Judge Amy Berman Jackson’s scathing analysis was revealed Tuesday morning in a newly unsealed portion of a court opinion she wrote about an internal memo to former Attorney General Bill Barr at the close of the Mueller investigation, and her rejection of the department’s efforts to keep almost all of the memo secret.
Most of the memo to Barr is still redacted, and the Justice Department continues to seek confidentiality for it.
This is the second time a federal judge has, months later, condemned Barr for spinning Mueller’s documentation of Trump’s attempts to obstruct the Russia investigation, allowing the President to claim he was exonerated before the facts were fully known.
Jackson, in her decision May 3, also took issue with how the Department after the fact had tried to argue in court that some of its discussion with Barr was legal deliberations. She decided the memo should be released in full.
On Monday night, the department released a section of the 2019 memo to Barr on Mueller’s obstruction findings that discussed what could be made public.
Two sentences in the newly revealed department memo said, “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.”
Jackson, in her close read of what happened, latched onto these sentences written to Barr, calling them “strategy” and PR for the presidency.
In court before her, the “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,” Jackson wrote earlier this month.
Last year, when a different federal judge blasted the Barr-led department for its handling of the report’s release, then-DOJ spokeswoman Kerri Kupec said the department “stands by their work, as well as the Attorney General’s statements and efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report.”
Top DOJ appointees Steven Engel and Ed O’Callaghan wrote the memo to Barr as they also prepared to summarize Mueller’s findings to Congress in March 2019 — before releasing the full Mueller report.
At the time, Mueller had outlined several episodes where Trump tried to hamper the investigation into Russia and his campaign, but left a prosecution decision to Barr, noting that department policy said a sitting President couldn’t be charged. When announcing the findings to Congress, Barr went further and said he had reasoned that there wasn’t a case against the President.
But Jackson made clear that that reasoning shouldn’t have happened, because charging the President with a crime was already off the table internally.
Jackson points out that even in the advice memo to Barr, the department acknowledged it couldn’t prosecute a sitting President. Barr’s top political advisers still gave him advice on what to do, the judge noted.
“The analysis set forth in the memo was expressly understood to be entirely hypothetical,” Jackson wrote. “One of the apparent purposes of the memorandum was to justify the Attorney General’s plan to opine about the strength of the evidence, even though he and his team were well aware that under DOJ policy, there was no prosecution decision to be made.”
Noah Bookbinder, the head of Citizens for Responsibility and Ethics in Washington, which has sued for the memo’s release, said in a statement Tuesday, “The limited portion of the memo that the Justice Department did disclose provides further evidence that Attorney General Barr’s efforts were not aimed at making any real legal determination, but were instead aimed at publicly spinning the damning findings of the Mueller Report into a vindication of Donald Trump.”
The group indicated it is still seeking the rest of the memo to be released, and Jackson is still considering whether the remaining redactions must be lifted even as the Justice Department appeals her opinion.
