A Trump-era memo no one wanted you to see is causing problems for Biden and the DOJ

Democrats had been holding out hope that the Senate’s confirmation of ex-DC Circuit Judge Merrick Garland would let the sunlight in on every dirty little secret of the Trump-era Justice Department. Unfortunately, a three-line filing submitted to US District Judge Amy Berman Jackson on Monday seemed to put an end to all that.

Since May 2019, Citizens for Responsibility and Ethics in Washington, a good-government and transparency advocacy group, has been waging a court battle under the Freedom of Information Act. The aim is to gain access to key documents which detail how former Attorney General William Barr handled ex-Special Counsel Robert Mueller’s decision to not offer any opinion on whether Trump obstructed the investigation into Russian election interference in 2016.

At the centre of the dispute is a memo prepared by the Justice Department’s Office of Legal Counsel — the executive branch’s in-house legal adviser. That memo opined on whether Mueller had compiled sufficient evidence to establish if Trump had violated the law by (among other things) pushing a succession of characters — such as then-White House Counsel Don McGahn and outside adviser Corey Lewandowski — to induce then-Attorney General Jeff Sessions to fire him. Mueller’s report detailed ten separate obstructive acts committed by Trump. But while the ex-FBI director did not draw a legal conclusion as to whether Trump had committed a crime, he also noted that he could not say that Trump had not committed a crime, either.

The Trump-era Justice Department, not exactly a fan of FOIA to begin with, resisted most — if not all — attempts to force disclosure of Mueller-related documents. In this case, DOJ officials argued that the memo in question constituted legal advice that is shielded by “deliberate process privilege,” which allows executive branch officials to keep secret their own internal consultations with agency lawyers. The advice in question this time? In the DOJ’s telling, it was the Office of Legal Counsel’s reasoning which Barr claimed to follow when he announced that Trump had not obstructed Mueller’s investigation.

But Judge Jackson, an Obama appointee who presided over a string of criminal cases against Trumpworld figures which were brought by Mueller’s team, wasn’t having it. On May 3rd, after personally reviewing the memo at issue, she released an official opinion which was previously sealed from public view. She found that Barr “was not then engaged in making a decision about whether the President should be charged with obstruction of justice” because “the fact that he would not be prosecuted was a given”.

Because, in her words, the memo was crafted for the purpose of “getting a jump on public relations,” Jackson ordered it released in its entirety. But rather than comply with her ruling and allow the public wholesale access to the document Barr claimed to have relied on when giving Trump reason to claim that Mueller “totally exonerated him,” the Garland-led Justice Department filed an appeal late Monday evening.

Speaking on MSNBC’s The Last Word with Lawrence O’Donnell late Monday evening, House Intelligence Committee Chair Adam Schiff said he’d hoped that Garland would choose transparency over “blindly asserting” executive branch prerogatives because the latter “ought to give way to the greater public interest”.

“After all, this involved an investigation into wrongdoing by the president of the United States and an attorney general, Bill Barr, who was willing to essentially lie to the country to conceal,” he said. “And I think that public interest and full disclosure ought to outweigh whatever concern the Biden Justice Department may have about the precedent, particularly when, as the court has found and the court has read this document, it isn`t an internal deliberation over a legal issue. It`s essentially spin. I don`t think the Biden administration should get in the way of disclosing that spin to the public.”

When Schiff was informed, live on air, that the Justice Department had chosen to appeal Judge Jackson’s ruling rather than release the Barr-era memo, he called the decision “disappointing” and said he hoped the Biden administration would lose its appeal before the District of Columbia Circuit Court of Appeals.

Walter Shaub, the former Office of Government Ethics boss and senior ethics fellow at the Project on Government Oversight, also summed up the feelings of those who’d hoped that Garland would err on the side of transparency when he took to Twitter early on Tuesday.

Legal experts argue that Garland and the rest of Justice Department leadership may feel they have no choice but to defend the position first staked out by the Trump administration. Such expressions of continuity are, in fact, relatively common, since judges tend to frown upon attorneys abruptly switching arguments for no other reason than changed marching orders from a new administration.

Moreover, many Justice Department veterans argue that not defending the use of the deliberate process privilege in this case, however dubious the reasoning for it might be, could undermine future administrations’ attempts to shield privileged information for legitimate reasons.

Glenn Kirschner, an ex-federal prosecutor who has called for a wholesale investigation of Trump-era abuses in the form of a “Trump crimes commission,” fears that such arguments, however well-intentioned, will only serve to provide a safe space for abuse of power and wholesale violations of law. Bad-faith actors would then be able to count on future administrations to shield their abuses under the guise of protecting the executive branch’s own privileges.

“We’re giving corruption an opportunity to thrive,” he said. “What’s more important in this moment time… is transparency. I actually think, as a general proposition, the federal government should be moving toward transparency in every area that doesn’t damage national security or ongoing investigations.”

Another veteran Washington hand — an ex-aide to a former GOP high officeholder who requested anonymity because their current job does not allow them to speak with media — said the Republican Party’s authoritarian turn under Trump requires a wholesale rethink.

“Until Barr started using the Justice Department as Trump’s sword and shield, you could generally count on the DOJ to do the right thing, even if the tendency was to err on the side of secrecy,” they said. “But I don’t think any decision made by any federal agency during Trump’s presidency deserves to be given a presumption of regularity or good faith by the Biden administration or the courts.”

Instead, the ex-GOP adviser said Garland should order a review of every Trump-era case that the DOJ is actively defending to determine whether the position the government argued before January 20 was adopted to benefit Trump personally instead of serving a legitimate interest, whether policies being defended were promulgated for the purpose of harming the former president’s real or perceived enemies, and whether continuing to advance those arguments would serve to cover up corruption or malfeasance. If any of those conditions are met, they argued that the Justice Department should back off.

Kirschner, the former federal prosecutor, suggested that transparency advocates could, in this case, pierce the shield of deliberate process privilege by citing the “crime-fraud exception”. This is an exception which prosecutors often use to gain access to otherwise privileged documents when prosecuting corrupt attorneys.

Bill Barr had effectively helped Trump “in getting away with 10 counts of felony obstruction of justice,” he said. “Just as attorney-client privilege yields to the crime-fraud exception, just as the executive privilege yields to the crime-fraud exception, the deliberative process privilege — which, frankly, is kind of less compelling than the other more traditional privileges anyway — should also yield to the crime fraud exception.”