The Biden administration is fighting a judge’s order to release a memo on whether former President Donald Trump obstructed justice during the Russian investigation.
The story: The department’s attorneys on Monday filed a “Notice to Appeal” seeking to keep certain parts of the memo in question hidden.
The memo had previously been released, but in a heavily redacted version, and now, the department removed some of those redactions but does not want to release the memo in its entirety.
The attorneys for the DOJ argued in their filing that the department might have “incorrectly described the nature of the decisional process” in which former Attorney General Bill Barr was engaged.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court,” Justice Department officials wrote.
Worth noting: The DOJ officials wrote that the department never considered bringing charges against Trump because of a longstanding policy that a sitting president cannot be indicted.
“Commencing an actual prosecution of the president was not an option the attorney general was considering,” the department said in its filing.
Rather, Barr was only trying to determine if special counsel Robert Mueller’s report described conduct that could be deemed criminal.
The 2019 March memo was prepared by the DOJ’s Office of Legal Counsel during the Trump administration and lists Steven Engel, who served as assistant attorney general for the Office of Legal Counsel, and Edward O’Callaghan, who served as the top aide to Deputy Attorney General Rod Rosenstein, as co-authors.
The document was meant for Barr to review and determine whether the former president’s conduct warrants a prosecution, based on evidence collected during Mueller’s investigation.
The unredacted portions that were made available to the public this week mostly include explanations on why the memo was created. The document told Barr that Mueller’s report failed “to take a position” on whether to prosecute the former president.
The newly revealed parts of the memo did not include the section where DOJ officials analyzed Trump’s actions via a prosecutorial decision-making process.
The judge’s order: Earlier this month, U.S. District Judge Amy Berman Jackson instructed the DOJ to release the memo as part of a lawsuit from the Washington-based advocacy organization, Citizens for Responsibility and Ethics in Washington. The group sued the DOJ because they refused to respond to a public record request for the memo.
Jackson said that Barr misrepresented the purpose of the document when the department argued that it was legally entitled to withhold it from the court. The judge also said that certain records indicate that Brian Rabbitt, Rosenstein and Barr’s chief of staff, contributed to the memo.
The DOJ argued at the time that it had the right to reject a Freedom of Information Act request for the memo because it featured private advice of lawyers and was written before the DOJ made any decision on the matter.
Jackson pushed back against the assertion that the memo was “predecisional.”
“The redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all,” Jackson wrote. “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.”
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