Release full memo

Biden's DOJ appeals order to release full memo on why Trump wasn't charged with obstruction

By Marshall Cohen

The Justice Department is partially appealing an order to publicly release a pivotal 2019 memo about whether then-President Donald Trump obstructed the Russia investigation.

The appeal means some sections of the nine-page memo will likely remain secret for the time being, while litigation continues. The Justice Department released some portions of the memo on Monday, though the freshly unredacted sections did not provide many new details on the decision by then-Attorney General William Barr that Trump should not be charged with any crimes.

A highly redacted version of the memo was already available to the public. But the full version, if it is ever released, could shed new light on how Trump appointees at the Justice Department justified why he shouldn't be charged, even though special counsel Robert Mueller's investigation found strong evidence that Trump repeatedly obstructed the probe.

The decision to appeal is a key moment for the Biden-era Justice Department under Attorney General Merrick Garland, and is sure to disappoint many Trump opponents who had hoped the latest release would reveal damaging information about the former President and his attorney general. In the court filings Monday, arguing that most of the memo should remain out of public view, Garland's department defended some of the actions taken by the department under Barr.

The unredacted portions that were revealed late Monday night -- which span two pages -- mostly contained bureaucratic explanations of why the memo was written, and did not include the section where Trump's conduct was analyzed through a prosecutorial decision-making process.

Top Trump appointees told Barr in the memo that the Mueller report's "failure to take a position" on whether to charge Trump "might be read to imply such an accusation if the confidential report were released to the public" and that "therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate," according to the newly released portions.

Earlier this month, Judge Amy Berman Jackson ordered the memo's release and blasted the Trump-era Justice Department for misleading her to keep the memo secret. Justice officials had argued that Barr relied on the memo as he decided whether Trump should be charged with obstruction -- but Jackson concluded that Barr had already made up his mind.

That blistering ruling from the federal judge was yet another rebuke for Barr. His rollout of Mueller's findings has been sharply criticized by several federal judges, Mueller himself, legal experts, and many Democratic officials, who say Barr misled the public by selectively quoting and cherry-picking Mueller's report to protect Trump and blunt any fallout.

The Justice Department filed a notification Monday night saying it would appeal Jackson's decision. In a separate filing, the department said previous assertions by top prosecutors and officials were not clear enough, but maintained that it had not intentionally deceived the court.

"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 in the court filing Monday night.

The appeal by the Justice Department doesn't necessarily mean that the Biden administration fully supports what the Trump administration did regarding the memo. This specific case is about the Mueller probe, but the ruling could influence other public records cases. Justice Department leaders under presidents of both parties have fought for decades to keep internal documents secret.

The legal battle over the nine-page memo from March 2019 is part of an ongoing Freedom of Information Act lawsuit brought by Citizens for Responsibility and Ethics in Washington, a government watchdog group that was extremely critical of the Trump administration.