August 20, 2022

Appeals court orders release of secret Justice Department memo on Mueller probe

The U.S. Justice Department must release a memo prepared for former Attorney General William Barr after the conclusion of special counsel Robert Mueller's probe into ties between then-President Donald Trump's 2016 campaign and Russia, a federal appeals court ordered Friday.

A D.C. Circuit Court of Appeals panel voted 3-0 to uphold U.S. District Court Judge Amy Berman Jackson's previous order that the March 2019 document, written by two senior Justice Department officials, be released, according to Friday's order.

The order essentially found that the Justice Department mishandled a Freedom of Information Act request from the watchdog group Citizens for Responsibility and Ethics in Washington, which sought the document.

Justice Department officials argued the document was protected because it regarded internal discussions about a prosecutorial decision. The appeals court, however, found that officials failed to show that the memo was part of a process to advise Barr on whether to prosecute Trump.

Mueller's report did not conclude whether Trump's actions amounted to obstruction of justice, leaving the decision to Barr -- who cited the memo as a reason not to charge the former president with obstruction of justice.

"But the court's in camera review of the memorandum revealed that the Department in fact never considered bringing a charge," Chief Judge Sri Srinivasan wrote in the order.

"Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court -- what, if anything, to say to Congress and the public about the Mueller Report. We affirm the district court."

The court noted that it has previously held that "an agency's deliberations about how to communicate its policies are privileged, just like its deliberations about the content of those policies."

Srinivasan wrote that the decision is a "rare case" that falls outside of the typical understanding that the government would have "little difficulty establishing that a prosecutor's views about the sufficiency of the evidence form part of a privileged decisional process" about whether to prosecute.

A version of the document was eventually released last year but it redacted critical legal and factual analysis portions.

"We won! We're going to get the secret memo Barr used to undercut the Mueller Report and claim it was insufficient to find Trump obstructed justice," CREW said in a tweet on Friday. "And we're going to make it public."

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