Updated Aug 19, 2022 - Politics & Policy

Appeals court upholds ruling ordering DOJ to release memo on Mueller report

William Barr on March 7. Photo: Nathan Congleton/NBC/NBCU Photo Bank via Getty Images

The Department of Justice must release a 2019 memorandum supporting then-Attorney General Bill Barr's decision to clear former President Donald Trump of obstruction of justice, a federal appeals court in Washington ruled on Friday.

The big picture: Special Counsel Robert Mueller's 2019 investigation into Russian interference in the 2016 presidential election found that while he could not conclude that Trump committed obstruction of justice, Mueller's final report "does not exonerate" the former president.

  • After Mueller sent his then-confidential report to Barr, the former attorney general sent a letter to Congress explaining that the report did not sufficiently show Trump had obstructed justice.

State of play: A nonpartisan government watchdog organization sued the Justice Department in 2019 for documents related to Barr's decision to clear Trump, including a memorandum from the department's Office of Legal Counsel to Barr.

  • A district court judge ruled in May 2021 that the DOJ must release the memorandum, after finding the department's claim that it was used in the decision-making process to be "disingenuous."
  • Some documents can be exempted from public records requests if they were used internally to make decisions, an exemption known as the deliberative-process privilege.
  • However, the judge in 2021 found that the memorandum, which was finalized after Barr sent the letter to Congress, could not have been part of the decision-making process.

Driving the news: The three-judge panel unanimously upheld the lower court ruling on Friday, rejecting the DOJ's argument that the memo was part of the decision-making process of how to convey the report to Congress and the public.

  • "The court determined that the Department had failed to carry its burden to show the deliberative-process privilege applied," wrote Chief Judge Sri Srinivasan, who was joined by Judges Judith Rogers and David Tatel.
  • "In particular, the court held that the Department had not identified a relevant agency decision as to which the memorandum formed part of the deliberations. The Department's submissions, the court explained, indicated that the memorandum conveyed advice about whether to charge the President with a crime. But the court's in camera review of the memorandum revealed that the Department in fact never considered bringing a charge."

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