On Monday evening, Judge Amy Berman Jackson of the United States District Court in Washington, D.C., issued a ruling concerning former Attorney General William Barr’s summary of the Mueller report. That ruling makes it clear that Barr’s summary is nothing of the sort, that the information provided to Congress both then and later was intended to mislead, and that Barr was engaged in a pattern of deception in his testimony to both the Congress and the public.
The ruling was in response to a freedom of information request from Citizens for Responsibility and Ethics in Washington (“CREW”). What CREW was after in particular was a memo that was prepared on the same day that Barr drafted his four page “summary” of Robert Mueller’s report on the Russia investigation. That memo supposedly provides Barr’s reasoning for why Donald Trump should not have been prosecuted for the crimes alleged by the Mueller investigation, and in particular why Trump should not have to answer for multiple instances of lying to investigators and engaging in multiple counts of obstruction.
Though the existence of the memo has long been known, Barr argued that it did not have to be produced because it was “private advice” from lawyers consulted by Barr in making the determination about whether Trump should be prosecuted. Barr followed this up when he delivered his summary to Congress by saying that both he and assistant attorney general Rod Rosenstein had decided not to prosecute Trump “in consultation with the Office of Legal Counsel and other department lawyers.”
To say that Judge Jackson was scornful of Barr’s claims is a drastic understatement. Instead, she saw evidence that Barr made his decision first, then backfilled to cover up a foregone conclusion. “The fact that [Trump] would not be prosecuted was a given,” Judge Jackson wrote in her decision.
She has ordered the DOJ to produce the memo.
The sternness of this ruling is hard to exaggerate, and really, it’s hard to say this more succinctly or more forcefully than Judge Jackson did in her ruling.
To say that Judge Jackson was unimpressed with Barr’s ability to summarize is a gross understatement. “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,” wrote Judge Jackson. She also noted that Trump jumped on Barr’s statement to claim that he was “fully exonerated.”
Jackson noted that Barr’s summary was so out of line that Mueller was forced to author a response saying that Barr’s pages “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”
Jackson found the idea that the summary could be released, but the memo was protected by some form of privilege ridiculous, saying that it was, “written by the very same people at the very same time.”
Step-by-step in her ruling, Judge Jackson dismantled every possible reason for Barr to withhold the memo, making it clear at each turn that the legal reasoning he offered was extremely weak tea. In particular, she returned to the idea that the memo somehow represented deliberations that brought Barr to the decision that Trump shouldn’t be prosecuted.
Having read both the unredacted Mueller report, and the memo—over DOJ objections—Judge Jackson made it clear that neither document contained what Barr had claimed. She called the claims made by Barr “so inconsistent with evidence in the record, they are not worthy of credence” and bluntly stated that both Barr and the DOJ were “disingenuous” about the contents of the memo and the purposes for which it was written.
One line of particular note throws up a huge red flag. The whole reason that Barr was supposedly consulting with attorneys in the first place was the contention that Mueller had finished his report without making any recommendation on whether or not Trump should be prosecuted. However, as Judge Jackson wrote after reading the full, unredacted report and memo: “excised portions belie the notion that it fell to the attorney general to make a prosecution decision or that any such decision was on the table at any time.”
In her ruling, Judge Jackson allowed one of the source documents behind the memo (“Document 6,” which is described an “untitled, undated draft legal analysis,” prepared by Steven A. Engel, an Assistant Attorney General within the Office of Legal Counsel) to remain hidden. However, she ruled that “Document 15”—the actual memo circulated by Barr—must be produced. That’s because, far from representing deliberation over whether or not Trump should be charged, the memo “contradicts assertions that the decision-making process they have identified was in fact underway.” Which makes it sound very much like the memo was really about how Barr could sell the idea of not prosecuting Trump, rather than the legal reasoning behind a decision that was made before the report ever arrived.
Barr and the DOJ have until May 17 to appeal. Whether the current DOJ will seek to defend the actions taken under Barr is an open question.
Judge Jackson previously presided over the trial and conviction of Trump campaign adviser Roger Stone and a portion of the charges that were brought against Trump campaign manager Paul Manafort.
The ruling was in response to a freedom of information request from Citizens for Responsibility and Ethics in Washington (“CREW”). What CREW was after in particular was a memo that was prepared on the same day that Barr drafted his four page “summary” of Robert Mueller’s report on the Russia investigation. That memo supposedly provides Barr’s reasoning for why Donald Trump should not have been prosecuted for the crimes alleged by the Mueller investigation, and in particular why Trump should not have to answer for multiple instances of lying to investigators and engaging in multiple counts of obstruction.
Though the existence of the memo has long been known, Barr argued that it did not have to be produced because it was “private advice” from lawyers consulted by Barr in making the determination about whether Trump should be prosecuted. Barr followed this up when he delivered his summary to Congress by saying that both he and assistant attorney general Rod Rosenstein had decided not to prosecute Trump “in consultation with the Office of Legal Counsel and other department lawyers.”
To say that Judge Jackson was scornful of Barr’s claims is a drastic understatement. Instead, she saw evidence that Barr made his decision first, then backfilled to cover up a foregone conclusion. “The fact that [Trump] would not be prosecuted was a given,” Judge Jackson wrote in her decision.
She has ordered the DOJ to produce the memo.
The sternness of this ruling is hard to exaggerate, and really, it’s hard to say this more succinctly or more forcefully than Judge Jackson did in her ruling.
To say that Judge Jackson was unimpressed with Barr’s ability to summarize is a gross understatement. “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,” wrote Judge Jackson. She also noted that Trump jumped on Barr’s statement to claim that he was “fully exonerated.”
Jackson noted that Barr’s summary was so out of line that Mueller was forced to author a response saying that Barr’s pages “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”
Jackson found the idea that the summary could be released, but the memo was protected by some form of privilege ridiculous, saying that it was, “written by the very same people at the very same time.”
Step-by-step in her ruling, Judge Jackson dismantled every possible reason for Barr to withhold the memo, making it clear at each turn that the legal reasoning he offered was extremely weak tea. In particular, she returned to the idea that the memo somehow represented deliberations that brought Barr to the decision that Trump shouldn’t be prosecuted.
Having read both the unredacted Mueller report, and the memo—over DOJ objections—Judge Jackson made it clear that neither document contained what Barr had claimed. She called the claims made by Barr “so inconsistent with evidence in the record, they are not worthy of credence” and bluntly stated that both Barr and the DOJ were “disingenuous” about the contents of the memo and the purposes for which it was written.
One line of particular note throws up a huge red flag. The whole reason that Barr was supposedly consulting with attorneys in the first place was the contention that Mueller had finished his report without making any recommendation on whether or not Trump should be prosecuted. However, as Judge Jackson wrote after reading the full, unredacted report and memo: “excised portions belie the notion that it fell to the attorney general to make a prosecution decision or that any such decision was on the table at any time.”
In her ruling, Judge Jackson allowed one of the source documents behind the memo (“Document 6,” which is described an “untitled, undated draft legal analysis,” prepared by Steven A. Engel, an Assistant Attorney General within the Office of Legal Counsel) to remain hidden. However, she ruled that “Document 15”—the actual memo circulated by Barr—must be produced. That’s because, far from representing deliberation over whether or not Trump should be charged, the memo “contradicts assertions that the decision-making process they have identified was in fact underway.” Which makes it sound very much like the memo was really about how Barr could sell the idea of not prosecuting Trump, rather than the legal reasoning behind a decision that was made before the report ever arrived.
Barr and the DOJ have until May 17 to appeal. Whether the current DOJ will seek to defend the actions taken under Barr is an open question.
Judge Jackson previously presided over the trial and conviction of Trump campaign adviser Roger Stone and a portion of the charges that were brought against Trump campaign manager Paul Manafort.