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Judge rebukes Barr’s Justice Dept. as misleading on decision not to charge Trump

Then-Attorney General William Barr at the White House on Aug. 3, 2020.
Then-Attorney General William Barr at the White House on Aug. 3, 2020.DOUG MILLS/NYT

A federal judge in Washington accused the Justice Department under Attorney General William Barr of misleading her and Congress about advice he had received from top department officials on whether former President Donald Trump should have been charged with obstructing the Russia investigation and ordered that a related memo be released.

Judge Amy Berman Jackson of the U.S. District Court in Washington said in a ruling late Monday that the Justice Department’s obfuscation appeared to be part of a pattern in which top officials like Barr were untruthful to Congress and the public about the investigation.

The department had argued that the memo was exempt from public records laws because it consisted of private advice from lawyers whom Barr had relied on to make the call on prosecuting Trump. But Jackson ruled that it contained strategic advice, and that Barr and his aides already understood what his decision would be.

“The fact that he would not be prosecuted was a given,” Jackson wrote of Trump.


She also singled out Barr for how he had spun the investigation’s findings in a letter summarizing the 448-page report before it was released, which allowed Trump to claim he had been exonerated.

“The attorney general’s characterization of what he’d hardly had time to skim, much less study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Jackson wrote.

Her rebuke shed new light on Barr’s decision not to prosecute Trump. She also wrote that although the department portrayed the advice memo as a legal document protected by attorney-client privilege, it was done in concert with Barr’s publicly released summary, “written by the very same people at the very same time.”

A spokesperson for Barr did not return an email seeking comment, nor did a Justice Department spokesman.


Jackson said that the government had until May 17 to decide whether it planned to appeal her ruling, a decision that will be made by a Justice Department run by Biden appointees.

The ruling came in a lawsuit by a government watchdog group, Citizens for Responsibility and Ethics in Washington, asking that the Justice Department be ordered to turn over a range of documents related to how top law enforcement officials cleared Trump of wrongdoing.

At issue is how Barr handled the end of the Mueller investigation and the release of its findings to the public. In March 2019, the office of the special counsel overseeing the inquiry, Robert Mueller, delivered its report to the Justice Department. In a highly unusual decision, Mueller declined to make a determination about whether Trump had illegally obstructed justice.

That opened the door for Barr to take control of the investigation. Two days after receiving the report, Barr sent a four-page letter to Congress saying that Trump would not be charged with obstructing justice and summarizing the report. Mueller’s team believed that Barr’s characterization of the document was misleading and privately urged him to release more of their findings, but Barr refused.

About a month later, around the time that the report was released to the public, Barr testified to Congress that he had made the decision not the charge Trump “in consultation with the Office of Legal Counsel and other department lawyers,” and that the decision to clear the president of wrongdoing had been left to Barr because Mueller had made no determination about whether Trump broke the law.


Jackson said in the ruling that Barr had been disingenuous in those assertions, adding that it had not been left to him to make the decision about the prosecution.

She also said that in the litigation between the government and Citizens for Responsibility and Ethics in Washington, the Justice Department under Barr had claimed that the memo, written by his top officials, had been about legal advice he had relied on to make the decision and should be shielded from the public.

Under federal law, the Justice Department can claim that such advice should be shielded because it is “deliberative” and the possibility of releasing it could keep advisers from giving their unvarnished counsel because they fear it may become public someday.

But instead, Jackson wrote, Barr and his aides had already decided not to bring charges against Trump. She reprimanded the department for portraying the memo as part of deliberations over whether to prosecute the president. She noted that she had been allowed to read the full memo before making her decision, over the objections of the Justice Department, and that it revealed that “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.”

The department “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.


She oversaw the trial of Trump’s longtime adviser Roger Stone and one of the cases against Trump’s onetime campaign chairman Paul Manafort. Although Trump has publicly attacked Jackson, legal experts say she operated as an unbiased arbiter during the Russia investigation.

In late March, the judge similarly called into question the credibility of the Trump-era government’s description of documents in a Freedom of Information Act lawsuit brought by The New York Times for certain White House budget office emails related to Trump’s freeze on military aid to Ukraine, which led to his first impeachment.

The Justice Department argued that the emails were exempt from disclosure and filed sworn affidavits about their contents by lawyers for the Office of Management and Budget during the Trump administration. But Jackson insisted on reading the emails for herself and wrote that “the court discovered that there were obvious differences between the affiants’ description of the nature and subject matter of the documents, and the documents themselves.”