The Biden Justice Department appears to be making a serious mistake by trying to keep secret a Trump-era document about former Attorney General William P. Barr’s decision to clear his boss, former President Donald Trump, of obstructing justice.
The American people have a right to see the memo. 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.
This month, Judge Amy Berman Jackson of the U.S. District Court in Washington ordered it released. Were this an ordinary criminal case, her order would represent a remarkable intrusion into prosecutorial secrecy, and I would have appealed when I was acting solicitor general.
But the document is anything but ordinary. It concerns attempts at the highest levels of government to shield the attorney general’s boss from criminal liability. It is, in essence, the people’s memo, and with its appeal, the Justice Department is attempting to hide it from public scrutiny.
Faced with a Freedom of Information Act request from Citizens for Responsibility and Ethics in Washington to release the document, Judge Jackson engaged in a thorough review of the material. Her conclusion was startling: Mr. Barr was “disingenuous.” And the affidavits the Justice Department used to justify withholding the materials “are so inconsistent with evidence in the record, they are not worthy of credence.”
As an institutionalist, I believe the long-term interests of the Justice Department generally do not swing from one administration to the next. My tenure in the Obama administration running the Solicitor General’s office, which decides for the federal government whether it will appeal judicial orders, was devoted to that principle.
So it’s understandable how the Justice Department reached its decision in this case. We generally don’t want prosecutors to have their internal analysis released to the public, for fear of undermining ongoing law enforcement investigations and for chilling frank advice and discussion. That is, I suspect, why the Justice Department authorized the appeal. It doesn’t want the Freedom of Information Act to be used as a weapon to undermine prosecutors.
But in this case, absent additional information, that rationale seems wrong. The appearance, if not the reality, of what Mr. Barr did to the Justice Department cannot be ignored: He used his mighty prosecution powers to protect the Trump administration and its friends, including the president.
That is what Judge Jackson’s opinion, in the end, was all about. After reading a full set of documents related to the memo, she said: “So why did the attorney general’s advisers, at his request, create a memorandum that evaluated the prosecutorial merits of the facts amassed by the special counsel? Lifting the curtain reveals the answer to that too: getting a jump on public relations.”
These shenanigans came after Mr. Barr was revealed to have written a memo for Mr. Trump while a private citizen, a long document that concluded that, yes, you guessed it, the president was not guilty of obstruction of justice.
The Justice Department is the one cabinet agency that has a value in its name — “justice.” Its iconography — a blindfolded Lady Justice — underscores the idea that everyone has to play by the same rules. Mr. Barr appears to have desecrated that cardinal principle. The public has a right to know what he and his Justice Department lawyers did and why they did it.
We already had one by-the-book official, the special counsel, Robert Mueller, try to apply regular principles to a deeply abnormal presidency, and we witnessed the result: a distorted impeachment and the nullification of potential criminal charges.
The problem for the new Justice Department is: What does it do now? Should it depart from ordinary rules because the last administration did so? If it doesn’t appeal Judge Jackson’s decision, isn’t the department allowing a precedent to be set that private litigants can ask for and get all sorts of prosecutorial materials?
No. Good surgeons don’t always operate, and good appeals lawyers don’t always appeal. Here, Justice Department lawyers could have safeguarded the department’s interests by saying they disagreed with the decision, but because it was a trial court decision, it was not precedential for other cases and not appropriate to appeal.
And the department then could have voluntarily released the memo without conceding that it was required by the Freedom of Information Act. When the Justice Department doesn’t appeal a decision, that doesn’t mean it agrees with it. Lawyers there decide not to appeal all the time for many reasons. In short, there were better solutions here that would have walked the tightrope between the public’s need to know and the Justice Department’s general need to protect prosecutorial interests.
In the end, there must be a zone of confidential government decision-making and privacy. Good government depends on it. But that zone is a two-way street: It also depends on government officials who behave as if they deserve to be there. The Justice Department’s decision to appeal Judge Jackson’s order treated this case like any other garden-variety case.
Neal K. Katyal is a professor at Georgetown Law School, was an acting solicitor general in the Obama administration and wrote, with Sam Koppelman, “Impeach: The Case Against Donald Trump.”
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