Attorney General

Federal judge orders DOJ to release memo that said Trump shouldn't be prosecuted for obstruction

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DOJ building

The Department of Justice building in Washington, D.C. Photo from Shutterstock.com.

A U.S. Department of Justice memo concluding that former President Donald Trump should not be prosecuted for obstruction of justice was not protected by privilege because then-U.S. Attorney General William Barr had already reached that conclusion, a federal judge ruled Monday.

U.S. District Judge Amy Berman Jackson of Washington, D.C., ordered the release of the March 2019 memo drafted by the DOJ’s Office of Legal Counsel. Citizens for Responsibility and Ethics had sought the memo in a Freedom of Information Act lawsuit.

Politico, the New York Times and the Associated Press are among the publications with coverage of Jackson’s partly redacted May 3 opinion.

The DOJ argued that the Office of Legal Counsel memo was protected by the deliberative-process privilege because Barr relied on its advice when deciding whether to prosecute. But Jackson said her own review of the memo led her to conclude that a decision against prosecution “was a given.”

Jackson said the memo was being drafted at the same time that Barr staffers were writing a congressional letter concluding that evidence in former special counsel Robert Mueller’s report wasn’t sufficient for an obstruction prosecution.

Jackson also said the memo did not amount to legal advice protected by attorney-client privilege.

“The court is not persuaded that the agency has met its burden to demonstrate that the memorandum was transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege,” Jackson said.

Barr had released his recommendation and summary of the Mueller report to Congress before a redacted version of the report was available to the public.

“The attorney general’s characterization of what he’d hardly had time to skim, much less study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Jackson wrote.

Mueller later said Barr’s summary did not fully capture the substance of his report’s conclusions.

Jackson is an appointee of former President Barack Obama.

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