The Bigger Picture Behind the Dustup Over the Barr Memo

It’s early summer in Washington, D.C., which can mean only one thing: It’s time to debate the Mueller report—yet again.

Two years after the Justice Department first published the report, and one year after the release of a version of the report with many fewer redactions, the executive branch is once again embroiled in controversy about the report—specifically, over how much information about Special Counsel Robert Mueller’s investigation should be available to the public. This time, the dispute centers on an internal Justice Department memo—prepared in advance of the report’s public release—that could shed light on Attorney General William Barr’s decision to announce, misleadingly, that President Trump had not obstructed justice.

But now, the administration fighting to keep material related to the Mueller report private is no longer Trump’s. It’s President Biden’s.

The litigation over the memo is one of several cases left over from the Trump administration that put the Justice Department in a somewhat awkward position. During his confirmation hearing, Attorney General Merrick Garland spoke of his desire to “reaffirm ... the norms that will ensure that the Department adheres to the rule of law,” and President Biden has voiced a similar commitment to using the years after Trump to shore up the department’s independence from the whims of the president. Each specific case concerns granular doctrinal questions, but on a more general level, the slate of litigation speaks to the tension between this rhetoric of breaking with the Trump years and the Justice Department’s other institutional interests. With the Biden administration continuing to pick up the pieces left scattered by the previous administration, this dynamic is not going away anytime soon—and the current fight over the memo to Barr makes that clear.

To understand the dynamics at play in the fight over the memo, it’s necessary to first take a deep dive into the litigation. The memo at the root of the controversy dates to March 24, 2019, two days after Barr received the Mueller report from the special counsel’s office. It would be another three weeks until Barr unveiled the report to the public—but he quickly sent a letter to Congress characterizing the document’s conclusions and writing that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish” that Trump had obstructed justice. After Barr published the full report, however, it became clear that the attorney general’s letter had dramatically underplayed the seriousness of Trump’s actions. In part, Barr had taken advantage of Mueller’s decision to leave open the question of whether Trump’s actions constituted obstruction of justice, which the attorney general chose to interpret as an invitation to reach his own decision on whether Trump had committed a crime—a choice that helped Trump spin the Mueller report as “TOTAL EXONERATION.”

Barr requested the memo in question from legal advisers after receiving the report, nominally to provide and memorialize legal advice for how he should proceed with the special counsel’s work. The memo has, thus far, never been released to the public in full. If that changed, it would likely shed light on Barr’s decision to help out Trump politically—and so it’s a key part of the story of how Trump escaped any consequences for the abuses documented in the report.

The memo has gained attention recently thanks to a harsh May 3 opinion by Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia. Under Trump, the Justice Department had litigated to keep the memo away from the public eye in response to a Freedom of Information Act (FOIA) request. Jackson handed down a ruling requiring the government to release the memo, writing that the Justice Department’s legal arguments were “disingenuous.” Barr’s goal in requesting the memo, she argued, was not to elicit legal advice but to “get … a jump on public relations” around the release of the Mueller report.

Jackson’s language was unusually tough; the courts don’t make light of accusations that the government has misrepresented evidence. But for many observers, the particularly jarring aspect of the ruling and its aftermath was that the Justice Department, now under the leadership of Garland, announced that it would be appealing the decision rather than releasing the full memo to the public. Garland’s Justice Department, in other words, wants to continue a legal fight to keep out of the public eye the full text of a memo from Barr’s tenure as attorney general.

Writing in the New York Times, former Acting Solicitor General Neal Katyal criticized the department’s decision as “a serious mistake.” “The American people have a right to see the memo,” he argued. “Then they can decide whether Mr. Barr used his power as the nation’s chief law enforcement officer as a shield to protect the president.”

For all the rhetorical fireworks, the substantive dispute between the government and Jackson is relatively narrow. It more or less boils down to an argument over whether or not the Justice Department was adequately precise in court about the specific arguments the memo addressed, and whether the department misled the court on the subject. The memo—according to Jackson’s opinion and a portion of the document that the Justice Department agreed to release following her ruling—considered whether the evidence in the Mueller report would hypothetically support a prosecution of Trump for obstruction of justice, and weighed whether Barr should provide his opinion on the matter at all. Jackson, however, accuses the Justice Department of leading her to believe that the memo considered whether the department should actually commence a prosecution of Trump, regardless of the Office of Legal Counsel’s (OLC’s) position that a sitting president may not be prosecuted. This speaks directly to the matter of whether or not the memo should be released: The judge takes the view that the actual contents of the memo, and the process by which it was written, strip away the protections offered by executive privilege and attorney-client privilege and require the document’s release.

There is a genuine legal question here over whether the questions raised in the memo constitute the sort of decision-making covered by the deliberative process privilege. In light of Jackson’s harsh opinion, though, this issue has received less attention than the matter of whether or not the department under Barr intentionally misrepresented the facts. Here, I’ll confess I’m somewhat skeptical. Jackson excoriates the department for not making clear that the question of prosecuting Trump was hypothetical, but it’s difficult to see how it could have been anything other than hypothetical given OLC’s view on the subject. That said, as Scott Anderson argued on the Lawfare Podcast, it is also true that some of the government’s earlier filings could have been more precise on the subject. In a filing responding to Jackson’s ruling, the Justice Department acknowledged, perhaps somewhat sheepishly, that “several” of its statements were “susceptible to an interpretation that the Attorney General was considering whether a prosecution or indictment of the sitting President should actually be commenced,” and that it had not clarified that the memo also advised Barr on the “antecedent question” of whether he should publicly assess the strength of the evidence at all.

But the interest the memo has drawn in the press is about something more than the granular details of FOIA litigation. More interesting than parsing the disagreement between Jackson and the Justice Department, in my view, is parsing what that disagreement says about the situation in which the Justice Department—and the new administration as a whole—now finds itself. Biden, who built his presidential campaign around a rejection of Trump’s abuses, promised to restore independence to the Justice Department. And Garland has repeatedly invoked the legacy of Edward Levi, the attorney general who reformed the Justice Department following Watergate.

The competing interests are made clear by the new administration taking the position that evidence of Trump-era wrongdoing should not be made public. Doing so makes sense from the perspective of institutional executive branch interests: On one level, the Justice Department is presumably not happy about Jackson impugning the affidavits filed by career employees concerning the contents of the memo to Barr; on another level, the department has an interest in keeping the scope of the deliberative process privilege wide in order to forestall future FOIA requests about internal advice. And there is an argument that a return to the department’s values of independence and professionalism might be best served by ostentatiously staying above the political fray and focusing only on the formal legal question of executive privilege. But the many journalists and commentators who criticized the department’s decision to appeal are not wrong in identifying a tension there.

And it’s not just this case. The same tension has surfaced in recent filings in other cases left over from the Trump administration. In response to litigation against Trump, Barr, and others over the June 2020 police assault on protesters in Lafayette Park, the Biden Justice Department recently argued that federal officials can’t be sued over efforts to “clear[] and secure[] an area before the former President’s appearance in the midst of unrest.” This might make sense as a formalistic legal argument, but it rankles as a description of what actually happened: Police used tear gas against peaceful protesters so that the president could secure a photo-op.

Of course, the Biden administration isn’t the first administration to find itself in court taking positions seemingly at odds with the new president’s rhetoric of breaking with the past administration. The Justice Department in the early days of the Obama administration, for example, struggled with the problem of how to handle a wide range of cases left over from George W. Bush’s presidency that implicated executive power. In a number of prominent instances—including litigation against the right to file habeas petitions by detainees at Bagram Airfield in Afghanistan and invocation of the state secrets privilege—the department chose, after reviewing the record, to continue Bush-era legal arguments rather than take the different approach that Obama had led supporters to expect.

The situation for the Biden administration, though, is additionally complicated by the particular relationship between Trump and the judiciary—a dynamic that necessarily shapes the Justice Department’s approach. Early in the Trump presidency, Benjamin Wittes and I wrote about the seeming willingness of judges to rule in unusual and aggressive ways against the administration, often in a manner that put the courts out far ahead of where a straight application of law would lead them. We concluded that judges were, perhaps unconsciously, responding to their own distrust in Trump’s oath of office by denying him—in one form or another—the presumption of good faith usually afforded to the executive by the judiciary. As Trump’s presidency went on, the courts continued to struggle with the question of to what extent they should grant their traditional deference to an administration that regularly papered over the president’s malevolence and incompetence with the thinnest of legal pretexts.

Seen in this light, Jackson’s recent opinion excoriating the Justice Department is another instance of a judge struggling to grapple with the unique puzzle posed by the Trump administration. The judge’s apparent anger might seem out of proportion when confined to the specifics of what sorts of deliberative processes meet the criteria for FOIA exemption b(6). But it makes more sense as a response to overall frustration with Barr and his original March 2019 decision to share a blatantly misleading description of the Mueller report with the public ahead of the report’s release—and then to do so even more flamboyantly in a press conference releasing the redacted report. Notably, for example, Jackson cites a ruling from her D.C. district court colleague Judge Reggie Walton, questioning Barr’s good faith and stating that the court was “troubled by [Barr’s] hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public.”

Jackson’s skepticism is directed more at Barr than at Trump, but the mood is familiar.

As with many of the early opinions issued by district courts blocking Trump’s travel ban in 2017, the undertone of her ruling seems to be: Can you believe what these guys are trying to get away with? Writing in the New York Times, Katyal gives voice to the same mood when he argues that the Justice Department would be making a mistake in applying “regular principles to a deeply abnormal presidency.” Trump, in other words, is just different.

Wittes’s and my argument wasn’t that judges were acting lawlessly in pushing back against Trump but, rather, that their judging was guided by an implicit principle they may not even have been aware of. The same, I think, is true for Jackson’s ruling in the case about the memo. In this sense, her opinion raises an additional question about the new jurisprudence of skepticism toward an oathless president developed under Trump: What happens when a different administration comes in?

As other cases left over from the Trump administration percolate through the courts, it will become clearer how judges and the Biden Justice Department will deal with these tough questions. It’s too simplistic, of course, to say that the department faces a binary choice between sticking with the Trump administration’s approach versus rejecting the previous administration in order to turn over a new leaf. If the goal is to restore an independent Justice Department committed to impartiality and the rule of law, one approach would be to proceed as the department would have in the wake of a less aberrant presidency—that is, stick to the usual presumption that the executive’s interests will not change between administrations. There’s not an obvious right or wrong answer here, though there may be better and worse ones.

Above all, the tangle that the Justice Department has walked into is a reminder of just how difficult it will be for the Biden administration to make a break with Trump, despite the new president’s stated desire to do so. Biden’s predecessor reshaped the executive branch in ways that are still coming into focus. His legacy will be a long one.