Two years after Mueller completed his investigation, it has made the news again. In particular, a hubbub broke out in May about the fight to expose a Barr DOJ memo from 2019. This is a memo that opens a window into the deliberations of top DOJ officials as they conspired to bury the crimes outlined in the Mueller Report. As such, it is a key document: it could expose DOJ’s cover up of Trump’s crimes. As of now, it is only partially released. This is the story so far.
Background
In March 2019, Special Counsel Mueller delivered his long-awaited report to Department Of Justice (DOJ). Volume 1 laid out Russia’s interference in the 2016 election, while Volume 2 detailed Trump’s attempts to obstruct this investigation. It contained summaries written for public consumption; however, instead of releasing those instantly, Attorney General Barr kept the painstaking 400 pages hidden behind the walls of the DOJ for a good three weeks. In the meantime, Barr himself set the narrative with his own brief letter to Congress, stating that Mueller left the decision to us, and we have decided that Trump is innocent.
Those three weeks solidified public opinion. When the report was finally released to the public. It was apparent that Barr had tried to snow-job the public and Congress to protect Trump; the report was much more damning than Barr had made it sound.
At the press conference he held to announce the public release of the report, Barr claimed he exonerated Trump of the obstruction of justice charge based on advice from his Office of Legal Counsel (OLC), after they scrutinized the legal issues raised by Volume 2 of the Mueller Report. Based on OLC’s advice, he said, Rosenstein and himself determined that Trump did not commit a crime.
Naturally, Trump instantly crowed, “No Collusion, No Obstruction!” This was his go-to statement about the entire “Russia Hoax,” as he called it.
FOIA
Well, what was that internal advice that Barr received from OLC?
Naturally, people were curious. Some of those people were Citizens for Responsibility and Ethics in Washington (CREW) a watchdog non-profit group. The very day of Barr’s press conference as he released the Mueller Report, CREW filed a FOIA request to expose the advice that OLC ostensibly provided to Barr on whether Trump committed a crime.
Sorry, no dice, Barr responded, essentially stating that there was no possible reason anyone might need to see those internal memos.
Analysis
Marcy Wheeler, about the best DOJ hound dog there is, covered Barr’s burial of the Mueller Report in a few of her posts. Here she points out that when Barr hand-waved away Volume 2 of the Mueller Report, where he painstakingly lists how Trump obstructed justice, Barr essentially gave carte blanche to Trump to go ahead and obstruct justice some more.
In particular, as Barr himself had said during his confirmation hearings, a President dangling pardons to co-conspirators as an inducement to stop them from ratting on him would certainly be a crime. Mueller lists specific instances when Trump did exactly that—with Manafort, Gen Flynn, Roger Stone, and Michael Cohen. By exonerating Trump, Barr gave his blessings to Trump to go ahead and complete those criminal quid pro quos.
Court case
Stymied, CREW went to court. In May 2019, they filed a case with the DC District Court to compel DOJ to release the documents.
DOJ, under Barr, finally did release a set of documents. But, they still kept two particular memos hidden—a Document 15, and a Document 6. These were both memos written by OLC to DOJ.
On what basis did they keep these two memos secret? Because, they told the court, since OLC is sort of like an attorney for DOJ, the advice that OLC gave to DOJ can be kept just between the two of them—due to attorney-client privilege. This is known as “exemption 5” for FOIA requests. It can be applied to “deliberative” memos; where DOJ is getting advice or deliberating on whether to charge a crime or not. Such memos have to, as a matter of simple logic, be “predecisional”—written before the decision is actually made.
CREW was not satisfied. What deliberation? they said in their own court response. DOJ’s letter to Congress went out almost instantly as the doorstopper of the Mueller Report came out. How could they have “deliberated” so quickly? That excuse just doesn’t hold water.
Besides, CREW went on, there was no decision for DOJ to make, so the memo could not have been “predecisional”.
To separate the two issues that Barr muddled, they could potentially have deliberated on these two points:
- When Trump obstructed justice in the ten ways described by Mueller’s Volume 2, did that constitute a crime?
- If Trump did commit a crime, should DOJ charge him?
Neither needed deliberation, CREW claimed. For the first, DOJ was not supposed to decide on the “whether a crime was committed” question—that was up to Special Counsel Mueller to decide (and he clearly said he did not exonerate Trump).
For the second, Mueller already stated that he considered himself bound by DOJ policy that Presidents cannot be charged while they are Presidents. If DOJ wanted to object to Mueller, and claim that the “should we charge” question was open for debate, they should have objected back then, not after the Report was released. And indeed, they weren’t objecting to this anyway.
So…there was no possible deliberation going on, and the memo CREW sought the release of could not be deliberative. Those memos are probably to do with the PR exercise of clearing Trump, even though clearing Trump was not their job, rather than deciding whether to charge him, CREW said.
Analysis:
Asha Rangappa, ex-FBI Special Agent and Law School Professor, explains why she thinks Mueller made a mistake by not drawing an affirmative conclusion that Trump did commit a crime. By leaving this question artfully open (“if we had confidence the President did not commit a crime we would have said so“), he left a vacuum for Barr to fill with a falsehood.
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Judge ABJ’s in camera review
Earlier this year, this case came across Judge Amy Berman Jackson’s desk. She has been privy to a number of other Mueller-related cases, including Manafort’s trial and Roger Stone’s—thus is no stranger to the seriousness of the events investigated by Mueller. She also got to see, in full, the two contentious memos: Document 15 and Document 6, so that she could decide whether DOJ’s secrecy was warranted. A judge being privy to secrets is known as in camera review.
Her response was scathing. I learned a new Latin phrase from her ruling: ipse dixit, which means “dogmatic and unproven statement”. That’s how she characterized DOJ’s excuse for not releasing the documents. The use of that phrase might provide a hint about her opinion.
First, she permitted DOJ to keep Document 6 hidden.
But Document 15, she said, ought to be released in full—because CREW’s guess that it was written as PR strategy was spot on. In fact, Section 1 of that memo was entirely dealing with the question of whether Barr should publicly exonerate Trump—that they all agreed that DOJ was not going to pursue charges was assumed. This amounts to PR, not law. It is not predecisional because the decision has already been made. She goes as far as calling DOJ “disingenuous” in her ruling.
They didn’t even care enough to come up with a good cover story. CREW painted a picture by looking at timestamps on documents and emails; Barr’s letter to Congress, in which the decision to exonerate Trump has already been made, went out on the same day as the so-called “predecision” memo.
Judge ABJ dug into this further. Not just the same day, she pointed out—the letter to Congress actually went out before the so-called “pre-” memo. And, it was the same group of people hatching both together: DAG Rod Rosenstein and PADAG Ed O’Callaghan from DOJ, Steve Engel and Brian C. Rabbit from OLC.
Advice from one group to another, this was not. She demanded that DOJ release Document 15 in full, but gave them two weeks to object.
Commentary
Mueller-watchers were generally hip to Bill Barr’s bad faith, but Rod Rosenstein’s perfidy, as revealed in these memos, shocked even these hardened cynics. Attorney and commentator Dirk Schwenk called it a horrifying betrayal. Allison Gill, who hosts the Mueller She Wrote podcast, said she feels mounting rage; and pointed out that the reporting on Rosenstein promising Trump (amid tears) that he would “land the plane” with regards to the Mueller Report, could only have had one meaning, in retrospect—that he would bury it.
Merrick Garland’s DOJ response
Seasons change; elections are won and lost; people come and go. DOJ now is under the leadership of President Biden’s AG, Merrick Garland. Thus, people assumed, Garland’s DOJ would forthwith comply with Judge ABJ’s order to release Document 15 in full, seeing no reason to protect prior DOJ employees.
However, things are never quite that simple. DOJ first asked for an extension of a week to ponder the release of Document 15. On May 24, they released a response. Their response, replete with “apologies for the confusion” language, says they have no objection to releasing Section 1 of Document 15 in full. This is the section that ABJ scathingly accused of being a PR effort to clear Trump in the court of public opinion. They also have no issue with ABJ fully unredacting her own ruling.
But—they went on to say, we would still like to keep Section 2 of Document 15 hidden. While clearly it was not deliberative about whether to charge Trump (that decision, as ABJ points out, was already made), it was indeed deliberative about a hypothetical: whether Trump’s actions as noted in Volume 2 of the Mueller Report constitute a crime, in the opinion of the OLC.
Therefore, on May 24th, Section 1 of Document 15 was released. As one can see, however, Section 2 is completely blacked out. This is the section where top officials of Trump’s DOJ discussed how they could exonerate Trump despite the damning account Mueller had written of how Trump obstructed justice. As such, it should be extremely interesting to all.
Commentary
DOJ’s decision to hold back some of the documents CREW has asked for has disappointed many, who hoped that Merrick Garland’s appointment as Attorney General would quickly expose the crimes of his predecessors. Perhaps what people are missing is that it is the same DOJ employees who, under Barr, had to make one sort of representation to the Judge—and now, after her scathing rejection of their reasoning, have had to walk it all back. As Marcy Wheeler points out, the front-line DOJ officials whose names are on the signature lines, both on the original Barr DOJ response to FOIA that the Judge said was disingenuous, and on the Garland DOJ’s response to the Judge last week that was so apologetic in tone, while still asking to keep parts of it hidden—are the same.
What I understand from Marcy Wheeler’s close read is that often it isn’t the bigwigs who do the crimes who have to defend keeping documents hidden. That task often falls to the lower rungs. No wonder this latest brief is so apologetic in tone. The front-line DOJ workers were put in the position of having to defend the indefensible. It isn’t clear to me that this decision even went up to AG Garland’s level.
Nevertheless, it ought to. In Rachel Maddow’s telling, the Garland DOJ’s apology for the Barr DOJ’s misdeeds is “gross” and “humiliating”. She had on Sen. Sheldon Whitehouse, who said (paraphrasing) that since DOJ is unable or unwilling to defend their 2019 exoneration of Trump from the obstruction of justice charge, they owe it to us to pick it up now.
Prof. Jen Taub’s Catch-22 analysis
The fact that Trump’s obstruction of justice is a live issue is exactly why, says law professor Jen Taub, DOJ might still ask to keep it hidden. Her thread lays out a complex argument.
This is what I understood from it: it is that releasing the document makes it seem as though DOJ does not agree with the previous DOJ’s logic. At the same time, releasing it makes it quotable DOJ policy, of sorts.
So if this document argues that Presidents can never obstruct just by hiring or firing appointees—releasing it makes it seem as though DOJ thinks Biden can obstruct justice this way, which becomes politically problematic (so Trump had that protection, Biden does not?).
On the other hand, no matter what the analysis of the other obstruction of justice counts, it creates problems for the DOJ. If the document argues Trump did obstruct justice, DOJ would feel obliged to charge him now (a monumental decision they may not want to make under pressure). If the document argues that somehow he did not obstruct justice, even though he flagrantly did, then other defendants could wave that document around to show why they should also be forgiven.
Others speculated that perhaps this was political football. DOJ did not want to take the affirmative step of releasing sensitive documents, but they are both hoping and expecting that Judge ABJ will overrule them and release Document 15 anyway.
Will she? Stay tuned, as they say.
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I depended heavily on the work of Marcy Wheeler and Allison Gill’s podcast while researching this piece. Please support them—support Wheeler here, and click here for Gill’s podcast and merch.
