US plans appeal to keep Barr's Mueller legal advice secret

Findings were used by the former attorney general to clear former president Trump of obstruction of justice

The appeal will challenge a ruling by US District Judge Amy Berman Jackson on a lawsuit that argues William Barr misled the public by claiming Robert Mueller’s report cleared Donald Trump. AFP
The appeal will challenge a ruling by US District Judge Amy Berman Jackson on a lawsuit that argues William Barr misled the public by claiming Robert Mueller’s report cleared Donald Trump. AFP

The US Justice Department said it would appeal a court order mandating it make public internal legal advice used by former attorney general William Barr in 2019 to clear then-president Donald Trump of obstruction of justice during the probe into Russia’s election meddling.

The agency should not be forced to release the findings of the Justice Department’s Office of Legal Counsel, which advised Mr Barr on whether evidence developed by Special Counsel Robert Mueller was sufficient to establish that Mr Trump had obstructed justice, the department said in a court filing late Monday.

The appeal will challenge a May 3 ruling by US District Judge Amy Berman Jackson in Washington on a lawsuit filed by Citizens for Responsibility and Ethics in Washington, a watchdog group that argues Mr Barr misled the public by claiming Mr Mueller’s report cleared Mr Trump.

In her ruling, Ms Jackson said the Justice Department under Mr Trump had been less than forthcoming about the contents of the memo and said the public should see it for themselves.

Noah Bookbinder, the group's president, blasted the Justice Department’s decision to appeal the ruling. He said the Biden administration was missing a chance to expose abuses of power at the agency under Mr Trump.

“The Department of Justice had an opportunity to come clean, turn over the memo and close the book on the politicisation and dishonesty of the past four years,” Mr Bookbinder said in the statement on Tuesday.

“Last night, it chose not to do so.”

The Justice Department’s plan to appeal also clashes with calls by Democrats for the administration of President Joe Biden to reveal Mr Barr’s legal justification for clearing Mr Trump. The former attorney general did so in a surprise public summary of Mr Mueller’s highly anticipated report weeks before it was published.

Ms Jackson had ordered the department to make the legal counsel’s memo public but gave the Biden administration a chance to request a stay of the order and to provide its view on whether her decision itself should remain redacted.

The judge said in a public version of her May 3 order that Mr Trump’s Justice Department had provided contradictory explanations for why the memo should remain secret. She noted that Mr Mueller had issued an “extraordinary public rebuke” of Mr Barr’s summary of his report.

“The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicisation and dishonesty of the past four years. Last night, it chose not to do so.”

Noah Bookbinder

In its filing on Monday, the Justice Department apologised for its handling of the filings and affidavits in the case.

“The court’s decision was substantially premised on the view that the government’s briefs and declarations incorrectly described the nature of the decisional process in which the attorney general was engaged,” the department said.

“In retrospect, the government acknowledges that its briefs could have been clearer and it deeply regrets the confusion that caused.”

Even so, the government argued, part of the memo should remain secret because it is covered by so-called deliberative process privilege.

Ms Jackson had said in her ruling that her private review of the memo made it clear that Mr Barr had made up his mind to clear Mr Trump before he read the memo and that the document therefore wasn’t part of a legitimate deliberation.

The former attorney general said he had decided to clear Mr Trump after consulting the Office of Legal Counsel and “carefully reviewing the facts and legal theories outlined in the report".

Making the legal advice public would help reveal “the legality and reasonableness” of Mr Barr’s conclusion, Citizens for Responsibility and Ethics in Washington said in its complaint.

Published: May 26, 2021 01:38 AM

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