A federal judge in Washington, DC, said Monday she would suspend publication of a legal note on the Mueller report, but continued to challenge some of the Justice Department’s arguments in the case.
U.S. District Judge Amy Berman Jackson of the District of Columbia last month ordered that a memo from the Legal Counsel’s office on a possible prosecution of President Donald Trump based on Special Advisor Robert Mueller III’s findings be made public, citing discrepancies between the descriptions of GM officials in the memo and the memo itself, which she reviewed in private.
The Justice Department said it will appeal part of the decision and asked Jackson to stay his order while he takes the case to the United States Court of Appeals for the DC Circuit . Jackson granted the motion on Monday, arguing that “the public interest in disclosure now does not outweigh the Justice Department’s interest in preserving a privilege that would be lost if the court ordered disclosure.”
“What was completely lacking in the public discourse, however, is why the Attorney General issued an opinion in the first place, and this was first answered when the DOJ complied with this order. court to disclose Section I, “wrote the judge. . “While there may be an additional public benefit to disclosing the contents of Section II, the court will not deny the ministry the opportunity to challenge its decision in order to advance that interest at this time. “
The ruling is part of a public records lawsuit by the Citizens for Responsibility and Ethics watchdog group in Washington, which sued in 2019 over the documents. Jackson last month sided with the group, saying “the redactions and incomplete explanations obscure the true purpose of the memorandum, and the deleted parties belies the notion that it was up to the attorney general to make a prosecution decision. or that such a decision was left to the table at all times.
Last month, the Justice Department apologized to Jackson, saying “his memories could have been clearer, and he deeply regrets the confusion this has caused.”
“But lawyers and government officials did not intend to mislead the tribunal, and the government respectfully submits that the vagueness in its characterization of the decision-making process did not justify the conclusion that [the OLC memo] was not protected by the privilege of the deliberative process, ”the government lawyers wrote. “It also does not guarantee the conclusion here that the separate deliberative elements of Section II of this document are not protected.”
In her Monday order, Jackson wrote that while the Justice Department could face irreparable harm if its decision is not stayed, she did not believe the Department would succeed on the merits of her case.
“The stay motion does not identify a serious flaw in the legal standard applied by the Court, nor does it provide grounds for concluding that DOJ is likely to be successful in challenging the Court’s decision that he did not failed to fulfill its obligation to establish that the Barr Memo was properly withheld under exemption 5, ”she wrote, referring to the Freedom of Information Act provision cited by the government to protect the memo.
Jackson said that while she agreed that the note was deliberative, one of the elements of this provision of the Public Records Act, she was concerned that “in her attempt to protect Barr’s note from the sight of the public, the DOJ inaccurately described the decision-making process that was supposed to be taking place.
“The court did not rule as it did because the statements were” confused[ing]; ‘ he found the statements and justifications in the agency’s pleadings to invoke exemption 5 to be misleading, ”the judge wrote. “The department chose not to tell the tribunal at all the purpose of the memorandum or the subject it brought up, and no excuse for” vagueness “in the language it used can remedy the impact of this fundamental omission. “
She said the Justice Department “had had the opportunity to dispel the false impression he had created with his own language once before, and he didn’t seem to think his position was confusing then,” referring to a response brief filed by the department earlier in the litigation.
The judge said that when given the opportunity to state what the intent of the note was, government lawyers did not explain “that this meant Barr’s note contained related deliberations and advice. to the different question of whether, in view of the agency’s opinion that there was a constitutional bar to an indictment, the Attorney General should in any event present his judgment as to the strength of the indictment. evidence and, if so, what should that assessment be, ”but instead he“ doubled down ”by stating the memo was used to decide whether to prosecute Trump for obstructing justice.
“The fact that the Department of Justice made no effort to correct CREW’s reading of the statements, and strongly argued that it was indeed up to the Attorney General to initiate or deny prosecution reveals that” By the time he submitted the pleadings justifying the FOIA withholdings, it was fully intended to convey the impression that was conveyed, ”Jackson wrote. “It took the in camera review The DOJ resisted to reveal that the Barr Memo was something other than what had been described. Since the agency has the onus of justifying the withholdings in a FOIA case, once these inconsistencies and omissions were discovered, the court was not required to dissect the text to find a way to match the incomplete representations. of the DOJ with the memorandum itself.
And the judge also challenged an argument made by the department in its motion to stay the ruling, in which Department of Justice attorneys objected to Jackson’s conclusion that the memo was not “pre-sentence.” They pointed to another statement filed in the case, in which an official said Barr received “the substance of the notice” in the memo before sending a letter to Congress advising lawmakers of his decision not to. sue Trump.
“The point was not only that the final version of the Barr Memo was initialed after the letter was sent; the point was that the process of writing the letter to Congress and the process of creating the note to the attorney general were happening at the same time, involving the same people, so the timeline did not support the claim that the note played a special role in developing, as opposed to commemoration, the point of view of evidence that the attorney general had already decided he would choose to announce, ”the order says.
“In other words, besides insisting that there was a pending prosecution decision that was for the Attorney General to make, which is contrary to what the Justice Department is now saying . … The DOJ suggested that it was the Barr Memo that prompted the Attorney General to speak, when it appears that the decision to speak motivated the Barr Memo, ”the judge wrote.
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