Government

Garland Admits Barr Lied About The Mueller Report, But Insists On DOJ's Sacred Right To Cover It Up

DOJ gonna DOJ.

By  
on

(Photo by Demetrius Freeman-Pool/Getty Images)

Safe to say that U.S. District Judge Amy Berman Jackson is pissed. Last week she delivered an epic benchslap, ordering the DOJ to cough up its communications on how to spin the Mueller Report to Citizens for Responsibility and Ethics in Washington. And when the government appealed her decision last night, she unredacted the portions of her own memorandum opinion summarizing exactly what the Department was trying valiantly to keep hidden.

TL, DR? Bill Barr told a shit ton of lies.

It all started on Friday, March 22, 2019, when Robert Mueller finally handed in his homework. The Special Counsel was very careful to say that, while he was unable to find evidence that Trump coordinated with Russia to ratf*ck the election, he was not going to opine as to whether the president had obstructed justice out of fear 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.”

In plain English, Mueller said that he was neither able to clear the president because of the possible criminal nature of the conduct uncovered in the investigation, nor was he able to prosecute him due to the DOJ’s position that a sitting president could not be indicted. And so he was handing the matter off to congress to decide.

Barr immediately lurched out in front of the microphones to announce that poor Robert Mueller, former head of the FBI and a longtime prosecutor, had been flummoxed by the evidence before him. He just couldn’t make a decision whether or not to prosecute, even when he tried to clear his mind by disregarding the OLC memo saying that a sitting president can’t be indicted. So the Special Counsel was deputizing Barr himself to make a prosecutorial judgment, and, hey wouldn’t you know it, Barr and his team were giving Trump a clean bill of health and deciding not to prosecute.

Literally none of that was true, as we all discovered three weeks later when the 448-page report was released. But the president and his allies used that time to spin the report as exculpatory, when in fact it carefully laid out several possible grounds for an obstruction charge.

Sponsored

Meanwhile, CREW filed a FOIA suit to shake loose the internal DOJ deliberations undergirding the Barr’s announcement and the letter he sent to congress memorializing it. Which leads us to the instant issue regarding a March 24, 2019 memo “from” Steven Engel in the OLC and PADAG Ed O’Callaghan.

The DOJ argued that the memo was drafted to help Barr decide whether to prosecute Trump for obstruction of justice — an odd position because literally everyone involved agreed from the jump that a sitting president could not be indicted. And indeed when Judge Jackson forced the Department to let her review the documents in camera, they said something else entirely.

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 Engel and 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:

Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public. Therefore, we recommend that you examine the report to determine whether prosecution would be appropriate.

Left unsaid, or perhaps still redacted, is that this clean bill of health would serve as a convenient shield should congress get any dangerous ideas about taking up Mueller’s explicit suggestion that it had the constitutional obligation to adjudicate presidential misconduct.

Sponsored

As Judge Jackson said in a portion of her May 3 memo unredacted today, “DOJ made a strategic decision to pretend as if the first portion of the memorandum was not there and to avoid acknowledging that what the writers were actually discussing was how to neutralize the impact of the Report in the court of public opinion.”

For an entire year, the DOJ has argued that the deliberative process privilege entitles it to withhold communications regarding the government’s decision not to prosecute the president. And now that they’ve been caught lying, they’re still saying it.

Yeah, don’t faint.

“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the Department argues in a motion for stay of the order to disclose pending appeal. Apologizing for “imprecision in its characterization of the decisional process,” the government insists that the deliberative process privilege still applies even when the issue is a hypothetical scenario back-formulated to justify a decision already taken by the AG.

And in a move sure to impress Her Honor, the DOJ shrugs off the bad fact that the announcement of the decision was drafted before the memo justifying it was complete, likening it to a judge deciding a case and deputizing her clerk to draft an order.

“The law clerk’s draft remains predecisional because the judge after reading the analysis, can still be persuaded or dissuaded by the analysis and reach a different conclusion,” the government insists. Because it has to.

The DOJ is not about to set a precedent that makes it easier to FOIA the attorney general’s communications. Bill Barr has done enough damage to the Department — they’re certainly not going to let him decimate the deliberative process privilege, too.

And with the judiciary stocked with adherents of the unitary executive theory, they’ll probably get away with it. But it’s gonna be ugly.

CREW v. DOJ [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Topics

, , , ,