The Justice Department filed an appeal of a federal judge’s order to release the full Office of Legal Counsel memo supporting former Attorney General William Barr’s decision following the receipt of special counsel Robert Mueller’s report related to whether former President Donald Trump committed obstruction of justice.
A brief filing by the Biden administration, arguing it would suffer “irreparable harm” without a stay, came just before the end of the deadline on Monday to release the nine-page memo in full, set by Judge Amy Berman Jackson.
However, the Justice Department did reveal all of page 1 and much of page 2, which is far more than an almost-entirely blacked-out version that was disclosed previously, showing the OLC recommended to Barr that “although the Special Counsel has declined to reach a conclusion [on obstruction], we think that the Department should reach a judgment on this matter.”
Still unknown to the public are any prosecutorial deliberations specifically focused on Trump’s conduct.
Jackson, an Obama appointee who critiqued Barr’s handling of the Mueller report, issued an opinion earlier this month rejecting arguments from the Trump Justice Department that the advisory memo from March 2019 had been part of the deliberative process and subject to attorney-client privilege, and thus not subject to public release following a Freedom of Information Act lawsuit by Citizens for Responsibility and Ethics in Washington.
“The Court’s decision was substantially premised on the view that the government’s briefs and declarations incorrectly described the nature of the decisional process in which the Attorney General was engaged,” the Justice Department said in its filing Monday, adding, “The government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused.”
The Justice Department insisted it “did not intend to mislead the Court” and “respectfully submits that imprecision in its characterization of the decisional process did not warrant the conclusion” that the memo was “covered by the deliberative process privilege because it is both deliberative and predecisional.”
At issue now is a decades-old Office of Legal Counsel opinion concluding that sitting presidents can’t be prosecuted, and a distinction DOJ is making between deciding whether a crime has been committed and whether a prosecution can or should be pursued.
The Justice Department examined the issue of whether a sitting president could be prosecuted in 1973 and “concluded that by virtue of his unique position under the Constitution the President cannot be the object of criminal proceedings while he is in office.” The Office of Legal Counsel affirmed this in 2000, saying that DOJ had previously “concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” and that “we believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.”
The DOJ said Monday that it “agrees that the Attorney General was not making a decision about whether to indict or prosecute, and we regret language that was imprecise in the government’s brief and the confusion it has caused,” but “the declarations and briefs on the whole made clear that the decision in question was whether the facts articulated by Volume II of the Special Counsel’s Report were sufficient to establish that the President had committed obstruction of justice, i.e., whether the facts constituted prosecutable conduct under the Principles of Federal Prosecution.”
Paul Colborn, a special counsel in the OLC, had told the court that “the document is a predecisional memorandum, submitted by senior officials of the Department to the Attorney General, and containing advice and analysis supporting a recommendation regarding the decision he was considering.”
But Jackson said, “CREW had difficulty swallowing this explanation,” and quoted the group as saying: “DOJ’s … arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice.”
The judge contended that her review of the redacted 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.”
DOJ said Jackson was misconstruing its point.
“While a decision whether to actually commence a prosecution, and a decision as to whether the evidence would be sufficient to establish a basis to prosecute, may be closely related, and while both involve assessments that are ‘prosecutorial’ in nature, they are not one and the same,” DOJ responded. “The Attorney General could seek advice on and decide whether the conduct in question met the legal standard for an offense and DOJ standards for bringing a prosecution under the Principles of Federal Prosecution, notwithstanding that an actual criminal prosecution was foreclosed by the prior OLC opinion. And because the existence of the OLC opinion foreclosing prosecution was widely known and acknowledged in both the Mueller Report and Attorney General Barr’s contemporaneous letter to Congress, the government had no reason to suggest (and certainly did not mean to suggest) that a decision whether to bring an actual criminal prosecution was in play.”
The Justice Department added: “The Attorney General’s determination on that point — and on what, if anything, to say to the public about that question — undoubtedly qualifies as a decision, even if it could not have resulted in an actual prosecution of the sitting President. There was no legal bar to determining that the evidence did or did not establish commission of a crime, a determination the Attorney General made and announced. In refuting the point that the Attorney General had nothing to decide, we did not mean to suggest that the Attorney General was deciding whether to commence an indictment or prosecution of the sitting President. … That option was foreclosed for reasons having nothing to do with the allocation of responsibility between the Special Counsel and the Attorney General, based on DOJ’s longstanding view that the sitting President was constitutionally immune from prosecution.”
The now-unredacted portion of the OLC memo shows DOJ advisers telling Barr that “we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes” and that “we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances,” and so, “were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.”
Mueller’s report, released in April 2019, stated that “given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction,” adding that “apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”
The special counsel said that “a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment” and that “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Mueller said, “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” and “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Barr’s letter, written in March 2019 prior to the release of the Mueller report, said that “the Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” The then-attorney general said that “after reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Barr wrote that “our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
Jackson contended that DOJ’s “redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie 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.”
The Justice Department and the Special Counsel’s Office put up a united front in May 2019 on a key issue related to obstruction of justice.
“The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination — one way or the other — about whether the President committed a crime. There is no conflict between these statements,” a joint statement from DOJ spokeswoman Kerri Kupec and Mueller spokesman Peter Carr said.
