U.S. Attorney General Merrick Garland's Justice Department on Monday said it is seeking to appeal the court's decision to release a memo from 2019 linked to the decision to not prosecute then-President Donald Trump on obstruction charges. Pool Photo by Mandel Ngan/UPI | License Photo
May 25 (UPI) -- The Justice Department late Monday released a partially un-redacted copy of a secretive memo its officials cited in 2019 as reason to not prosecute then-president Donald Trump on obstruction charges as it seeks an appeal to a court's decision for the entire document to be made public.
The court documents were filed late Monday in seeking a stay pending an appeal to a sternly worded order from Judge Amy Berman Jackson issued early this month giving the department two weeks to hand over the nine-page Office of Legal Council memo to a Washington, D.C., watchdog.
The Citizens for Responsibility and Ethics in Washington had filed a Freedom of Information Act request for the memo days after then-Secretary General William Barr in March 2019 cited it as reason his department had decided to not prosecute Trump following the completion of a two-year investigation by former special counsel Robert Mueller into Russia meddling in the 2016 presidential election.
The report said that while there was not enough evidence to prove there was collusion between Russia and the Trump campaign during the 2016 presidential election there were some 10 episodes in which obstruction of justice charges could be considered against the president.
The government had argued against releasing the memo citing attorney-client privileges and that it was protected under the deliberative process privilege -- claims Jackson, who said she read the memo, refuted by stating those who had written the "pre-decisional" memo had already decided to not prosecute Trump.
"The fact that he would not be prosecuted was a given," she wrote.
She also chastised the department for "misleading" the court with "incomplete explanations."
In the filing Monday, the department's lawyers said the stay should be granted pending appeal as they are likely to win their case, stating the court misunderstood Barr's decision process based on their own imprecise language in their court filings.
"While a decision whether to actually commence a prosecution, and a decision as to whether the evidence would be sufficient to establish a basis to prosecute, may be closely related, and while both involve assessments that are 'prosecutorial' in nature, they are not one and the same," the lawyers said, adding "the government acknowledges that its briefs could have been clearer and it deeply regrets the confusion that caused."
The department also argued against the court's opinion that the memo could not be "pre-decisional" as it was drafted as Barr wrote a four-page summary to Congress that said there was not enough evidence to prosecute Trump.
The lawyers argued that nothing on the face of the document memorializes a final decision had already been reached but presented Barr with options to approve or disapprove recommendations.
"It is not unusual, particularly in a matter handled in expedited fashion, for a recommendation memorandum to be prepared contemporaneously with the document that carries out the decision," the court document said. "And such memoranda can retain their pre-decisional character even when they are finalized after the decision in question."
The memo, with the first page and a half un-redacted, was included in the court documents as "Exhibit A."
Written by Assistant Attorney General Steven A. Engel and Principal Associate Deputy Attorney General Edward C. O'Callaghan, the memo states that the evidence in the Mueller report does not support beyond a reasonable doubt that Trump violated obstruction of justice laws and that even if he wasn't a sitting president they wouldn't recommend pursuing prosecution.
The document does not explain how they came to that decision but states that since Mueller would not say whether Trump had violated any criminal law "we think that the department should reach a judgment on this matter."
The court documents were filed more than a week after seven Democratic senators called on the Biden administration's secretary general, Merrick Garland, to make the memo public and to not appeal the court's ruling.
"These misrepresentations preceded your confirmation as attorney general, but the department you now lead bears responsibility for redressing them," the Democrats of the Senate judiciary committee said in a letter on May 14. "In that light, and in order to help rebuild the nation's trust in DOJ's independence after four years of turmoil, we urge DOJ not to appeal D.C. District Judge Amy Berman Jackson's May 3 decision to order the release of this OLC memo."