A U.S. District Court of Appeals for the District of Columbia ruled on Friday that the Department of Justice must turn over an Office of Legal Counsel (OLC) memo that was sent to former Attorney General William Barr indicating the position that former President Donald Trump did not ‘obstruct justice’ in his response to Special Counsel Robert Mueller’s investigation of Russian collusion claims.
The Justice Department’s court-ordered public release of the OLC memo would further dispel accusations that Donald Trump violated any federal laws during his political campaign or in response to the federal investigation of Russiagate.
The legal victory for public transparency in the Russiagate probe was announced on Friday by the Citizens for Responsibility and Ethics in Washington, which is party to the appeal in U.S. District Court.
“The Department of Justice must turn over Office of Legal Counsel (OLC) advice the office gave to Attorney General William Barr about whether President Trump obstructed justice, according to a lawsuit filed by CREW,” the watchdog group announced in a statement.
“During a press conference in April, Barr discussed his decision that Trump did not obstruct the Special Counsel’s investigation and noted that he consulted the OLC before reaching his conclusion ‘that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense’,” the statement added.
Chief Judge Sri Srinivasan delivered the court’s majority opinion, which provided essential background on the case.
“Upon completing his investigation of Russian interference in the 2016 presidential election, Special Counsel Robert Mueller delivered a two volume, 448-page report documenting his findings to Attorney General William Barr,” the court notes. “The first volume addressed Mueller’s investigation into election interference, and the second volume addressed his ensuing investigation into whether President Trump had obstructed justice in his actions concerning the election-interference inquiry. Two days after receiving the then-confidential Mueller Report, Attorney General Barr sent a letter to Congress providing his overview of it.”
“With respect to the second volume, Barr’s letter explained that the Report did not reach a conclusion on whether President Trump’s actions amounted to obstruction of justice; that Barr thus was left to make his own determination in that regard; and that he had concluded that the evidence in the Report was insufficient to show that President Trump had obstructed justice,” the court continued. “Barr related that his conclusion to that effect resulted in part from consultations with Department of Justice officials including the Office of Legal Counsel. As part of that consultation process, Barr had received a memorandum from the head of the Office of Legal Counsel and another Department official, urging Barr to conclude that President Trump had not obstructed justice.”
In an important passage, the court ruling explained how the second volume of the Mueller report deliberately left it open to interpretation whether or not then-president Donald Trump had committed the crime of obstruction of justice.
“While Mueller declined to accuse President Trump of committing a crime in light of the constitutional bar to prosecution, Mueller explained that if he ‘had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice,’ he would have said so,” the court states. “But Mueller was ‘unable to reach that judgment.’ The President’s actions presented ‘difficult issues that prevent[ed] [Mueller] from conclusively determining that no criminal conduct occurred.’ In sum, although the Mueller Report ‘does not conclude that the President committed a crime, it also does not exonerate him’.”
That may come to an end with the court’s order that the OLC memo must be made public. In a passage that is salient to Florida judge Bruce Reinhart’s decision to partly unseal the search warrant affidavit for the FBI’s raid on a former president, the U.S. District Court explained the public’s right to know. (Judge Reinhart had stated that it was “very important” the public have as “much information” as possible on the FBI’s search.)
“But FOIA’s ‘limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.’ The exemptions are ‘narrowly construed.’ And the government bears the burden to show that any records it withholds fit within a statutory exemption,” the decision states on page 5.
CREW was supported in amicus curiae briefs by Jack Jordan, a Kansas City area attorney, as well as Democratic Senator Sheldon Whitehouse of Rhode Island. It should not be assumed the motives for the amicus curiae briefs were ‘friendly’ towards Donald Trump. Sen. Whitehouse in particular announced a number of Democratic senators’ reasons for supporting transparency on the OLC memo in a September 2021 press release.
“Senators Sheldon Whitehouse (D-RI), Patrick Leahy (D-VT), Ron Wyden (D-OR), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Elizabeth Warren (D-MA) and Cory Booker (D-NJ) filed a brief today in a major challenge to the Department of Justice’s assertion of privilege over a memo from the Department’s Office of Legal Counsel to then-Attorney General Barr about whether President Trump’s conduct, as described in the Mueller report, amounted to obstruction of justice,” the senators wrote. “The Freedom of Information Act (FOIA) case, Citizens for Ethics in Washington (CREW) v. Department of Justice, carries major implications for transparency and accountability in government, as well as Congress’s ability to carry out its constitutionally required oversight duties. The senators argue forcefully for the memo’s release, pointing to the clear harm of allowing the executive branch to claim privilege over important information without justification or accountability.”
“The guidelines for asserting executive privilege are procedurally and substantively disputed between the branches, and the opportunity for mischief in interbranch interactions is vast,” the senators add. “Against that backdrop, the importance to Congress of properly narrow interpretations of privileges under FOIA is plain: whether rightly or wrongly, FOIA exemptions, and in particular the deliberative process privilege, spill into executive branch privilege assertions in the oversight context. In particular, a decision here permitting the executive branch to conjure up ‘non-decision decisions’ as a means to withhold records under the deliberative process privilege will undoubtedly re-surface in the congressional oversight context. Like asserting executive privilege without any actual assertion, claiming deliberations are pre-decisional without any actual decision fails at the most basic test: the meaning of words.”
It is thus with great irony that the new Democratic administration has petitioned the court to shroud the FBI’s raid on a former president in complete secrecy by fully sealing the search warrant affidavit. Lawyers for Donald Trump are now threatening legal action over alleged Fourth Amendment violations of the former president’s rights.
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