Department officials argued that the document was protected because it concerned internal deliberations over whether to charge Trump with obstructing special counsel Robert S. Mueller III’s probe of the 2016 Trump campaign’s relationship with Russia. But the judges agreed with Jackson that the record clearly showed that Mueller had already concluded that a sitting president could not be charged with a crime.
Instead, the panel ruled, the March 2019 memorandum concerned what then-attorney general William P. Barr would say to Congress in advance of the Mueller report’s release about the evidence of obstruction.
“A charging decision concededly was off the table and the agency failed to invoke an alternative rationale that might well have justified its invocation of the privilege,” the judges wrote.
The court said that if the government had accurately described to Jackson the motivations behind the memo, the ruling might be different. But “any notion that the memorandum concerned whether to say something to the public went entirely unargued — and even unmentioned” until the appeal.
Barr ultimately told lawmakers that since Mueller had declined to reach a conclusion, he and his deputy made their own determination that the evidence was lacking. When the full report was released weeks later, it said there was “substantial evidence” that Trump obstructed justice.
The memo was written by two senior Justice Department officials who argued that the evidence gathered by Mueller’s team did not rise to the level of a prosecutable case, even if Trump were not president. A redacted version was released last year but left under seal the actual analysis of that question.
Citizens for Responsibility and Ethics in Washington, the nonprofit that sued for the document’s release, celebrated the ruling on Twitter.
“We’re going to get the secret memo Barr used to undercut the Mueller Report and claim it was insufficient to find Trump obstructed justice,” the ethics watchdog wrote. “And we’re going to make it public.”
The DOJ could appeal to the full U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court. A spokeswoman for the DOJ declined to comment.
Read More:Court orders release of memo on Trump obstruction in Mueller probe