This
is a huge breaking story from Politico with this headline:
“Judge orders release of DOJ memo
justifying not prosecuting Trump”
The full story at the link above – highlights I picked out to
fit the blog follow:
U.S. District Court Judge Amy Berman Jackson ordered the
release of a key DOJ that supported former AG Barr’s conclusion that Trump
should not be prosecuted for obstruction of justice over episodes investigated
by special counsel Robert Mueller.
Judge Amy Jackson issued
that ruling in a withering opinion that accused Barr of being
“disingenuous when he described Mueller’s findings.
She also found that the DOJ
(under Barr) was not candid with the court about the purpose and role of the
2019 memo prepared by DO’s OLC (Office of Legal Counsel) that a sitting
president could not be indicted.
DOJ lawyers said in response to a FOIA lawsuit that the memo in question was part of the process of advising Barr on whether Trump should be prosecuted or not.
However, Judge Jackson said the analysis consisted of a post
hoc rationalization of a decision already made, writing: “The review of the
document 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.”
Judge Jackson further linked DOJ effort to keep the memo
secret to Barr’s initial descriptions of Mueller’s conclusions, declaring both
efforts misleading to the court as she continued to write: “Not only was the AG
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 DOJ’s redactions and incomplete
explanations obfuscate the true purpose of the memorandum, and the excised
portions belie the notion that it fell to the AG to make a prosecution decision
or that any such decision was on the table at any time.”
DOJ attorneys at the time argued that the memo is covered by
attorney-client privilege, but Judge Jackson said much of it didn’t seem to
contain legal advice or conclusions, again writing in her opinion: “The Court
is not persuaded that the agency has met its burden to demonstrate that the memorandum
was transmitted for the purpose of providing legal advice, as opposed to the
strategic and policy advice that falls outside the scope of the privilege.”
Judge Jackson further noted that another DC-based federal
judge, Reggie Walton, previously criticized Barr’s early description of the
Mueller report, saying that criticism was “well-founded.”
The DOJ can appeal Jackson’s decision to force release of
the memo, and spokesperson did not immediately respond to a request for comment
on the ruling. Efforts to reach the former officials named in the decision for
comment were not successful.
The FOIA suit that Judge Jackson ruled on was filed in 2019
by Citizens for Responsibility and Ethics in Washington (CREW).
While it is unclear if it influenced her ruling, Jackson had
a close-up view of one of the biggest firestorms of Barr's tenure as attorney
general. That was Barr’s decision to overrule front-line prosecutors and
effectively withdraw their recommendation of a seven-to-nine year sentence for Trump's
longtime adviser Roger Stone on charges of lying to Congress and witness
tampering. Judge Jackson was the judge
in Stone's trial.
She wasn't openly critical of Barr's move, but made clear in court that she believed it deviated from the administration's stated policy on sentencing matters.
She ended up sentencing Stone to three-and-a-half years in prison.
However, Trump commuted Stone’s sentence and then outright pardoned him.
My 2 cents: As I said at
the top is this a pretty big story and one that the raw partisanship and loyalty
of former AG Barr towards Trump and the weak case to not prosecute him based on
the Mueller Russia investigation – which show numerous crimes by Trump.
Seems that chapter is not
fully closed yet. DOJ will appeal this judge’s effort, but I think it will fall
flat and go forward as rightly it should.
Remember the bottom line
in Mueller’s summary about letting Trump off the hook as it were unable to charge
and prosecute him under that DOJ memo that said a “sitting president could not
be indicted.”
DOJ guidelines that Mueller
had to follow were clear to him and that is why he tossed the ball (e.g., the decision
on indicting Trump or not) to Barr, and also to Congress when he said this in
his report summary very clearly (my emphasis added):
“While this report does not conclude that the president committed a
crime, it also does not exonerate him.”
Stay tuned for follow ups
on this issue.
Thanks for stopping by.
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