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(Photo by Win McNamee/Getty Images)
Long ago in a galaxy far, far away there lived a Special Counsel named Robert Mueller. He had been tasked with determining whether the sitting president had conspired with Russia to help him get elected in 2016. Ultimately, the former FBI director concluded that he had not, although mainly due to incompetence, and not for lack of trying. But because Donald Trump was a raging toddler id with his finger on the nuclear button, he couldn’t just sit there and wait for the investigation to play out. Instead, he and his cronies engaged in a dizzying array of efforts to obstruct justice and stymie the investigation.
Mueller dutifully chronicled these efforts in his final report, making what was very clearly an impeachment referral to Congress, and stating pointedly, “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. Based on the facts and the applicable legal standards, we are unable to reach that judgment.”
This was bad news for Attorney General Bill Barr, who auditioned for his job with a mash note cum legal memo saying that the the Russia investigation was partisan bullshit. So approximately five seconds after the 448-page Mueller Report landed on his desk on March 22, 2019, Barr leapt in front of the cameras to say that poor Robert Mueller had been too confused to reach a conclusion about whether to charge Donald Trump, so he handed it off the DOJ. And — hey, wouldn’t ya know it! — the Department had given Trump a clean bill of health. Nothing to see here, folks, time to go back to Hillary’s emails.
Not for the first time, and certainly not the last, Bill Barr was lying his ass off. It’s longstanding DOJ policy that it can’t indict a sitting president, so Trump’s guilt or innocence was never at issue. Knowing that the Mueller Report wouldn’t be released for a few weeks as his office reviewed it for redactions, Barr deliberately lied to support his preferred false narrative that the Report had exonerated Trump. And then, crucially, he told his team to dummy up a memo justifying the decision he’d already announced.
As we wrote last year:
The DOJ wasn’t deciding whether or not to prosecute Trump. They were retconning a hypothetical declination of prosecution for a fictional civilian Trump who didn’t have an OLC memo declaring him above the law. And [OLC head Steven] Engel and [PADAG Ed] O’Callaghan were very clear that they were making this decision to spare Trump the ignominy of having Mueller’s meticulous evidence of obstruction hanging over him like a gun in the first act.
Enter Citizens for Responsibility and Ethics in Washington (CREW) which filed a FOIA suit seeking to shake loose that memo and landed the issue in the courtroom of US District Judge Amy Berman Jackson. The Justice Department argued that the memo was not subject to disclosure because it was “deliberative,” i.e., drafted to help Barr decide whether to prosecute Trump for obstruction of justice. In fact, that decision was a foregone conclusion, and the Department was lying to the court in an effort to cover up Barr’s efforts to spin the Mueller Report.
Or, as Judge Jackson held at the time,“Summary judgment may be granted on the basis of agency affidavits in FOIA cases, when ‘they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ But here, we have both.”
The Justice Department appealed to the DC Circuit, because surrendering its institutional prerogatives is not a thing with the DOJ. But they fared no better last week with Judge Srinivasan, who authored the opinion with Judges Rogers and Tatel, upholding Judge Berman’s decision and sharing her indignation at the DOJ’s blatant lies to the court.
[I]t is now apparent that the March 2019 memorandum recommended reaching a conclusion on the evidentiary viability of an obstruction-of-justice charge as a means of preempting a potential public reaction to the Mueller Report. In that light, if the Department’s submissions to the district court had connected the memorandum to a decision about making a public statement, then the district court might well have concluded that the memorandum was privileged. But that is not how the Department elected to justify its invocation of the privilege in the district court.
Nor was the appellate panel impressed by the Department’s dogged insistence on sticking to the lie, only pivoting to a claim that debates about how to spin the Report were deliberative after they’d already been caught deceiving the court.
The Department was given a number of opportunities to justify its withholding of the March 2019 memorandum. After initially attaching two declarations to its motion for summary judgment, the Department attached an additional declaration to its reply brief. Those three declarations, coupled with the Department’s two briefs, gave ample opportunity to identify Attorney General Barr’s messaging to the public as the relevant decisional process. But the Department never did so. Nor did the Department ask for an additional chance to clarify its position after seeing the district court’s summary-judgment decision, which pointed out that the Department’s submissions up to that point had created a misimpression about the nature of the decisional process.
A “misimpression,” cough cough. It’s amazing how many “misimpressions” Bill Barr made during two years as the chief law enforcement officer in the land. Almost like that’s what he was hired to do in the first place.
CREW v. DOJ [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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