Judge Orders DOJ to Release Advice on AG Barr's Summary of Special Counsel Report

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Amy Berman Jackson (D.D.C.) ordered the Justice Department to release a memo that contains advice to former Attorney General Barr on his infamous four-page summary of the Mueller Report and his conclusion that evidence in the report didn't support an obstruction-of-justice case against former President Trump. Judge Jackson gave DOJ until May 17 to comply and release the memo, or to file a motion to stay pending appeal.

The case, Citizens for Responsibility and Ethics in Washington v. U.S. DOJ, arose when CREW filed a FOIA request for any records related to consultations between former AG Barr and DOJ's Office of Legal Counsel related to his four-page summary of the Mueller Report and his conclusion that the report didn't contain sufficient evidence to charge Trump. Barr mentioned that he had consulted with OLC in relation to his four-page letter, and his conclusion that its evidence "is not sufficient to establish that the President committed an obstruction-of-justice offense," when he later testified before Congress. (Recall that Barr purported to summarize the Mueller Report in this widely panned letter before the Report's public release. The letter misleadingly said that the Special Counsel "did not draw a conclusion--one way or the other--as to whether" former President Trump committed obstruction of justice. Barr concluded that the Report didn't contain sufficient evidence to charge Trump with obstruction.)

DOJ argued that the OLC advice was protected under FOIA Exemption 5 and the deliberative process and attorney-client privileges. Judge Jackson rejected those claims.

In short, based on an in camera review of the documents, the court recognized that Department officials wrote Barr's four-page letter before and during the time when it wrote the OLC memo. In other words, the OLC memo couldn't have been part of deliberations leading to Barr's letter, and it couldn't have provided legal advice related to Barr's letter, because Department officials drafted the letter before and simultaneously with Barr's letter. To put the finest point on it: the AG and DOJ already decided not to prosecute former President Trump before the Department wrote the OLC memo.

The court sharply criticized Barr and Department officials who provided affidavits, given that the plain evidence contradicted their claims. Here's just a flavor, on the court's analysis of the deliberative process privilege:

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiffs here was well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

The ruling gives the DOJ until May 17 to comply and release the memo, or to appeal.