A three-judge bench headed by Chief Justice Sri Srinivasan said whether there was “bad faith” or not, the government had “created a false impression” and could not stop the disclosure under the Freedom of Information Act.
The then Attorney General William B. The memo was written by two senior Justice Department officials for Barr, who later told Congress that special counsel Robert S. Mueller said there was insufficient evidence to charge Trump with obstructing the III’s investigation. A A revised version was published last year But left under the stamp of legal and factual analysis.
Department officials argued the document was protected because it covered internal discussions about the prosecutorial decision. But the justices agreed with Jackson, saying that both Mueller and Barr had clearly concluded that a sitting president was already in office. Can’t blame. The DOJ acknowledged in the appeal the discussion of how Barr would publicly classify the incriminating evidence collected by Mueller.
“A review of the court’s … memorandum revealed that the department did not actually consider bringing an indictment,” the panel said. wrote. “Instead, the memorandum is about a separate decision that has gone completely unaddressed by the government in its submissions to the court — what, if anything, it tells Congress and the public about the Mueller report.”
The court held that if the Justice Department had accurately described the motives behind the memo to Jackson, the document could be considered protected. Federal courts generally give deference to the government in such cases.
“We hold that an agency’s advice on how to communicate its policies is privileged, as are its discussions about the content of those policies,” the court wrote. But they said the government waived that argument by insisting the memo was about the tolling decision and resisted a review that showed otherwise.
“Any idea of whether the public should have anything to say was completely unargued — unaddressed — until the appeal,” the court said. “We cannot sustain the district court’s withholding of the reference on grounds that the department never advanced.”
Jackson slammed the government for that omission, saying CREW’s assessment of the memo was “significantly more accurate than the one provided by the department,” even though the nonprofit “never focused on the document.”
Barr told lawmakers that Mueller has refused to make a finding of obstruction of justice. made their own decision That there is no evidence. During Muller Full report Released weeks later, his office said there was “substantial evidence” of obstruction. He too Wrote a letter The attorney general told Barr that he had misrepresented the work of his group.
Citizens for Responsibility and Ethics in Washington, a nonprofit organization that sued for the document’s release, Celebrated the verdict A spokesperson for Twitter and the ethics watchdog called it “a big win for transparency.”
“Attorney General Barr cited this memo to avoid charging President Trump with obstruction of justice,” CREW spokesman Jordan Liebowitz said in a statement. “The American people deserve to know what it says. Now they will.”
The court vacated the memo for a week so the DOJ could weigh an appeal. The DOJ can ask the full US Court of Appeals for the DC Circuit or the US Supreme Court to seal the document. A spokesman for the DOJ declined to comment, as did Barr.