In March 2019, on the weekend when Attorney General William Barr and senior advisers in the Justice Department were planning how to release information about special counsel Robert Mueller’s report, a memo was written that served, in effect, as political cover for Barr’s efforts to undermine aspects of the report to Congress, in the media and, ultimately, with the public.
More than two years later, the Biden administration continues to press to keep that cover hidden from the public.
More than two years later, the Biden administration continues to press to keep that cover hidden from the public. The move to keep the memo secret is the path of least resistance from a Justice Department that too often defaults to protecting government actions — even when the right answer is to break with the past as a necessary step to protect our future.
We now know that the memo to Barr, from the head of the Office of Legal Counsel, Steven Engel, and his top deputy, lays out an argument that Barr “should reach a judgment” about whether prosecution of President Donald Trump was “warranted” for charges of obstruction of justice in connection with Mueller’s investigation. In a second section that is still hidden from the public, it analyzes whether such prosecution was warranted.
But now the president is Joe Biden, and he’s seeking to “restore the soul of our nation.” The attorney general is Merrick Garland, and he faces a similar task to restore the stature, independence and credibility of the Justice Department. And a government watchdog group has been fighting to do the same by seeking release of the Office of Legal Counsel memo under the Freedom of Information Act, or FOIA.
Despite all that, the Garland Justice Department announced that it would appeal part of a lower court decision ordering the release of that memo in the case, brought by Citizens for Responsibility and Ethics in Washington, or CREW. The case and the Justice Department’s decision to appeal raise questions about where the Justice Department’s loyalty ultimately lies, as a former lawyer at the Office of Legal Counsel explained.
“This administration needs to make the facts and truth its lodestar, rather than protecting Trump administration actions,” Erica Newland, a former attorney adviser at the Office of Legal Counsel who is now counsel at the nonprofit Protect Democracy, said in an interview Tuesday. “If it doesn’t, that’s troubling.”
In short, the whole effort had the intent of seeking to clear Trump of such an “accusation” of obstruction.
In a pair of filings announcing the decision to appeal Monday night, Justice Department lawyers in effect agreed with the court’s ruling about the first part of the memo and chose the facts and the truth: The Justice Department made it public in its own filing.
In the first section of the memo (now public), Engel and his top deputy, Edward O’Callaghan, wrote that Mueller’s decision not to reach a conclusion about whether Trump’s actions during the Mueller investigation constituted obstruction “might be read to imply such an accusation if the confidential report were released.” Even their underlying premise that Mueller had decided to reach no decision is questionable, as the judge hearing the case, Amy Berman Jackson, noted in her ruling that the memo be released.
Far from reaching “no conclusion,” as the pair wrote, Mueller instead wrote that his office was “unable” to reach a judgment that Trump didn’t obstruct justice because of “difficult issues” that prevented the office from doing so. Regardless, building on that premise, the pair recommended that Barr reach a conclusion.
We still don’t know what Engel and O’Callaghan wrote in the rest of the memo because the Justice Department redacted those 6½ pages — choosing to protect Trump administration actions, rather than the facts and the truth — and it is appealing to keep it that way. We do know, from Barr’s letter to Congress and Trump’s response, that Barr did, in fact, reach his own conclusion about the obstruction question, writing that he and Deputy Attorney General Rod Rosenstein determined that “the report identifies no actions that, in our judgment, constitute obstructive conduct.”
Trump, then allowed to tweet, infamously told the world, based on Barr’s letter, that Mueller had found “No Collusion, No Obstruction, Complete and Total EXONERATION.”
In short, the whole effort had the intent of seeking to clear Trump of such an “accusation” of obstruction. All of which makes the decision of the Garland-era Justice Department to fight to hide this Barr-era Office of Legal Counsel memo all the more unsettling.
As the Justice Department did with the first part of the memo, it could release the full memo without a fight.
Despite the specifics, though, how the Justice Department got here isn’t all that surprising. The instinct of government lawyers is to protect governmental action — with an eye toward the effect of precedent on other cases and the potential consequences for future administrations. The problem of this instinct is that it goes only one way — ratcheting up protections and power for the government, at the cost of the governed.
For two distinct reasons, that instinct is particularly harmful in the Justice Department’s decision to fight the release of the Engel-O’Callaghan memo.
First, efforts by the Garland Justice Department to prevent people from learning information about what were, in effect, political actions taken by the Barr Justice Department under the cloak of the law harm the efforts of the current administration, Congress and other institutions to hold the previous administration accountable. They also harm the public. Second, efforts by the Justice Department to use the Freedom of Information Act’s exemptions to allow the government to keep Part II of this memo hidden from the public further undermine the goals of FOIA — at a time when confidence in government is shaky and transparency is more important than ever. As the Justice Department did with the first part of the memo, it could release the full memo without a fight. Yes, future litigants could cite the district court decision, but the circumstances of the case — which involve serious questions about whether the Justice Department was insulating the president from accusations of having possibly obstructed justice — limit its future application. As emails released as part of CREW’s litigation make clear, Barr’s letter to Congress and the Office of Legal Counsel memo were prepared in tandem, in overlapping emails involving the same people, with the letter’s actually being completed before the memo — all of which led Jackson to rule that the sought-after FOIA exemption didn’t apply. The judge already tried to make it easy for the Justice Department to do the right thing. Noting that it was based on the “unique set of circumstances,” Jackson specifically added that the decision “does not purport to question or weaken the protections provided by [FOIA] Exemption 5 or the deliberative process and attorney-client privileges.” Nonetheless, the Justice Department continues to fight to keep the memo secret. For its part, CREW, the group behind the lawsuit to make the memo public, is not only ready to keep litigating for the memo’s release — it is ready to fight back. “The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years. Last night it chose not to do so,” Noah Bookbinder, CREW’s president, said in a statement Tuesday. “We will be fighting this in court.” Any new administration is going to face challenges when it comes to addressing past administrations’ actions. Often, those challenges can be resolved without needing to choose between the truth and protecting the previous administration. The Biden administration isn’t always going to have that luxury, and it needs to start taking actions that show it’s up to the task.
Chris Geidner
Chris Geidner is a journalist and MSNBC columnist whose Law Dork newsletter covers the Supreme Court, law and politics. His more than two decades in journalism include widely recognized coverage of LGBTQ issues, the criminal legal system and other complex legal and political questions. Geidner also contributes to Grid and Bolts and previously worked as the Supreme Court correspondent and legal editor at BuzzFeed News, as well as for The Appeal and Metro Weekly. 
