On Friday, a three-judge panel on the D.C. Circuit Court of Appeals ordered the release of an internal Justice Department memo prepared for then-Attorney General Bill Barr on the subject of Donald Trump’s potential obstruction of the department’s investigation into Russian interference in U.S. politics, largely led by Robert Mueller.
Two high-ranking Justice Department officials put together the sought after document. Originally, the department argued for protecting the document on the basis it ostensibly contained deliberations over a decision regarding prosecution, but separately, Special Counsel Robert Mueller and Barr himself established they weren’t pursuing Trump charges. Both federal Judge Amy Berman Jackson and the three-judge appeals court panel found such was clear, and the department admitted (only in the appeals process) the discussion centered on public descriptions of evidence gathered in the Mueller probe — a significantly different area of concern. (Mueller’s probe also examined whether Trump was obstructing it.) What the department would be doing with the evidence was separately established, with hesitations no matter almost any outcome to charge a sitting president, but Barr evidently mischaracterized the findings, with the memo potentially providing insight into why he did so.
“The court’s… review of the memorandum revealed that the Department in fact never considered bringing a charge,” the appeals judges said. “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 appeals court judges indicated the department accurately characterizing the contents of the memo, instead of using the false description of prosecutorial deliberations, might have entailed securing the document’s protection, but the appeals court said it couldn’t use an argument for further shielding the memo that wasn’t presented at the lower level. “We cannot sustain the withholding of the memorandum on a rationale that the Department never presented to the district court,” the judges said.
Back around the time final conclusions from Mueller’s probe were released, Barr said he and then-Deputy Attorney General Rod Rosenstein concluded evidence for charging Trump with obstruction of justice was insufficient. Although Mueller didn’t pursue charges, conclusions from the Mueller team were actually that “substantial evidence” for Trump’s perpetration of obstruction was uncovered. Why did Barr so drastically diverge from the findings of Mueller’s probe?
The underlying case leading to this appeals court action was filed under provisions of the Freedom of Information Act by the government watchdog group called Citizens for Responsibility and Ethics in Washington. The appeals court delayed the release of the memo itself for a week to allow opportunities for appealing. In the meantime, the judges concluded that no matter whether “bad faith” underlined the original, deceptive characterizations of the document from the department, Justice personnel “created a misimpression.” A redacted version of the disputed document was released last year. Trump, as a former president, is now facing Justice Department scrutiny over classified documents held at Mar-a-Lago following his presidency, and materials associated with that probe indicated three pieces of federal law potentially violated. That investigation, according to Justice Department official Jay Bratt, who handles counterintelligence, is in its “early stages.” Trump’s vulnerability isn’t ending.