Senate Democrats, in a letter Friday to Attorney General Merrick Garland, weighed in on a judge’s recent opinion accusing the Trump-era Justice Department of misleading her about the purpose of an internal memo related to the Mueller probe.
“To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them,” the Democrats, all members of the Senate Judiciary Committee, said.
They asked Garland not to appeal the judge’s ruling, which ordered the department to release currently-redacted portions of a memo ostensibly advising then Attorney General Barr on whether to prosecute President Trump based on what was described in the Special Counsel report.
A good government nonprofit sought the release of the memo via a Freedom of Information Act lawsuit, and in her opinion last week U.S. District Judge Amy Berman Jackson said that the department had lacked candor in the litigation around the document.
“This was not the first time that a court faulted DOJ for mischaracterizing facts in an effort to obfuscate Special Counsel Mueller’s true findings,” the Democrats said, noting that a separate judge’s opinion from last year said Barr had “distorted the findings” of the Mueller report.
The memo in question in the latest case was assembled during the weekend in 2019 between when Mueller delivered his report to Barr and when Barr released a supposed “summary” of Mueller’s report to Congress. In the FOIA case, the department said parts of the memo should be withheld because they fit into exemptions in the transparency law for pre-decision deliberations and attorney-client privilege. The department described the materials as the Office of Legal Counsel — which serves as the DOJ’s in-house legal advice shop — giving Barr legal advice on whether to pursue charges against Trump.
But when Judge Jackson ultimately got a look at those portions herself, behind closed doors, she learned that some of the sections in questions were offering Barr “strategic” advice, rather than legal counsel, according to her opinion. Jackson also noted internal DOJ communications from the day the memo was assembled showing that a decision to not prosecute Trump had already been made when the memo was still being drafted.
“In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given,” she said.
She said that the way the department described the memo in the case “served to obscure the true purpose of the memorandum.”
Jackson ordered that the department to release a portion of the memo it had sought to withhold. But she delayed the order until May 17, in case the department wanted to appeal it.
The Democratic Senators told Garland that “in order to help rebuild the nation’s trust in DOJ’s independence after four years of turmoil, we urge DOJ not to appeal” Jackson’s ruling.
Read the letter below: