The three-judge panel, led by Chief Justice Sri Srinivasan, said whether or not there was ‘bad faith’ the government ‘created a false impression’ and could not stop the broadcast under the Freedom of Information Act.
The memo was drafted by two senior Justice Department officials for then-Attorney General William P. Barr, who later told Congress there was not enough evidence to charge Trump with Obstruction of Special Counsel Robert S. Mueller III’s investigation. A the redacted version was published last year but left the legal and factual analysis sealed.
Ministry officials argued the document was protected because it involved internal deliberations over a prosecution decision. But the judges agreed with Jackson that Mueller and Barr had clearly already concluded that a sitting president could not be charged with a crime. The discussion was about how Barr would publicly characterize the obstruction evidence Mueller had gathered, the DOJ acknowledged on appeal.
“The court’s review … of the memorandum revealed that the Department in fact never considered filing a lawsuit,” the panel said. wrote. “Instead, the memorandum was about a separate decision that was not mentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller report. .”
The court said that if the Justice Department had accurately described to Jackson the motivations behind the memo, the document could be considered protected. Federal courts generally show deference to the government in such cases.
“We have held that an agency’s deliberations about how to communicate its policies are privileged, as are its deliberations about the content of those policies,” the court wrote. But they said the government lost that argument by insisting the memo was about the charging decision and resisting scrutiny that showed otherwise.
“Any suggestion that the memorandum was about whether something should be said to the public remained entirely undiscussed – and even unmentioned” until the appeal, the court said. “We cannot support withholding the memorandum on a rationale that the Department never presented to the district court.”
Jackson lambasted the government for the omission, saying CREW’s assessment of the memo “was considerably more accurate than that provided by the Department,” even though the nonprofit “had never seen the document”.
Barr ultimately told lawmakers that since Mueller refused to come to a conclusion on obstruction of justice, he and his deputy made their own decision the evidence was lacking. When to Mueller full report was released weeks later, his office said there was “substantial evidence” of obstruction. He also has wrote a letter to Barr saying the attorney general misinterpreted his team’s work.
Citizens for Responsibility and Ethics in Washington, the nonprofit organization that sued for the publication of the document, celebrated the judgment on Twitter and a spokesperson for the ethics watchdog called it a “major victory for transparency”.
“Attorney General Barr cited this memo as reason not to charge President Trump with obstruction of justice,” CREW spokesman Jordan Libowitz said in a statement. “The American people deserve to know what they say. Now they will.
The court suspended publication of the memo for a week so that the DOJ could weigh an appeal. The DOJ could ask the entire United States Court of Appeals for the DC Circuit or the United States Supreme Court to keep the document under seal. A DOJ spokeswoman declined to comment, as did Barr.