Wednesday, May 5, 2021

The Lion, the Witch Hunt and the Wardrobe

Following the issuance of the Mueller report on Russian interference in the 2016 election, Attorney General William Barr reported to Congress that there was insufficient evidence to charge then-president Trump with obstruction of justice. Trump then declared himself exonerated and that the entire process was a “witch hunt.”

The difficulty from the point of view of Congress and the public at large is that we were asked to simply take their word for it. To the minds of some, the conclusion of exoneration simply did not meet the smell test. Robert Mueller himself stated:

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions.

What Barr had done with his report to Congress was brilliant. There were actually two distinct questions to address: whether the president had acted in a way that obstructed justice and, if so, whether the president, by virtue of being president, could be charged. Rather than answering both questions, Barr combined the two to arrive at his conclusion that the evidence was insufficient to charge the president. In other words, if the president, as president, could not be charged, it made no difference what he actually did. Unfortunately, based on Barr’s report and the highly redacted Mueller report, there was no way of determining whether obstruction of justice had actually occurred.

Enter the Freedom of Information Act (FOIA). By federal statute, government agencies may be compelled to release records upon request, subject to documents that fall within nine specific exemptions. In many cases, this requested information helps us understand the conclusions that agencies make.

Citizens for Responsibility and Ethics in Washington (CREW), who describe themselves as “a nonprofit 501(c)(3) and nonpartisan U.S. government ethics and accountability watchdog organization” asked the Justice Department for release of the underlying materials that supported Barr’s conclusions. Much of the information was released, enough to establish a timeline of communications that predated and postdated Barr’s report to Congress.

One critical document that was withheld was the analysis prepared by the Office of Legal Counsel that Barr said supported his conclusions. CREW sued the Justice Department in the Federal District Court to obtain that document.

The Justice Department defended the withholding of this document under one of the exceptions to FOIA, specifically that it was “pre-dispositional” -- “the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including . . . the executive deliberative process privilege.” Translating that into English, you do not need to release information that was put together to help you reach your decision., especially if that information falls within the attorney-client privilege.

Judge Amy Berman Jackson, under her authority as judge, reviewed all of the documents in private (called an in camera review). This review allowed her develop a timeline of events. What she found was perturbing to her. Even though the Justice Department (and through it Attorney General Barr) said that the Office of Legal Counsel memorandum formed the basis of Barr’s conclusion, it was, in fact, not delivered to the Justice Department until AFTER Barr’s report to Congress. In other words, Barr lied.

After extensive legal analysis, Judge Jackson determined that the document was not part of the decision-making process and did not fall within the exception to the production rules. The Department of Justice was ordered to release the document (subject to further objections and proceedings).

The court’s decision is, of course, more complex than the summary here and I have intentionally omitted portions that do not relate to his specific issue.

Reading between the lines of the opinion, one thing becomes clear. Even though Barr’s report to Congress combined the issues of obstruction of justice and whether a president could be charged, the memorandum apparently unpacks the two. If that is the case, we may finally find out how much evidence there was of obstruction of justice.

One side note: some right-leaning pundits have suggested that CREW may not be as non-partisan as they claim. This is a red herring that obfuscates the true issue. Regardless of the motives underlying the request for information under FOIA, we as the public have a right to information. What we do with it is another matter.