DOJ improperly handled Barr memo on Trump obstruction, appeals court says

A federal appeals court has ruled that the Department of Justice improperly handled and withheld parts of an internal memo to then-Attorney General Bill Barr that concerned whether former President Donald Trump obstructed justice in the infamous Russia investigation. 

The three-judge panel from the DC Circuit Court of Appeals issued the unanimous decision on Friday, upholding a lower court’s ruling from last year that determined the memo must be released.

The DOJ has argued that the March 2019 memo – which was sent to Barr from the department’s Office of Legal Counsel (OLC) and another senior department official – was part of the DOJ’s internal deliberations before a decision was made regarding special counsel Robert Mueller’s investigation into the obstruction allegations. 

The memo concerned whether former President Donald Trump obstructed justice in the Russia investigation.
Brandon Bell/Getty Images

Therefore, they claimed, the document should be exempt from public records requests. 

However, last year, District Judge Amy Berman Jackson called the argument “disingenuous” because the memo was prepared at the same time as a separate DOJ letter that would inform Congress and the public that the Department concluded Trump did not obstruct justice. 

The appeals court pointed out Friday that in his letter to Congress, Barr wrote that he determined the investigation did not support obstruction prosecution against the president – after consulting the OLC. 

It also revealed that while portions of the memo were released, DOJ officials “redacted references to a constitutional bar on prosecuting a sitting President,” meaning the Department failed to initially disclose that the OLC memo already established that Trump could not be charged with a crime while in office. 

Meanwhile, the Department said the memo focused on whether Mueller collected enough evidence to support the allegation that Trump obstructed justice, not as advice for Barr, according to the Associated Press.

The appeals court said that if the Department had been forthcoming on the memo directly related to Barr’s decision on Mueller’s report, the ruling might have been different. 

“Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege,” the court wrote. 

It is unclear how quickly the memo might be released as the DOJ is permitted to appeal the Friday ruling. 

The appeals court has also noted that their decision was “narrow” and should not be used to question previous “precedents permitting agencies to withhold draft documents related to public messaging.”

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