The panel of three judges, led by Chief Judge Sri Srinivasan, said that whether or not there was “bad faith,” the government “created a misimpression” and could not stop release under the Freedom of Information Act.
The memo was written by two senior Justice Department officials for then-attorney general William P. Barr, who subsequently told Congress that there was not enough evidence to charge Trump with obstruction of special counsel Robert S. Mueller III’s inquiry. A redacted version was released last year but left under seal the legal and factual analysis.
Department officials argued that the document was protected because it involved internal deliberations over a prosecutorial decision. But the judges agreed with Jackson that both Mueller and Barr had clearly already concluded that a sitting president could not be charged with a crime. The discussion was over how Barr would publicly characterize the obstruction evidence Mueller had assembled, the Justice Department conceded on appeal.
“The court’s … review of the memorandum revealed that the Department in fact never considered bringing a charge,” the panel wrote. “Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court—what, if anything, to say to Congress and the public about the Mueller Report.”
The court said that if the Department of Justice had accurately described to Jackson the motivations behind the memo, the document might be considered protected. Federal courts generally give deference to the government in such cases.
“We have held that an agency’s deliberations about how to communicate its policies are privileged, just like its deliberations about the content of those policies,” the court wrote. But they said the government forfeited that argument by insisting the memo was about the charging decision and resisting a review that showed otherwise.
“Any notion that the memorandum concerned whether to say something to the public went entirely unargued — and even unmentioned” until the appeal, the court said. “We cannot sustain the withholding of the memorandum on a rationale that the Department never presented to the district court.”
Jackson castigated the government for that omission, saying that CREW’s assessment of the memo “was considerably more accurate than the one supplied by the Department” even though the nonprofit “had never laid eyes on the document.”
Barr ultimately told lawmakers that since Mueller had declined to reach a conclusion on obstruction of justice, he and his deputy made their own determination that the evidence was lacking. When Mueller’s full report was released weeks later, his office said there was “substantial evidence” of obstruction. He also wrote a letter to Barr saying the attorney general had mischaracterized his team’s work.
Citizens for Responsibility and Ethics in Washington, the nonprofit that sued for the document’s release, celebrated the ruling on Twitter and a spokesman for the ethics watchdog called it a “major victory for transparency.”
“Attorney General Barr cited this memo as a reason not to charge President Trump with obstruction of justice,” CREW spokesman Jordan Libowitz said in a statement. “The American people deserve to know what it says. Now they will.”
The court held release of the memo for a week so the Justice Department can weigh an appeal. The department could ask the full U.S. Court of Appeals for the D.C. Circuit or U.S. Supreme Court to keep the document under seal. A Justice spokeswoman declined to comment, as did Barr.