[While the DOJ has not announced whether it will appeal, a
spokesperson for the watchdog behind the case said that "the American
people deserve to know what it says. Now they will."]
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APPEALS COURT ORDERS RELEASE OF SECRET MEMO BARR ‘USED TO UNDERCUT
THE MUELLER REPORT’  
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Jessica Corbett
August 19, 2022
Common Dreams
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_ While the DOJ has not announced whether it will appeal, a
spokesperson for the watchdog behind the case said that "the American
people deserve to know what it says. Now they will." _

Then-U.S. Attorney General William Barr attended an event on July 15,
2019, Saul Loeb/AFP via Getty Images)

 

A FEDERAL APPEALS COURT on Friday ordered
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release of a 2019 memorandum about whether then-President Donald Trump
obstructed Special Counsel Robert Mueller's investigation into Russian
interference in the 2016 presidential election.

Citizens for Responsibility and Ethics in Washington (CREW)—the
watchdog fighting to reveal the U.S. Department of Justice (DOJ) memo
prepared for then-Attorney General Bill Barr—celebrated the ruling
as a win.

"Attorney General Barr cited this memo as a reason not to charge
President Trump with obstruction of justice," said CREW spokesperson
Jordan Libowitz in a statement. "The American people deserve to know
what it says. Now they will."

BREAKING: We won! We're going to get the secret memo Barr used to
undercut the Mueller Report and claim it was insufficient to find
Trump obstructed justice. And we're going to make it public.

— Citizens for Ethics (@CREWcrew) August 19, 2022
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The unanimous ruling from three judges of the U.S. Court of Appeals
for the District of Columbia Circuit affirmed a lower court's opinion
about the DOJ Office of Legal Counsel memo—a redacted version of
which was made public
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year.

D.C. Circuit Chief Judge Sri Srinivasan, joined by Judges Judith
Rogers and David Tatel, outlined how the DOJ tried to conceal most of
the memo "based on the deliberative process privilege, which protects
records documenting an agency's internal deliberations en route to a
governmental decision," but the lower court judge, Amy Berman Jackson,
rejected that argument.

Jackson determined the DOJ failed to show that the privilege
applied—specifically, she found that the department "had not
identified a relevant agency decision as to which the memorandum
formed part of the deliberations," Friday's ruling highlights.

"The department's submissions, the court explained, indicated that the
memorandum conveyed advice about whether to charge the president with
a crime. But the court's in camera review of the memorandum revealed
that the department in fact never considered bringing a charge," it
continues. "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."

As _Bloomberg_ detailed
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Srinivasan... wrote that any analysis in the memo about bringing
obstruction charges was more like a "thought experiment."

Srinivasan noted that the department expressed "regret" about leaving
a "misimpression that an actual charging decision was under
consideration," but he wrote that it missed opportunities to address
the true purpose of the memo.

The court rejected the government's request for another chance to make
the case for keeping the full memo secret. Srinivasan wrote that the
Justice Department might have successfully argued to keep the memo
sealed if it had revealed the public messaging purpose from the
beginning and then tried to invoke what's known as the deliberative
process privilege, but that it was too late now. 

The DOJ has a week to consider appealing the latest decision. _The
Washington Post_ reported
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spokespeople for the department and Barr declined to comment.

_Politico_ noted
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Trump was never charged in Mueller's probe and the special
prosecutor's final report declined to opine on whether what he did in
response to the investigation amounted to a crime.

However, some Trump opponents have called on the Attorney General
Merrick Garland to reconsider the issue now that Trump is no longer
president. Release of the long-sought DOJ memo could fuel those calls
and draw more unwanted attention to Trump's potential criminal
liability at a time when he is besieged by a slew of other legal woes
relating to his handling of classified government records, his role in
inspiring many of those involved in the January 6 attack on the
Capitol, and his broader efforts to overturn Joe Biden's win in the
2020 presidential election.

As _Common Dreams_ reported
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a federal judge gave the DOJ a week to propose redactions to the
warrant affidavit containing the information that led to last week's
search of Mar-a-Lago, Trump's Florida home.

_This post has been updated with additional details about the ruling._

JESSICA CORBETT is a staff writer for Common Dreams.

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