The Justice Department scored a temporary win Monday in its fight to keep secret parts of a key memo concerning the Mueller investigation. But that victory came with another blistering order from a federal judge, who has accused the department of misleading her in the litigation over the memo’s release.
U.S. District Judge Amy Berman Jackson said on Monday the department can continue to withhold the memo from public view while it appeals her previous order that it be released.
The memo was ostensibly written by the department’s Office of Legal Counsel — which operates as an in-house legal advice shop for the federal government — in the weekend between when special counsel Robert Mueller delivered his report to Attorney General Bill Barr and when Barr released a misleading summary of the report to Congress. The department has released some parts of the memo but has refused to release other sections, prompting a Freedom of Information Act lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW).
In the litigation, the department, under Attorney General Barr, suggested that those sections were discussions of whether Trump could be prosecuted based on what was laid out in the report. The department argued that the discussions fit in a FOIA carveout for internal deliberations about an agency decision before the decision is made. Jackson, who eventually got to view the memo herself, has since revealed that the memo covered other aspects about how Trump’s department was responding to the Mueller report. She has railed against the department for obscuring those aspects of the memo in the litigation.
In an order Monday explaining why she was nonetheless putting on hold her previous order that the memo be released, Jackson said that the damage to the department would be irreparable if it was forced to release the memo before it was given the chance to appeal.
But she expressed continued frustration with the department’s conduct in the litigation. Her scorn was directed not just at the assertions made by the Trump-era Justice Department about the memo and why it should remain secret, but also at how the Justice Department, under President Biden, is now trying to spin those assertions and her rulings against them.
“The concern that led to the Court’s ruling was that in its attempt to shield the Barr Memo from public view, DOJ inaccurately described the decision-making process that was supposedly underway,” Jackson wrote, before taking aim at how the Justice Department was now trying to play down those inaccuracies.
“The Court did not rule as it did because the declarations were ‘confus[ing];’ it found the declarations and the justifications in the agency’s pleadings for invoking Exemption 5 to be misleading,” she said, referring to the FOIA exemption the department is citing in the case.
The case is a prominent example of how the department, under Attorney General Merrick Garland, is struggling to clean up the messes left by the Trump administration. The Biden administration has come under fire for letting the desire to protect DOJ institutional concerns outweigh the push for full transparency into how the previous administration politicized the department.
Jackson has accused the DOJ of mischaracterizing the memo’s purpose and content. In a decision that also pointed to internal DOJ communications at the time, she ordered last month that the section be released. The department has since released one of the sections in question, but is continuing to fight in court to keep another section unreleased.
The judge’s latest order tore into the department for how — in its request that her earlier order be paused for appeal — it tried to dance around the lack of candor earlier in the litigation. Jackson spent only a page and half of the eight page order explaining why she was pausing her order, and the rest of the order was devoted to tweaking the DOJ’s posturing in the case.
“The Department chose not to tell the Court the purpose of the memorandum or subject it addressed at all, and no amount of apologizing for ‘imprecision’ in the language it did use can cure the impact of that fundamental omission,” she wrote, invoking the term Biden’s DOJ used to explain the Trump-era mischaracterizations in the case.
She said that the DOJ’s latest defense of its previous conduct in the case “depends upon a very cramped representation of what troubled the Court.”
Jackson had revealed in her previous opinion that much of the memo concerned not just whether the DOJ would bring charges against Trump — a decision that was already baked in because of the department’s internal policy barring indictments of sitting president. The memo also addressed whether Barr could nonetheless still assess the evidence to determine whether it otherwise would warrant charges. The memo also weighed in on what Barr could say publicly about those determinations. She said the memo’s discussion was not just a legal one, but one related to the public relations rollout of the Mueller report.
On Monday, Jackson yet again took the department to task for not being forthright in the litigation about those aspects of the memo.
She noted that the department had the opportunity earlier in the litigation to clarify that the redacted portions of the memo were not aimed at discussing whether or not to charge Trump. She pointed specifically to a filing by CREW that summed up the DOJ’s descriptions of the memo in a way now known to be inaccurate.
Instead of addressing the supposed misunderstanding at that stage in the case, the DOJ “doubled down” on the misleading impression it was giving CREW and the court, Judge Jackson said Monday.
“The fact that DOJ made no effort to correct CREW’s reading of the declarations, and it argued forcefully that it was indeed up to the Attorney General to initiate or decline prosecution reveals that at the time it submitted the pleadings justifying the FOIA withholdings, it fully intended to convey the impression that was conveyed,” she wrote.
“It took the in camera review DOJ resisted to reveal that the Barr Memo was something other than what had been described.”
Read the order below: