Judge Amy Berman Jackson Delivers Epic Benchslap In Mueller FOIA Suit

“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,'” U.S. District Judge Amy Berman Jackson wrote yesterday.

“But here, we have both.”

It’s hardly a ringing endorsement of Bill Barr’s leadership of the Justice Department. And although the DOJ did succeed in withholding most of the documents sought by Citizens for Responsibility and Ethics in Washington (CREW), the court excoriated the Department for deceiving both the court and the public with regard to the roll out of the Mueller Report.

On March 24, 2019, approximately 10 seconds after Mueller handed in his homework, Barr fired off a letter to Congress announcing that the Special Counsel had been unable to find conclusive evidence of crimes and would not be indicting the president. In Barr’s telling, this decision was in no way based on the DOJ’s longstanding policy that a sitting president cannot be charged, but rather Mueller was ceding prosecutorial discretion to the Attorney General, who had thought long and hard about it before declining to prosecute.

None of those things was true, which is why the Special Counsel publicly rebuked Barr in a March 27 letter for failing to “fully capture the context, nature, and substance” of the report and sowing “public confusion about critical aspects of the results of our investigation.” In reality, Mueller said he was bound by DOJ precedent and was thus compiling a list of possible obstruction charges for Congress to consider as part of its constitutional duty to adjudicate presidential conduct.

The instant case involves a March 24 internal DOJ Memo purportedly advising Bill Barr as he weighed the decision (haha) whether to bring charges against President Trump. The Department described the advice as both “pre-decisional” (i.e., exempt from disclosure under the deliberative process privilege), and an attorney-client communication. Once again, none of those things was true.

After in camera review of the document “which DOJ strongly resisted,” Judge Jackson discovered a whole section of that memo which “offers strategic, as opposed to legal advice, about whether the Attorney General should take a particular course of action … a subject that the agency omitted entirely from its description of the document or the justification for its withholding.”

Ooopsie!

But worse than that, the bit the Department deliberately concealed from CREW and the Court “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.”

The memo in question wasn’t “pre-decisional,” and no one on the email chain drafting it thought they were “deliberating” whether to charge Trump with a crime. Indeed, the memo was written contemporaneously with the longer explanation to Congress as to why the president would not be charged. So much for the deliberative process privilege.

As for attorney-client privilege, the DOJ pinky swore that the memo was drafted primarily by the Office of Legal Counsel, but the record says otherwise.

“While the memorandum was crafted to be ‘from’ Steven Engel in OLC, whom the declarant has sufficiently explained was acting as a legal advisor to the Department at the time, it also is transmitted ‘from’ Edward O’Callaghan, identified as the Principal Associate Deputy Attorney General,” the court notes.

In Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just (“EPIC”), U.S. District Judge Reggie Walton wrote that “Attorney General Barr distorted the findings in the Mueller Report.” And yesterday, Judge Jackson agreed with his analysis of Barr’s candor.

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’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.

Not, as they say, a great look.

CREW v. DOJ [Docket via Court Listener]

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