WASHINGTON – The Biden administration is appealing a judge's order directing it to release in its entirety a legal memo on whether President Donald Trump had obstructed justice during the Russia investigation. But it also made public a brief portion of the document showing that senior Justice Department leaders concluded that the evidence could not support an obstruction prosecution.
U.S. District Judge Amy Berman Jackson earlier this month ordered the Justice Department to release the March 2019 memo as part of a public records lawsuit from a Washington-based advocacy organization. She said the department, under Attorney General William Barr, had misrepresented the purpose of the document in arguing that it was legally entitled to withhold it from the group, Citizens for Responsibility and Ethics in Washington.
In a motion filed late Monday, the deadline for deciding whether it would comply with the judge's decision or appeal it, the Justice Department said it continued to believe that the full document should be exempt from disclosure. The lawyers asked Jackson to put her order on hold while it appeals the ruling to a federal appeals court.
CREW President Noah Bookbinder said the group was “deeply disappointed” by the Justice Department's decision and called the government's position “legally and factually wrong.”
“The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years," Bookbinder said in a statement. “Last night it chose not to do so.”
At issue is a March 24, 2019, memo from the head of the Justice Department's Office of Legal Counsel and another senior department official that was prepared for Barr to evaluate whether evidence in special counsel Robert Mueller's investigation could support an obstruction of justice prosecution of the president. Barr has said he looked to that opinion in concluding that Trump did not illegally obstruct the Russia probe.
The Justice Department turned over other documents to CREW as part of the group's lawsuit, but declined to give it the memo. Government lawyers said they were entitled under public records law to withhold the memo because it reflected internal deliberations among lawyers before any formal decision had been reached.
But Jackson said those arguments were disingenuous because the memo was prepared for Barr at the same time as a separate Justice Department letter informing Congress and the public that Barr and other senior department leaders had concluded that Trump had not obstructed justice.
She said the memo could therefore not have been “predecisional” in nature if the Justice Department had already decided that there would be no obstruction case.
In its motion Monday, Justice Department lawyers said the government never meant to mislead the court but acknowledged that some of its language could have been clearer.
The department said the decision before the attorney general was not whether to prosecute Trump since the indictment of a sitting president is precluded by longstanding Justice Department policy. Rather, the question that the memo set out to address was whether the facts gathered by Mueller could merit a criminal case.
That question, the government says, was a genuine decision that had to be made.
“The Attorney General’s determination on that point — and on what, if anything, to say to the public about that question — undoubtedly qualifies as a decision, even if it could not have resulted in an actual prosecution of the sitting President,” Justice Department lawyers wrote.
“There was no legal bar to determining that the evidence did or did not establish commission of a crime, a determination the Attorney General made and announced," they added.
The brief portion of the memo that the department agreed to disclose shows that two senior Justice Department leaders advised Barr that, in their view, Mueller’s evidence could not support beyond a reasonable doubt the conclusion that Trump had obstructed justice.
The officials who wrote the memo — Steven Engel, then the head of the Office of Legal Counsel, and Edward O'Callaghan, the principal associate deputy attorney general — recommended that the Justice Department take a position on whether Trump had obstructed justice even though Mueller had pointedly chosen not to.
“Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report's failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public," the memo stated.
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