Court Orders Release of 2019 DOJ Memo About Whether Trump Obstructed Justice

A federal appeals court on Friday ordered the Department of Justice (DOJ) to release a 2019 internal memo that then-Attorney General Bill Barr had reviewed before deciding whether to prosecute then-President Donald Trump for obstruction of justice in relation to the Mueller special counsel investigation.

A panel of three judges on the U.S. Court of Appeals for the D.C. Circuit, led by Chief Judge Sri Srinivasan, came to the unanimous decision (pdf) in a case brought by the nonprofit organization Citizens for Responsibility and Ethics in Washington (CREW), a government transparency group.

“Attorney General Barr cited this memo as a reason not to charge President Trump with obstruction of justice,” CREW spokesperson Jordan Libowitz said in a statement. “The American people deserve to know what it says. Now they will.”

On Twitter, the group announced: “We won! 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. And we’re going to make it public.”

The memo was sent to Barr on March 24, 2019, from the head of the Justice Department’s Office of Legal Counsel and another senior department official—then-Assistant Attorney General Stephen Engel, and then-Principal Associate Deputy Attorney General Edward O’Callaghan, respectively.

Judges Reject DOJ’s Argument

Lawyers for the DOJ had argued that the memo represented private deliberations of its lawyers before any formal decision on Mueller’s report was reached, and as such, they were entitled to “deliberative-process privilege” under public records law and the memo was therefore exempted from disclosure.

But U.S. District Judge Amy Berman Jackson of a lower court rejected the argument on May 3, 2021 (pdf), and ordered the DOJ to provide the memo in full to CREW.

She concluded that the memo represented “strategic, as opposed to legal advice” and would fall outside the scope of the exemption. Jackson added that the

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