Senate Judiciary Dems Press DOJ To Not Appeal Federal Court Decision Ordering Release of Key Memo Related to Mueller Report

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee; and U.S. Senator Sheldon Whitehouse (D-RI), Chair of the Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights; today led Democratic members of the Senate Judiciary Committee in a letter to Attorney General Merrick Garland expressing serious concerns about the Trump-era Department of Justice’s (DOJ) apparent misrepresentations to a federal court regarding an Office of Legal Counsel (OLC) memorandum that was written to downplay President Trump’s obstruction of Special Counsel Mueller’s investigation.  In their letter, the Senators urged DOJ to not appeal D.C. District Judge Amy Berman Jackson’s May 3 decision to order the release of this OLC memo.

“DOJ’s actions in this case, and in another recent Freedom of Information Act (FOIA) case seeking information about President Trump’s activities, have raised doubts about DOJ’s candor when characterizing potential evidence of President Trump’s misconduct to courts.  To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them,” the Senators wrote.  “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.”

On May 3, Judge Jackson directed DOJ to release a 2019 OLC memorandum purporting to aid then-Attorney General William Barr in determining whether the Mueller Report contained facts that would support charging President Trump with obstruction.  In doing so, Judge Jackson faulted DOJ for being “disingenuous to this Court” by mischaracterizing the nature and contents of the OLC memo in an effort to shield it from public disclosure through FOIA.  Among other misrepresentations, she pointed to DOJ “affidavits[] so inconsistent with the evidence in the record, they are not worthy of credence” and “redactions and incomplete explanations [that] obfuscate the true purpose of the [OLC] memorandum.”

Along with Durbin and Whitehouse, today’s letter was also signed by U.S. Senators Patrick Leahy (D-VT), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Cory Booker (D-NJ), and Alex Padilla (D-CA).

Full text of the today’s letter is available here and below:

May 14, 2021

Dear Attorney General Garland:

We write to express serious concerns about the Trump-era Department of Justice’s (DOJ) apparent misrepresentations to a federal court regarding an Office of Legal Counsel (OLC) memorandum that was written to downplay President Trump’s obstruction of Special Counsel Mueller’s investigation. DOJ’s actions in this case, and in another recent Freedom of Information Act (FOIA) case seeking information about President Trump’s activities, have raised doubts about DOJ’s candor when characterizing potential evidence of President Trump’s misconduct to courts. To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them. 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.

On May 3, Judge Jackson directed DOJ to release a 2019 OLC memorandum purporting to aid then-Attorney General William Barr in determining whether the Mueller Report contained facts that would support charging President Trump with obstruction. In doing so, Judge Jackson faulted DOJ for being “disingenuous to this Court” by mischaracterizing the nature and contents of the OLC memo in an effort to shield it from public disclosure through FOIA.^[1] Among other misrepresentations, she pointed to DOJ “affidavits[] so inconsistent with the evidence in the record, they are not worthy of credence” and “redactions and incomplete explanations [that] obfuscate the true purpose of the [OLC] memorandum.”

This was not the first time that a court faulted DOJ for mischaracterizing facts in an effort to obfuscate Special Counsel Mueller’s true findings. Last year, D.C. District Judge Reggie Walton concluded that Attorney General Barr “distorted the findings” of the Mueller Report when he transmitted a misleading summary of Mueller’s findings to Congress.^[2] Judge Jackson echoed this conclusion following her review of the OLC memo, which she wrote “reveals” that Judge Walton’s suspicions were “well-founded” because “the Attorney General [was] being disingenuous then.”^[3]

Nor was this the first time during the Trump Administration that DOJ appears to have misled a court in FOIA litigation seeking to expose evidence of President Trump’s abuses of power. In a FOIA case seeking Office of Management and Budget (OMB) documents related to Trump’s efforts to pressure Ukraine into investigating then-candidate Joe Biden—efforts that led to Trump’s first impeachment—the District Court for the District of Columbia recently noted “obvious differences between the affiants’ description of the nature and subject matter of the documents, and the documents themselves.”^[4] The court faulted DOJ’s summary judgment motion for relying on “statements of [OMB] declarants who lacked personal knowledge” that “were contradicted by other evidence in the record.”^[5]

We are deeply troubled by these recent FOIA opinions and the pattern of DOJ misrepresentation they portray. Relying on inaccurate statements to support baseless assertions of the deliberative process privilege is problematic in any case; it is all the more indefensible when DOJ is arguing against the disclosure of documents related to serious abuses of power by President Trump. Given the gravity of the misconduct underlying OLC’s March 2019 memo and DOJ’s apparent misrepresentations when attempting to conceal the memo from the public, we urge you not to appeal Judge Jackson’s May 3, 2021 opinion.

Thank you for your time and consideration. We look forward to a prompt reply.

Sincerely,

-30-