United States District Judge Amy Berman Jackson has ordered the DOJ to release a March 2019 OLC memo that former Attorney General William Barr used to justify his decision to clear Trump of obstruction in the Mueller Investigation.
The release comes in response to a FOIA lawsuit filed by Citizens for Ethics and Responsibility in Washington (CREW), but apparently, the Judge did not mince words when issuing her ruling. In fact, according to this article from Business Insider, Jackson took issue with Barr’s claim that the OLC memo supported his decision:
In Tuesday’s ruling, US District Judge Amy Berman Jackson said the unreleased OLC memo that Barr used to clear Trump of obstruction actually “contradicts” his claim that the decision to charge the president was “under his purview” because the special counsel Robert Mueller did not “resolve the question of whether the evidence would support a prosecution.”
Over at The Hill, Judge Jackson’s decision was described as “scathing” and “accused Barr and department lawyers of deceiving the public.” The Hill reports that the DOJ had argued that the full unredacted memo “should be withheld because it fell under exceptions to the public records law for attorney-client privilege and deliberative government decision making.” In response, Judge Jackson said “that those claims were not consistent with her own review” or “the timeline revealed by internal emails among top Justice Department officials.”
A review of the court document provides Judge Jackson’s words directly and given the context, perhaps “scathing” is an appropriate description (emphasis added):
And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. pg. 25
Judge Jackson goes on to elaborate a bit more in case her message wasn’t clear in the proceeding paragraph:
The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time. pg. 25
Remember that Barr claimed that the Mueller report left the decision to the AG and while I’m not going to rehash the particulars of the Barr Letter or how Barr clearly mischaracterized the Mueller report, it’s at least as obvious to Judge Jackson as it was to all of us that (again, emphasis added):
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. pg. 19
This is also a good opportunity to remind folks that Judge Jackson isn’t the only Federal Judge to take issue with Barr’s handling of the entire affair — let’s rewind to a little over a year ago when U.S. District Judge Reggie Walton had a few choice things to say:
By ERIC TUCKER March 5, 2020
WASHINGTON (AP) — A federal judge on Thursday sharply rebuked Attorney General William Barr’s handling of the special counsel’s Russia report, saying Barr had made “misleading public statements” to spin the investigation’s findings in favor of President Donald Trump and had shown a “lack of candor.”
The scolding was unusually blunt, with Walton saying Barr had appeared to make a “calculated attempt” to influence public opinion about the report in ways favorable to Trump. The rebuke tapped into lingering criticism of Barr, from Democrats in Congress and special counsel Robert Mueller himself, that he had misrepresented some of the investigation’s most damning findings.
There’s no telling what if anything will come of any of this, but let’s hope that Trump, Barr, and the entire rotten bunch of them will one day be brought to Justice.
UPDATE Approx. 10:53pm — I’m a novice diarist and obviously, I did not stick around long, sorry! At the time I hit publish, I was having trouble finding additional source material including from CREW and while I found the court document from their site, I missed both their tweet and their news release about the ruling. Thanks to jqjacobs for posting the tweet in the comments and The Geogre for posting a link to the news release!
One other important question that I’m not able to get a clear answer on as of right now — above and beyond it being a 5 year period, When does the statute of limitations run out for bringing an obstruction charge against Trump?
Mueller said Trump could be charged with a crime, including obstruction of justice, after he leaves office (Business Insider July, 24, 2019). And as we all know from reading the Mueller Report — and specifically Volume II, Mueller listed four considerations that guided the obstruction investigation and the second consideration made it clear that a criminal investigation was permissible even if the OLC memo prevented prosecution — and furthermore, there was no immunity after the President left office:
Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible.3 The OLC opinion also recognizes that a President does not have immunity after he leaves office.4 And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.
3 OLC Op. at 257 n.36 (“A grand jury could continue to gather evidence throughout the period of immunity”).
4 OLC Op. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment”).
The investigation is DONE. The facts are there. What are the next steps in charging Trump with Obstruction and is there a snowball’s chance in hell of it happening (my hot take is NO)?
Further complicating the issue of the statue of limitations is the concept of “equitable tolling,” which this Lawfare article explains as, “a judicial suspension of the statute of limitations, devised by courts to yield fair and just results.” What I was able to understand was certainly interesting, but it’s way above my pay grade.
UPDATE 5/5/21 Approx. 12:07pm — One more update as another user published an excellent deep dive into some of the nuance of Jackson rejecting the DOJ’s claim that the memo was “predecisional,” Jackson describing how CREW’s speculative assessment of the contents of the memo were “considerably more accurate” than the DOJ’s representation, and Jackson’s use of the “in camera” review process. PLEASE VISIT THAT DIARY FOR MORE ON THIS SUBJECT!
On March 22, 2019 Mueller submitted his report to then Attorney General Barr. Rather than immediately release the report Barr sat on it for weeks. However, on the very day Mueller gave him the massive 400 page report Barr released a letter notoriously “summarizing” Mueller’s conclusions. Among summarized assertions was that Mueller “did not draw a conclusion – one way or the other” as to whether Trump obstructed justice and that this left the question in the hands of Attorney General.
P.S. Apologies for the shallow dive here, but this was breaking news and IANAL and I’m really not sure what to make of it above and beyond being happy to see that the wheels of justice do seem to be grinding away.
P.P.S. Perhaps a lawyer type of two will weigh in or another DKos user might be able to offer some intelligent commentary here.