US judge orders Justice Dept to release Trump obstruction memo

A federal judge has ordered the release of a legal memorandum the Justice Department’s legal counsel office prepared for then-Attorney General William Barr before he announced his conclusion that Trump had not obstructed justice during an investigation into Russian election meddling and possible collusion.

The Justice Department had refused to give the March 24, 2019, memorandum to a government transparency group that requested it under the Freedom of Information Act, part of a larger attempt to gain a clearer understanding of the department’s decision-making leading up to Barr’s announcement.

Justice officials had argued the document represented the private advice of lawyers and was produced before any formal decision had been made about whether Trump would be prosecuted. Because the memo was produced before any formal decision had been made, it was therefore exempt from disclosure under public records law, the officials argued.

But US District Judge Amy Berman Jackson said the Justice Department had obscured “the true purpose of the memorandum” when it withheld the document.

She said the memo from the Justice Department’s Office of Legal Counsel contained “strategic, as opposed to legal advice” and that both the writers and the recipients already had a shared understanding as to what the prosecutorial decision would be when it was written.

“In other words, the 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,” Jackson said in an order dated Monday.

The decision by Barr and senior Justice Department leaders to clear Trump of obstruction, even though special counsel Robert Mueller and his team pointedly did not reach that conclusion, was a significant moment for the president.

The announcement, and a four-page summary of Mueller’s report, preceded the release of the 448-page document and helped shape public perception of the investigation’s conclusions.

Mueller subsequently complained to Barr that his summary had not fully captured the investigation’s findings and had caused “public confusion”.

Jackson also appeared to join Mueller’s criticism.

“The Attorney General’s characterisation of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Jackson wrote.

‘Written at the same time’

Citizens for Responsibility and Ethics in Washington had filed the public records request seeking communications about the obstruction decision. At issue in the lawsuit pending before Jackson were two documents the group wanted.

Jackson ruled that one of the documents, described by a Justice Department official as an “untitled, undated draft legal analysis” submitted to the attorney general as part of his decision-making, was properly withheld from the group.

But she ordered the release of the other memo, which was prepared for Barr by the then-head of the Office of Legal Counsel and another senior Justice Department official and which concludes that the evidence assembled by Mueller’s team would not support an obstruction prosecution of Trump.

Jackson said the memo “was being written at the same time and by the same people who were drafting the Attorney General’s letter to Congress setting forth his views on the basis for a prosecution”.

Therefore, she said, “one simply cannot credit the declarant’s statement that the Attorney General made the ‘decision’ he announced based on the advice the memo contains”.

The government has until May 17 to appeal the decision.