WASHINGTON (CN) — The Justice Department must release a full copy of an internal memo that advised the attorney general what to do after special counsel Robert Mueller concluded his 2016 election investigation, the D.C. Circuit ruled on Friday.
Saying that the 2019 memo written by Department of Justice lawyer Steven Engel and department official Edward O’Callaghan belongs in the public record, a three-judge panel of the federal appeals court determined that the Justice Department was wrong to redact it.
Former Attorney General William Barr received the memo in the two days that it took him to report to Congress on Mueller’s findings, which at the time had been shared only with him. The Mueller report had left it for Barr to determine whether then-President Donald Trump’s interference with the investigation amounted to obstruction of justice. He ultimately concluded that the evidence was insufficient and that Trump should not be charged.
The organization Citizens for Responsibility and Ethics in turn sued to access the Justice Department’s memo under the Freedom of Information Act, but the agency argued that the document was privileged because it included internal discussions of whether to charge Trump with a crime.
Ordering sunlight instead, the D.C. Circuit affirmed a district court order for the government to release the memo. Chief Judge Sri Srinivasan wrote for the panel that, at the time of the memo, “a charging decision concededly was off the table,” and that the department failed to prove the memo contributed to Barr’s decisionmaking over whether to prosecute Trump.
"As the Department concedes, it never in fact considered charging President Trump with obstruction of justice or any other crime. Instead, like Special Counsel Mueller, the Department took as a given that the Constitution would bar the prosecution of a sitting President," Srinivasan wrote.
"The memorandum, then, was neither pre- decisional nor deliberative as to such a decision-making process," he added.
Rather than a part of Barr's deliberate process, according to the ruling, the memo amounted more to a “abstract thought experiment.” To wit, Srinivasan wrote, a "purely hypothetical, academic discussion" cannot unilaterally be given privilege from public disclosure.
While the Justice Department introduced new arguments on appeal, claiming that the memo included conversations about how Barr should communicate the Mueller investigation to the public, the court ruled that introducing this claim on appeal was not enough to label the memo privileged.
The panel made clear that the decision in the case was narrow and was based on the government's failure to prove that the memo contributed to deliberations and decisions of government officials.
"We do not call into question any of our precedents permitting agencies to withhold draft documents related to public messaging," Srinivasan wrote.
“Nothing in our decision should be read to suggest that deliberative documents related to actual charging decisions fall outside the deliberative-process privilege,” he added.
The Department of Justice could seek an en banc rehearing or appeal to the Supreme Court.
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