Notes on Judge Amy Berman Jackson's ruling on the DoJ memo leading to Barr's letter to congress

[Midnightwalk]

I don't know why I got into reading and summarizing these decisions, but I find them interesting and writing it out helps me organize my thoughts. Hope you enjoy. Not a lawyer. I had some issues cutting and pasting and had to do some piece-wise. Apologies if messed something up. I'll correct anything pointed out.

The Memorandum Opinion lays out the timeline of Mueller delivering his report, Barr delivering his 4 page summary over the weekend, Mueller writing his letter saying "

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions.

It's was a good reminder of when the report came out and then the obvious cover up letter to congress. Basically nothing to see here, president is innocent. Those were a bad few days in a sea of bad days.

Here's that in full:

MEMORANDUM OPINION
On Friday, March 22, 2019, Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States William P. Barr

But the Attorney General did not share it with anyone else.

Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then-President Trump in connection with the investigation – into less than four pages.

The letter asserted that the Special Counsel “did not draw a conclusion – one way or the other – as to whether
the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s
own opinion that “the evidence developed during the Special Counsel’s investigation is not
sufficient to establish that the President committed an obstruction-of-justice offense.”

The President then declared himself to have been fully exonerated

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.

Even the customarily taciturn Special Counsel was moved to pen an extraordinary public rebuke on March 27:

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations"

Then a long description of what the case is about and releveant laws. Here's a mish mash of my take and quotes

The case involves summary judgement involving FOIA requests on two documents, referred to Document 6 and Document 15. There's a second issue about expediting, and that is ruled moot.

Then a discussion about what goes into making a summary judgement and some background on FOIA. Interesting. There's one paragraph that stood out to me emphasizing accuracy is critical:

Above all, though, it is essential that agency affidavits be accurate. “[S]ummary judgment may be granted on the basis of agency affidavits” in FOIA cases, when those affidavits “contain reasonable specificity of detail rather than merely conclusory statements,” and when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). As the D.C. Circuit has emphasized, this Court should be able to depend on the accuracy of submissions that are intended “to permit adequate adversary testing of the agency’s claimed right to an exemption.”

FOIA rule 5 is the key to the decision:

FOIA Exemption 5
Defendant withheld the two records in dispute in this case pursuant to FOIA Exemption 5, which bars disclosure of “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

A document may be properly withheld under Exemption 5 if it satisfies “two conditions: its source must be a [g]overnment agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.”

There are two privileges:

Deliberative process privilege
The deliberative process privilege “allows the government to withhold documents and other materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

.....

To accomplish that goal, “[t]he deliberative process privilege protects agency documents that are both predecisional and deliberative.”

Predicisional is important later on

The attorney-client privilege

....

“The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997), citing In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”

....

But the mere fact that the communication involves a member of the bar does not end the
inquiry. See Mead Data Cent., 566 F.2d at 253 (“The privilege does not allow the withholding of documents simply because they are the product of an attorney-client relationship . . . .”). For instance, the privilege does not extend to a “government attorney’s ‘advice on political, strategic, or policy issues, valuable as it may [be].’”

That last paragraph is also important later.

Now why the motion to release document 15 was granted

Defendant has not met its burden to justify withholding under the deliberative process privilege.

The memorandum is largely deliberative. But the Court cannot find the record to be “predecisional,” because the materials in the record, including the memorandum itself, contradict the FOIA declarants’ assertions that the decision-making process they have identified was in fact underway. Moreover, the record supplies reason to question whether the communication preceded any decision that was made.

The OLC had two people say why the document was predeicisional. See page 18 if interested. The judge quotes CREW (the plaintiff on document 15). They made the decisions before the memo.

CREW had difficulty swallowing this explanation.

DOJ’s . . . arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice . . . . [H]owever, the Special Counsel already had made final prosecutorial judgments and the time for the Attorney General to challenge those judgments had passed. Whatever the contents of the March 24, 2019 OLC memo, it was not part of a deliberation about whether or not to prosecute the President.

The judge can't reveal what's in the memo. But she talks about the two sections of the memo and points out that section 1 was completely strategic and political. Not deliberative or predecisional.

What the Court can say without revealing the content of the redacted material is that there were two sections to this memorandum. Section I offers strategic, as opposed to legal advice, about whether the Attorney General should take a particular course of action, and it made recommendations with respect to that determination, a subject that the agency omitted entirely from its description of the document or the justification for its withholding. This is a problem because Section I is what places Section II and the only topic the agency does identify – that is, whether the evidence gathered by the Special Counsel would amount to obstruction of justice – into its proper context.

Here's a key piece. They produced the letter to congress without having reviewed the report and before any deliberative predecision discussions. By the time this memo about the letter was made Barr had already decided not to prosecute Trump for obstruction:

Moreover, 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. In other words, 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.

The judge throws some shade at Barr for ummm inaccuracy.

All of this contradicts the declarant’s ipse dixit that since the Special Counsel did not resolve the question of whether the evidence would support a prosecution, “[a]s such, any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General.” Brinkmann Decl. ¶ 11. It also calls into question the accuracy of Attorney General Barr’s March 24 representation to Congress: “The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” March 24 Letter at 3

She then kind throws some shade and an elbow at the DoJ:

And the in camera review of the document, which DOJ strongly resisted, see Def.’s Opp. to Pl.’s Cross Mot. [Dkt. # 19] (“Def.’s Opp.”) at 20–22 (“In Camera Review is Unwarranted and Unnecessary”), raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment:
[T]he March 2019 Memorandum (Document no. 15), which was released in part to Plaintiff is a pre-decisional, deliberative memorandum to the Attorney General from OLC AAG Engel and PADAG Edward O’Callaghan . . . .

She notes that "hey another court found you trying to pull this crap and I'll include it in the decision"

As noted above, summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc., 726 F.3d at 215, quoting Consumer Fed’n, 455 F.3d at 287.
But here, we have both. Another court in this district has expressed “grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report.”

Quoting from the other court:

Although Attorney General Barr can be commended for his effort to expeditiously release a summary of Special Counsel Mueller’s principal conclusions in the public interest, the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report – a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report

She's mauling them at this point:

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that 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. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie thenotion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time

Then she goes into who got together to produce the memo. I love that she made a who emailed who chart (chart not in decision, but it does say it's available somewhere). Who knew who you meet with can have an effect. They should have hired a lawyer.

The Court has created a chart listing all of the emails in chronological order. It is attached to this opinion as Attachment 1 and incorporated in the opinion as part of the Court’s factual findings. The emails are exchanged among Stephen A. Engel, an Assistant Attorney General in the Office of Legal Counsel; Brian C. Rabbitt, the Chief of Staff in the Office of the Attorney General; Rod Rosenstein, the Deputy Attorney General; and Edward C. O’Callaghan, the Principal Associate Deputy Attorney General, and at least one is copied to another person in OLC: Henry C. Whitaker (OLC).

The memo the DOJ attorneys were working on was the advice the OLC was going to give them. Remember deliberative and predecisional. The fix was already in and OLC was in on it and not independent. (my opinion)

The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first. At 2:16 pm on Sunday, March 24, the Attorney General’s Chief of Staff advises the others: “We need to go final at 2:25 pm,” and Rod Rosenstein, the Deputy Attorney General, summons everyone to a meeting at 2:17 pm. Attachment 1 at 4. At 2:18 pm, Steven Engel in the OLC replies to this email chain related to the draft letter, and he attaches the latest version of the memo to the Attorney General, saying: “here’s the latest memo, btw, although we presumably don’t need to finalize that as soon.” Id.; see also id. at 6 (finalizing the letter just before 5:00 pm on March 24 and the memorandum just before 9:00 am on March 25). In sum, the set of emails contained in plaintiff’s Exhibit A undermines the uninformed assertions in the declarations uponwhich the defense relies

.

There's discussion of why attorney client privildge doesn't apply because these jokers were acting politically, but this is already too long so read the doc if you want that.