The Department of Justice is appealing a judge’s decision ordering the release of a 2019 legal memo prepared for then-Attorney General William BarrBill BarrCNN reporter’s phone and email records secretly obtained by Trump administration: report Democrats urge DOJ to stop searching journalists’ phone records George P. Bush says 2020 election wasn’t stolen MORE in the wake of the Mueller investigation.

In a pair of court filings submitted late Monday, the DOJ under Attorney General Merrick GarlandMerrick GarlandAdvocates see Biden order as new tool in eviction, immigration fights Susan Sarandon and Marianne Williamson call for justice in Steven Donziger case Senate panel advances Biden’s first group of judicial nominees MORE said it would fight against the full release of the memo, but would agree to make parts of it public.

The internal legal memo prepared by the DOJ’s Office of Legal Counsel is said to provide justifications for Barr’s stance that former special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE’s investigation did not support obstruction of justice charges against former President TrumpDonald TrumpMichigan governor apologizes after photo shows her violating state’s health order Cheney dodges on link between Trump election claims and GOP voting laws Biden adviser says reducing red meat isn’t sole climate change solution MORE.

Earlier this month, District Court Judge Amy Berman Jackson ordered that the document be made public and accused Barr and Justice Department lawyers of making misrepresentations about why it should be kept secret.

“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the DOJ said in a court filing asking Jackson to stay her decision while the government appeals.

But, the DOJ argued, that “imprecision in its characterization of the decisional process did not warrant the conclusion” that the full document should be released.

Jackson’s decision stems from a Freedom of Information Act (FOIA) lawsuit filed in 2019 by the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which sought internal DOJ documents supporting Barr’s conclusion that Trump’s conduct during the Mueller investigation did not amount to obstruction of justice. 


The DOJ under Barr fought back against its release, arguing that documents providing legal advice to support government decision making were protected under exemptions to FOIA.


But Jackson, who was appointed to the federal bench by former President Obama, said earlier this month that after reviewing the document, she found little to support the DOJ’s legal arguments and that the memo appeared to have been prepared with the express purpose of providing cover for Trump.


“The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the 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,” she wrote.


The Garland DOJ had been facing scrutiny in the weeks since over how it would decide to proceed with the case it inherited from the previous administration. It is typical for the executive branch to fight against the release of such documents, regardless of the party in power, so the decision of whether to fight Jackson’s decision involved balancing both partisan and institutional interests.


In its court filings Monday night, the Justice Department said it would only appeal Jackson’s order to the extent that it required the release of Section II of the memo which Jackson described as a blend of legal and strategic advice on how to respond to the Mueller report as well as “legal analysis in its assessment of the strengths and weaknesses of the purely hypothetical case” of whether to prosecute the president.


The memo was prepared in March 2019 in tandem with Mueller’s submission of his report to the DOJ, but in the weeks before it was released in a public redacted form.


Earlier this month, a group of Senate Democrats sent a letter to Garland urging him not to appeal Jackson’s decision. 


“To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them,” they 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,” the group added.


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