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Federal Court Says DOJ Must Hand Over Memo on Mueller Report

Former Attorney General William Barr
By Joseph Fawbush, Esq. on May 06, 2021 1:23 PM

A federal district court in D.C. has held that the Department of Justice must release a memo it prepared regarding the release of the Mueller Report. On May 3, Judge Amy Berman Jackson ordered the DOJ to release a document requested by Citizens for Responsibility and Ethics in Washington (“CREW") under a Freedom of Information Act lawsuit.

In Case You Forgot About the Mueller Report

In 2019, Special Counsel Robert Mueller delivered a detailed 448-page report to Congress regarding President Trump's role in potential Russian interference with the 2016 election. Attorney General William Barr first received the report. Prior to sending it to Congress, Barr summarized the report in four pages, which Judge Jackson was not impressed with: “The attorney general's characterization of what he hardly had time to skim, much less study closely, prompted an immediate reaction . . ." Judge Jackson wrote. Barr subsequently told Congress he worked with the Office of Legal Counsel in summarizing the report.

FOIA Request

The same day Barr held his press conference announcing his opinion of the findings of the Mueller Report, CREW filed a lawsuit under the Freedom of Information Act to get the documents Barr used to make the determination to not prosecute the President for obstruction of justice. In response to the lawsuit, the DOJ produced some documents with redactions and withheld a number as well, arguing that the documents constituted legal advice and were protected by attorney-client privilege and the deliberative process privilege granted under the FOIA.

While CREW relented for most of the withheld documents, it contested two. Whether these documents were properly withheld was the issue before the district court.

One Document Not Protected Under FOIA

Judge Jackson held that one document was protected and one was not. The document that will be revealed was not an advisory opinion given to the attorney general prior to his making a decision whether to prosecute, Judge Jackson wrote. Instead, the document assumed that the determination had already been made. “[T]he 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." Judge Jackson added that the “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."

Nor was the document protected by attorney-client privilege. According to Judge Jackson, Section I of the memo CREW was seeking contains no legal advice at all, instead offering only strategic advice. And while Section II of the memo contains a mix of strategic and legal advice, “the the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel's report and the Attorney General's summary" means that this section is not protected.

Will We Learn Anything New?

While the memo may potentially shed light on the strategic considerations Attorney General William Barr and the OLC were considering at the time of the release of the Mueller Report, it is not clear from Judge Jackson partially redacted opinion whether anything unanticipated is in the memo.

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