by Erwin Chemerinsky
The Biden administration is making a serious mistake in placing the self-interest of the Justice Department ahead of the people’s right to know if former Attorney General William Barr acted to cover up Donald Trump’s possible engagement in obstruction of justice.
A federal judge in Washington, D.C., in early May ordered the release of a crucial Justice Department memo that will shed light on Barr’s conduct and whether he acted inappropriately. Rather than comply with the judge’s command and disclose the document, the Biden Justice Department is appealing the order in an effort to keep the memo secret.
In March 2019, special counsel Robert S. Mueller III delivered his report into Russian interference in the 2016 presidential election to then-Attorney General Barr. While keeping the report secret, Barr sent a letter to congressional leaders purporting to “summarize the principal conclusions.” Barr said that Mueller “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction,” and that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Trump then declared that he was fully exonerated.
Barr said that he had reached his conclusion “in consultation with the Office of Legal Counsel and other Department lawyers.” A Freedom of Information Act request was filed by a watchdog group to obtain the OLC memo that purportedly was the basis for Barr’s judgment that the Mueller report exonerated Trump of obstruction of justice.
A reading of the Mueller report indicates that Barr’s statements were a gross mischaracterization of the evidence it presented. There was substantial evidence that Trump had engaged in obstruction of justice and Mueller said that he offered no conclusion only because Justice Department rules prevented indicting a sitting president.
Federal Judge Amy Berman Jackson reviewed the OLC memo and concluded that there was no legal basis for withholding it from release. Indeed, she was sharply critical of the Justice Department’s arguments for secrecy. She said that the “affidavits” submitted in favor of withholding the document “are so inconsistent with evidence in the record, they are not worthy of credence.” She said that her review of the documents led her to conclude “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.” She said that the agency’s “redactions and incomplete explanations obfuscate the true purpose of the memorandum.”
In plain English, she slammed the Justice Department for misleading the court in trying to keep the document secret.
This issue is central to a government operating under the rule of law: Did the attorney general act to deceive Congress and the American people to protect Trump from being seen as having engaged in obstruction of justice? The OLC memo is key to understanding what happened.
As Judge Jackson explained: “So why did the attorney general’s advisers, at his request, create a memorandum that evaluated the prosecutorial merits of the facts amassed by the special counsel? Lifting the curtain reveals the answer to that too: getting a jump on public relations.”
Unfortunately, Attorney General Merrick Garland is now appealing Jackson’s ruling. At first blush it seems strange that the Biden Justice Department is acting to protect the reputations of Barr and the Trump Justice Department.
But anyone familiar with government agencies, and how they act to protect themselves, should not be surprised. These institutions have their own self-preservation agendas that carry over from administration to administration.
The current Justice Department, in acting to safeguard the reputation of its former leaders and its lawyers, is trying to defend its ability to keep its own documents secret. But this action is completely contrary to the public interest: The Justice Department should not be shielding itself from scrutiny.
If the Barr or lawyers in the Office of Legal Counsel acted inappropriately, that needs to be exposed.
I worry that many people — given all the traumas of the past two years — will react to this case as old news. Whether Trump obstructed justice and how Barr handled this all go to things that seem in the past.
This, though, is wrong. Whether an attorney general and the Justice Department tried to deceive Congress and the American people is critically important and we can’t let it slide without a full accounting. There is no reason for the Biden Justice Department to keep that chapter of the Trump administration secret. The appellate court should reject its appeal of Jackson’s order.
Erwin Chemerinsky is dean of the UC Berkeley School of Law.
