Jackson wrote in a blistering opinion after viewing the memo and other evidence that the department’s claims “are so inconsistent with evidence in the record, they are not worthy of credence.”
In a 35-page opinion ordering the memo’s release in a public records lawsuit, Jackson called suspicions that Barr and department lawyers had been “disingenuous” in withholding the document “well-founded,” saying the department had sought to “obfuscate” its true purpose of justifying a decision that had already been made.
“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,” Jackson wrote.
Barr did not immediately return a message seeking comment, and a Justice Department spokesman had no immediate comment.
Jackson’s opinion echoed another federal judge’s criticism last year of Barr over a “lack of candor” and truthfulness in his handling of the release of Mueller’s report.
Both judges blasted Barr’s four-page letter to Congress in March 2019 that said the special counsel did not draw a conclusion as to whether Trump obstructed the investigation and that Barr’s own opinion was that the evidence was insufficient to bring such a charge.
In reality, Mueller’s report laid out evidence of obstruction but said the special counsel could not fairly make a charging decision, given department policy that a sitting president cannot be indicted.
Writing in March 2020, U.S. District Judge Reggie B. Walton called Barr’s public statements “misleading” and said he had “grave concerns about the objectivity of the process” that led up to the public release of the Mueller report.
“The Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report,” he wrote, adding, “These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility.”
Walton is a 2001 appointee of President George W. Bush and Jackson a 2011 appointee of President Barack Obama.
Jackson’s ruling handed a victory to the watchdog group Citizens for Responsibility and Ethics in Washington, which filed a Freedom of Information Act request and lawsuit following Barr’s April 2019 testimony to Congress. Walton’s decision came in a public records lawsuit brought by the Electronic Privacy Information Center, or EPIC, a watchdog group, and BuzzFeed News, seeking to unredact information in Mueller’s report.
Judges typically give the government the benefit of the doubt when officials handling the release of information under the Freedom of Information Act evaluate whether some records should be withheld based on the law’s exemptions, such as for internal deliberations. But that is not the case when judges find evidence of bad faith.
In her opinion, Jackson noted that Barr had asserted to Congress that April that he and his deputy had reached the decision that Trump could not be charged “in consultation” with the Office of Legal Counsel and other department lawyers, testifying after Mueller accused Barr of twisting the findings and undermining public confidence in the investigation. Barr’s assertions, Jackson said, prompted Trump to claim he had been exonerated and came shortly after Barr received the 448-page report but before it was publicly released in March 2019.
“The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Jackson wrote.
In fact, Jackson said, Barr’s statement to Congress that Trump hailed and the Office of Legal Counsel’s memo that Barr said his decision was based on were “being written by the very same people at the very same time.”
The memo’s authors and recipients worked “hand in hand to craft the advice” that it supposedly delivered, but it was the letter to Congress that was the priority and that was getting completed first, Jackson said.
“Not only was the Attorney General being 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,” Jackson concluded.
Jackson gave the Justice Department until May 17 to decide whether it would seek to appeal her order or oppose the unsealing of redacted passages.
Jackson was deeply familiar with the special counsel’s work, overseeing its prosecution in Washington of former 2016 Trump campaign chairman Paul Manafort and the trial of the then-president’s political confidant Roger Stone.
Stone was convicted of lying and threatening a witness in Congress’s Russia investigation, and Manafort pleaded guilty to tax and fraud charges related to his secret lobbying for politicians in Ukraine. Jackson sentenced both, before each was pardoned by Trump last year.