A federal appeals court on Wednesday questioned the Biden administration's efforts to conceal large portions of an internal legal memo clearing former President TrumpDonald TrumpKinzinger welcomes baby boy Tennessee lawmaker presents self-defense bill in 'honor' of Kyle Rittenhouse Five things to know about the New York AG's pursuit of Trump MORE of wrongdoing in connection with the investigation led by special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate 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 MORE.
A three-judge panel on the D.C. Circuit Court of Appeals grilled a Department of Justice (DOJ) attorney during a hearing on why the memo should be protected when it appeared then-Attorney General William BarrBill BarrWilliam Barr's memoir set for release in early March The enemy within: Now every day is Jan. 6 Dems worry they'll be boxed out without changes to filibuster, voting rules MORE had never been considering whether to bring charges against Trump.
Judge David Tatel suggested that the evidence the government provided to a district court to support its argument that the memo should not be disclosed does not establish that it is protected under exemptions to the Freedom of Information Act (FOIA).
"If you just sit back and look at the record we have, what it looks like is a memo drafted to justify or explain a decision he easily made," Tatel, a Clinton appointee, told the DOJ lawyer. "That's not pre-decisional. That's not protected. And since it's the government's burden to prove that this is covered by exemption, I'm looking for any evidence to suggest that my impression from what I've said so far is wrong."
The Biden administration is appealing a district court judge's ruling that the 2019 memo crafted by the Justice Department's Office of Legal Counsel (OLC) be released in response to a FOIA lawsuit.
The DOJ previously lifted some redactions of the memo prior to its appeal, but officials maintain that the bulk of the document containing the legal justification for why Trump did not commit obstruction of justice should remain concealed from the public.
In the portions of the memo that are now publicly available, Steven Engel, then the head of the OLC, noted a "constitutional barrier" to prosecuting a sitting president and concluded that a hypothetical case against Trump could not be made based on the evidence collected in the Mueller report.
The DOJ's decision to fight the ruling, backing the Trump administration's legal stance in the case, has angered Democrats in Congress and transparency advocates.
U.S. District Judge Amy Berman Jackson, an Obama appointee, sided in May with the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had sued for the memo nearly two years before.
The lawsuit came in the wake of the release of the Mueller report and Barr's pronouncement that the special counsel's findings did not support the conclusion that Trump had committed obstruction of justice during the course of the investigation.
Barr had said that his determination was made after consulting with the OLC, which is tasked with providing administrations with legal advice and issuing opinions that establish the executive branch's legal stance on a broad range of issues.
In Jackson's May decision, she found that the Justice Department had failed to show that the memo qualified for FOIA exemptions for internal deliberations over government decisionmaking, because charging Trump with a crime was never an option on the table due to department policy that prohibited prosecuting a sitting president.
The judge also said it appeared that Barr had already come to the conclusion that the report cleared Trump of wrongdoing before the memo was published.
Jackson accused Barr of misleading the public about the contents of the Mueller report in the days between receiving the final draft and turning it over to Congress. She also said that DOJ lawyers had misled her in arguing that the memo contained privileged deliberations over whether to recommend charging Trump with a crime.
"DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege," Jackson wrote. "The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions contradict 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."
During oral arguments on Wednesday, the judges pointed to a particular filing that the DOJ submitted in October 2020, in which the agency pushed back on CREW's argument that the attorney general had already concluded that Trump could not be charged and characterized the memo as containing "prosecutorial" advice that could not be disclosed in response to a FOIA request.
D.C. Circuit Judge Sri Srinivasan said that at least one of the DOJ's filings to the district court indicated that the department was claiming privilege over a potential prosecutorial decision that was never under consideration.
"There's a lot of material in the reply brief that would lead, I think, the natural reader to assume that the decision that was on the table is whether to bring a charge," said Srinivasan, an Obama appointee, adding that the department failed to correct itself when CREW pointed out that it did not have the authority to charge Trump.
"And the [DOJ] response wasn't the obvious one, which would have been, 'Oh you're right, of course that's not the decision. It's something else that was going on.' It's to resist the argument that was being made and to say, 'No, that could have been the decision.' And it says that on a couple of occasions so I can understand, I think, why the district court would have been operating under that impression."
DOJ lawyer Sarah Harrington told the D.C. Circuit Court of Appeals on Wednesday that the department should have been more clear and precise in its arguments to the district court, but argued that the memo is clearly protected from disclosure under FOIA because it contains frank advice to high-level government officials.
"If agency advisers are chilled from giving their most candid advice to principals, that will lead to worse outcomes for agencies and for the public at large," Harrington said. "We do not want agency lawyers to write advice memos as if they are press releases, even — and I would say particularly — in high-profile and politically-sensitive matters, which is surely what was happening here."
She apologized for how the DOJ portrayed its lower-court arguments, but maintained that the department had never claimed that the memo should be protected because it was written in the process of deciding whether or not to prosecute Trump.
But Anne Weismann, an attorney representing CREW, argued on Wednesday that in FOIA cases, the burden of proof is on the government to show that a particular document should not be released and the DOJ's claims to the district court misleadingly suggested that the memo was protected as a part of privileged deliberations over a prosecutorial decision.
"This was not an errant slip of the tongue," Weismann said. "This was a repeated argument that the government made in the district court that misled both CREW and the court."
It's unclear when the three-judge panel will issue a ruling.
Democrats in Congress and other Trump critics have criticized the DOJ's efforts to continue to hide the memo from public view. A group of Senate Democrats filed an amicus brief with the D.C. Circuit in September backing CREW and arguing that the DOJ's argument "threatens to hinder effective congressional oversight" of the executive branch.
The OLC memo's legal conclusions have also proved controversial. In 2019, more than a thousand former federal prosecutors signed an open letter that said that the special counsel clearly provided sufficient evidence to conclude that Trump broke the law.
"Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice," the letter reads.
— Updated at 1:36 p.m.