses regret that its submissions to the district court could have left the misimpression that an actual charging decision was under consideration, and it assures us that any misimpression it may have caused to that effect was inadvertent and not the result of any bad faith.”

Bad faith or no, the judges said, because the DOJ didn’t raise the argument before Jackson, it “failed to carry its burden to establish the relevant decisional process.”

The judges emphasized that their decision is “narrow” and does not question any previous rulings allowing agencies to withhold drafts of documents related to public messaging. In fact, the opinion says, if the DOJ had raised the matter earlier, it might have succeeded at the district court level.

“Indeed, if the Department had identified the March 2019 memorandum’s connection to public messaging, the district court might well have sustained the Department’s reliance on the deliberative process privilege,” the judges say, later adding: “We hold only that, in the unique circumstances of this case, in which a charging decision concededly was off the table and the agency failed to invoke an alternative rationale that might well have justified its invocation of the privilege, the district court did not err in granting judgment against the agency.”

The opinion was written by Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee, and joined by judges Judith Rogers and David Tatel, both Bill Clinton appointees.

Read the ruling, via CREW, below.

[Images via Win McNamee/Getty Images and Tasos Katopodis/Getty Images]