A federal appeals court on Wednesday questioned the Biden administration’s efforts to conceal large portions of an internal legal memo clearing former President TrumpDonald TrumpOmar, Muslim Democrats decry Islamophobia amid death threats On The Money — Powell pivots as inflation rises Trump cheers CNN’s Cuomo suspension MORE of wrongdoing in connection with the investigation led by special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff’s book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE.
A three-judge panel on the D.C. Circuit Court of Appeals grilled a Justice Department (DOJ) attorney during a hearing on why the memo should be protected when it appeared then-Attorney General William BarrBill BarrMichael Cohen officially released from prison sentence Incoming NAACP Legal Defense Fund president sees progress against ‘revitalized mission to advance white supremacy’ Fox’s Bartiromo called Bill Barr ‘screaming’ about election fraud: book MORE had never been considering whether to bring charges against Trump.
Judge David Tatel suggested that the evidence the government provided to a district court to support its argument that the memo should not be disclosed does not establish that it is protected under exemptions to the Freedom of Information Act (FOIA).
“If you just sit back and look at the record we have, what it looks like is a memo drafted to justify or explain a decision he easily made,” Tatel, a Clinton appointee, told the DOJ lawyer. “That’s not pre decisional. That’s not protected. And since it’s the government’s burden to prove that this is covered by exemption, I’m looking for any evidence to suggest that my impression from what I’ve said so far is wrong.”
The Biden administration is appealing a district court judge’s ruling that the 2019 memo crafted by the Justice Department’s Office of Legal Counsel (OLC) be released in response to a FOIA lawsuit.
The DOJ previously lifted some redactions of the memo prior to its appeal, but officials maintain that the bulk of the document containing the legal justification for why Trump did not commit obstruction of justice should remain concealed from the public.
U.S. District Judge Amy Berman Jackson, an Obama appointee, sided in May with the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had sued for the memo nearly two years before.
The lawsuit came in the wake of the release of the Mueller report and Barr’s pronouncement that the special counsel’s findings did not support the conclusion that Trump had committed obstruction of justice during the course of the investigation.
Barr had said that his determination was made after consulting with the OLC, which is tasked with providing administrations with legal advice and issuing opinions that establish the executive branch’s legal stance on a broad range of issues.
In Jackson’s May decision, she found that the Justice Department had failed to show that the memo qualified for FOIA exemptions for internal deliberations over government decision-making, because charging Trump with a crime was never an option on the table due to department policy that prohibited prosecuting a sitting president.
The judge also said it appeared that Barr had already come to the conclusion that the report cleared Trump of wrongdoing before the memo was published.
Jackson accused Barr of misleading the public about the contents of the Mueller report in the days between receiving the final draft and turning it over to Congress. She also said that DOJ lawyers had misled her in arguing that the memo contained privileged deliberations over whether to recommend charging Trump with a crime.
“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,” Jackson wrote. “The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions contradict 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.”
DOJ lawyer Sarah Harrington told the D.C. Circuit on Wednesday that the department should have been more clear and precise in its arguments to the district court, but argued that the memo is clearly protected from disclosure under FOIA because it contains frank advice to high-level government officials.
“If agency advisers are chilled from giving their most candid advice to principals that will lead to worse outcomes for agencies and for the public at large,” Harrington said. “We do not want agency lawyers to write advice memos as if they are press releases, even — and I would say particularly — in high-profile and politically-sensitive matters, which is surely what was happening here.”
She apologized for how the DOJ portrayed its lower-court arguments, but maintained that the department had never claimed that the memo should be protected because it was written in the process of deciding whether or not to prosecute Trump.
But Anne Weismann, an attorney representing CREW, argued on Wednesday that in FOIA cases, the burden of proof is on the government to show that a particular document should not be released and the DOJ’s claims to the district court misleadingly suggested that the memo was protected as a part of privileged deliberations over a prosecutorial decision.
“This was not an errant slip of the tongue,” Weismann said. “This was a repeated argument that the government made in the district court that misled both CREW and the court.”
It’s unclear when the three-judge panel will issue a ruling.