Thursday, May 20, 2021

No. 421: William Barr Is in Trouble Again

Statement by Former DOJ Employees
In No. 358 (posted March 2, 2020), I reported on a February 16, 2020 statement signed by about 2,700 former employees of the U.S. Department of Justice (DOJ). The statement called for the resignation of then U.S. Attorney General William P. Barr after he interfered in the prosecution of Roger Stone. I agreed with the former DOJ employees that Barr should resign. He did not resign at that time, but he resigned shortly before the end of President Donald J. Trump's departure from office. Now that Barr is a former U.S. Attorney General, a recent development has him in trouble again.

CREW's FOIA Lawsuit against DOJ
On May 28, 2019, Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against DOJ under the federal Freedom-of-Information Act (FOIA). The lawsuit challenges DOJ's failure to disclose to CREW certain records pertaining to DOJ's handling of the massive two-volume report of Special Counsel Robert S. Mueller III submitted to Barr on March 22, 2019. The records in question relate to whether the evidence presented in the second volume of the Mueller report was sufficient to establish that President Trump committed obstruction-of-justice offenses. The seven-page complaint is here.

The CREW lawsuit has two counts. Count 1 is "wrongful withholding of non-exempt records." Count 2 is "failure to grant expedition." (See CREW v. DOJ, U.S. District Court, District of Columbia, Case No. 1:19-cv-1552.)

The CREW lawsuit was assigned to U.S. District Judge Amy Berman Jackson. President Obama nominated her in January 2011. The Senate confirmed her in March 2011 on a 97-0 vote.

Judge Jackson's Opinion
On May 3, 2021, Judge Jackson issued a partially redacted opinion. Here is an excerpt from page 25 of the 41-page opinion (the full opinion with redactions is here):
And of even greater importance to this decision, the [DOJ] affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General [Barr] being disingenuous then, but 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. [DOJ'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 [Barr] to make a prosecution decision or that any such decision was on the table at any time.
The "Conclusion" in Judge Jackson's opinion is on pages 34-35 of the opinion. It reads:
For all of the reasons set forth above, the Court will grant both motions for summary judgment in part and deny them in part. It will grant [DOJ's] motion and enter judgment in favor of [DOJ] on Count One with respect to Document 6. But [DOJ's] motion will be denied, and [CREW's] motion will be granted with respect to Document 15, and DOJ will be ordered to produce the document to CREW. [DOJ's] renewed motion to dismiss Count Two will be granted, and the claim will be dismissed. [DOJ] must file any motion to stay by May 17, 2021, and it must inform the Court of its position on whether this [opinion] may be unsealed at that time.
DOJ's Request for an Extension
On May 14, 2021, DOJ filed an unopposed motion for a one-week extension (to May 24) to respond to Judge Jackson's May 3 opinion. She granted the motion.

General Observations
At this time (May 14), it is anticipated that DOJ will file a reply on May 24 to Judge Jackson's opinion, and that she will comment on that reply. In due course, we may see some or all of the redacted material in the opinion. We also may see more details about Barr's handling of the Mueller report during the period between his receipt of the report and the release of the redacted report to the public. If it is found that Barr misled Congress and/or the public about the contents of the report, I do not know what actions might be taken against him. I plan to report further developments.