Criminal Justice

DOJ must release memo involving investigation into Trump’s actions during election probe, appeals court says

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Trump and Barr

Former President Donald Trump and former U.S. Attorney General William Barr in 2019. Photo from the U.S. Department of Justice, PD US DOJ, via Wikimedia Commons.

Updated: A federal appeals court ruled Friday that the U.S. Department of Justice must release a 2019 internal memo that urged former U.S. Attorney General William Barr to conclude that former President Donald Trump had not obstructed justice.

In its Aug. 19 decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed the lower court, which determined that the DOJ failed to show that the deliberative-process privilege—which protects records that document a government agency’s internal deliberations—applied in the case involving the memo.

Barr had received the memo from the head of the DOJ’s Office of Legal Counsel and another DOJ official as part of their consultations over then-special counsel Robert Mueller’s 2019 report, which found insufficient evidence to support a charge based on collusion between Russia and the Trump campaign during the 2016 presidential election. Mueller, in the report, also chose not to decide whether Trump’s actions during the investigation amounted to crimes.

“In particular, the court held that the department had not identified a relevant agency decision as to which the memorandum formed part of the deliberations,” the D.C. Circuit said. “The department’s submissions, the court explained, indicated that the memorandum conveyed advice about whether to charge the president with a crime. But the court’s in camera review of the memorandum revealed that the department in fact never considered bringing a charge.”

The Washington Post, Politico, Bloomberg and CNN have coverage.

In its decision, the D.C. Circuit contended that the memo also contained the government’s deliberations over what to say to Congress and the public about Mueller’s report.

“The department’s submissions in the district court gave no indication that the memorandum related to Attorney General Barr’s decision about making a public statement on the Mueller report,” the appeals court said. “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.”

Citizens for Responsibility and Ethics in Washington, a government watchdog organization, filed the lawsuit under the Freedom of Information Act, seeking disclosure of the memo and related records. According to Politico, some opponents of Trump have asked U.S. Attorney General Merrick Garland to also reconsider the issue now that Trump is no longer a sitting president and could be criminally prosecuted.

The DOJ released the unredacted memo Wednesday, report, Law360, the New York Times and Reuters.

The memo concluded that evidence cited in Mueller’s report is not sufficient to support a conclusion beyond a reasonable doubt that Trump obstructed justice.

“The report identifies no actions that, in our judgment, constituted obstructive acts, done with a nexus to a pending proceeding, with the corrupt intent necessary to warrant prosecution under the obstruction-of-justice statutes,” the memo said.

The memo argued that many of Trump’s actions can be explained by his desire to have the FBI director tell the public that he was not under investigation. There is also evidence that Trump acted because he though that the Mueller investigation was interfering with his government agenda, the memo said.

Samuel Buell, a professor at the Duke University School of Law, told the New York Times that the memo, “reads more like a defense lawyer’s brief than a full and balanced analysis citing the legal authorities.”

See also: “Will Trump face federal indictment? Garland says DOJ pursues justice ‘without fear or favor’” “If DOJ prosecutes Trump, what charges could it bring? Experts consider possibilities” “Trump and law prof likely ‘dishonestly conspired’ to block election vote count, judge says” “Justice Department lawyers threatened mass resignations if Trump appointed loyalist to pursue election claims”

Updated Aug. 25 at 3:45 p.m. to add information on the release of the memo. Corrected Aug. 29 at 9:55 a.m. to clarify the Mueller report findings.

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