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Appeals court says DOJ improperly redacted memo to AG Barr on Trump obstruction
BY JOHN KRUZEL - 08/19/22 10:45 AM ET

https://thehill.com/regulation/court-battles/3607920-appeals-court-says-doj-improperly-redacted-memo-to-ag-barr-on-trump-obstruction/

The Department of Justice (DOJ) improperly shielded portions of a memo to Attorney General William Barr that concerned whether former President Trump obstructed a special counsel probe into his campaign’s dealings with Russia during the 2016 presidential election, a federal appeals court in Washington ruled on Friday.

The unanimous ruling by a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit affirmed a federal judge’s May 2021 decision that the DOJ had improperly redacted parts of the Trump-era legal memo that should have been made public as part of a government watchdog’s records request lawsuit.

The memo at issue was prepared at Barr’s request by the DOJ’s Office of Legal Counsel (OLC) in March 2019, ostensibly to provide legal advice that would go on to guide Barr’s decision not to charge Trump with obstruction of justice related to his alleged interference with former special counsel Robert Mueller’s investigation into his 2016 campaign’s contacts with Moscow.

The DOJ, responding to a Freedom of Information Act (FOIA) lawsuit seeking disclosure of the memo, argued that virtually the entire memorandum and related records should be shielded under a FOIA exemption that protects internal government deliberations.

But the D.C. Circuit Court panel on Friday, affirming the lower court’s decision, ruled that the DOJ had failed to prove that the so-called deliberative-process privilege justified keeping the records under wraps.

The panel said the OLC memo did not in fact contain a legal analysis of whether Barr should pursue charges against Trump, but rather what, if anything, Barr should say to Congress and the public about Mueller’s voluminous findings.

“Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege,” Chief Judge Sri Srinivasan wrote for the panel.

The DOJ did not immediately respond to a request for comment.

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Whether the full memorandum is released soon likely depends on if the DOJ pursues an additional appeal, either to the full bench of the D.C. Circuit Court or to the Supreme Court.

This tees up another politically fraught decision for Attorney General Merrick Garland, whose earlier move to appeal the judge’s ruling ordering his department to release a document disappointed Trump critics and prolonged the FOIA battle that was initiated by the government watchdog group Citizens for Responsibility and Ethics in Washington.

Updated at 11:37 a.m.