This is going to be a very granular article and I make zero apologies for the amount of documents. It is important that you have a fuller picture of the various events that occurred before this week’s summary judgment. It is also important to remind you that the DOJ has until May 17, 2021 to either appeal the recent decision or to simply make the long hidden memo available. If anyone says they know what the DOJ will do - then they are not being intellectually honest with you.
April 2019 DOJ-Barr Press Conference
In which then Attorney General William P Barr stood there and lied to the American people. At the heart of the FOIA litigation the following is central to the CREW Complaint. And to be fair I’ve never been a fan of Rosenstein. I have both professional and personal reasons to question his motives. But on this matter Rosenstein isn’t the problem- Barr and the OLC attorneys are.
After carefully reviewing the facts and legal theories outlined in the report, and inconsultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense…
CREW EXPEDITED FOIA REQUEST
Shortly after the aforementioned Barr press conference CREW sent a FOIA request - for the documents OLC provided to Attorney General Barr and Deputy Attorney Rosenstein. Specifically about whether Special Counsel Robert Mueller’s evidence was sufficient to establish that the President obstructed justice. Additionally CREW requested “expedite the receipt of the documents, due to strong public interest in the matter” -
Underlying CREW’s April 18, 2019 FOIA request1 was the growing concern of Barr’s unabridged efforts to “preemptively” spread misinformation of the Mueller Report. Meaning then Attorney General Barr’s specious proclamation that the Mueller Report “exonerated” president Trump and that Trump and the White House had fully cooperated with the investigation. As further expounded on page 2 of the April 18, 2019 FOIA request;
May 2019 Senate Hearing:
Approximately two weeks after then Attorney General Barr held his ill fated press conference. Which obviously preceded a flurry of letters to/from Congress and the Special Counsel’s office - Barr appeared before the Senate Judiciary Committee. I took one for the team and forced myself to rewatched that hours long hearing and then I went ahead and condensed it down to a three minute super cut.
May 2019 - CREW FOIA DOJ OLC
CREW sued DOJ for OLC opinion on obstruction sent to Barr. In their Complaint CREW - there after (June 2020) DOJ turned over a heavily redacted version of what many argue as one of the most important legal documents the American people have never seen: the official grounds for not charging Trump with obstruction of justice. The Trump-Barr-DOJ;
”the evidence developed during the Special Counsel’s [Robert Mueller’s] investigation is not sufficient to establish that the president committed an obstruction-of-justice offense.”
Relevant Court Filings linked below:
Complaint May 28, 2019 found HERE the crux of the complaint are two allegations;
wrongful withholding of non-exempt records because expedited FOIA request have different verbiage.
requests a declaration from the Court, pursuant to 28 U.S.C. §§ 2201 and 2202, that DOJ violated FOIA by refusing to grant expedited processing of its request.
between May 2019 thru February 2020 there were a flurry of filings, which ranged from; Trump DOJ filing a Motion to (partially) Dismiss, numerous motions for extension of time (filed by the Trump-DOJ), Opposition to partial Motion to dismiss and Reply to Opposition. Which now brings us to Document No 10 Memorandum Opinion
Pursuant to Federal Rules of Civil Procedure 12 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's Partial Motion to Dismiss 5 is DENIED. SO ORDERED. Signed by Judge Amy Berman Jackson
The Court finds that administrative exhaustion was not required, so the claim should not be dismissed. And based on a review of the pleadings, the expedited processing request, and DOJ’s denial, it finds that DOJ’s denial was not the product of reasoned decision making. Therefore, defendant’s partial motion to dismiss will be denied.
A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 2“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully”…A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
But this is where things kind of went off the rails for the Trump DOJ - in previous filings it appears that the Trump DOJ conflated language regarding FOIA -specifically expedited request - whoopsie daisy: 5 U.S.C. § 552(a)(6)(E)(iii)3
5 U.S.C. § 552(a)(6)(E)(iii) Which reads in part and I’ve highlighted the important verbiage…that way you can understand the plain reading of the FOIA statute referenced in the January 2020 Memorandum/Opinion
An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.”
Before we dive into the May 3, 2021 Order/Menorandum/Opinion, it might be a decent time to provide you with the various documents cited - see footnote 4 - Letter from Robert S. Mueller, III, Special Counsel, to Hon. William P. Barr, Attorney General of the United States (Mar. 27, 2019) in an extraordinary move decrying Barr’s summary had in fact sowed “public confusion about critical aspects of the results of our investigation…did not fully capture the context, nature, and substance of [the Office of the Special Counsel’s] work and conclusions.”
Strategic v Legal Advice
This isn’t an esoteric argument - it is actually a very binary argument. Offering strategic advice is not the same as legal advice nor did the OLC Memo “assist” Attorney General Barr in declination of pursuing a criminal obstruction of justice action against president Trump. Again this is a very important distinction. I don’t know why this was overlooked by most. In short the court ruled that the memo contained “strategic, as opposed to legal” advice and that the DOJ inappropriately withheld the OLC Memo. Moreover the Court opined that Barr had already reached a predetermined conclusion that then-President Donald Trump would not be charged with obstruction of justice.
For Example - As you’ll note on page 19 the Court was unambiguous in its determination that the OLC Memo, specifically Section I. Read what I’ve highlighted and underlined closely because it matters, a lot:
offers strategic, as opposed to legal advice, about whether the Attorney General should take a particular course of action, and it made recommendations with respect to that determination, a subject that the agency omitted entirely from its description of the document or the justification for its withholding. This is a problem because Section I is what places Section II and the only topic the agency does identify – that is, whether the evidence gathered by the Special Counsel would amount to obstruction of justice –into its proper context…
Furthermore the inclination that “strategic versus legal advice versus deliberative process” (the latter can actually be within FOIA Exemption V) but strategy or strategic is not at all exempt from FOIA- see footnote 11
Of the various sections in the Memorandum I personally found this to be the most biting and absolutely devastating; because the prosecutorial decision was never on the proverbial table as noted by
not only was the Attorney General 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.
The agency’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 to make a prosecution decision or that any such decision was on the table at any time.
See footnote 17 - because again strategic advice isn’t legal advise and the DOJ’s determination to deny CREW’s FOIA request concerning the OLC Memo contravenes the spirit and plain text of exemption V
And then on page 30 - the Court re-emphasized the strategic versus legal content but then opines on the context of Section II. Largely because Barr wasn’t making a prosecutorial “decision” a determination had already been made. When the special counsel’s office fully adopted a previous OLC Memorandum and plain text of Exemption V
Prosecution was never on the table
The notion that Attorney General Barr and Deputy AG Rosenstein “made the decision that Trump’s obstructive behavior didn’t meet the threshold” is complete bullshit. Let me once again explain why- more precisely let me let Special Counsel Mueller explain
Because page 1 of Volume II also states paraphrasing here -the special counsel’s office adopted the previous OLC memos.
(For the record I edited this article because there are space limitations via email)
A Memo is a Memo
So help me Cheesus it is annoying having to explain - if you have a decent understanding and respect for the DOJ & OLC then you’d know how frustrating it is to see some on Twitter “pretending” they know.
First off if you don’t understand CFRs, Rules or agency Memos and how they are promulgate. Then you need to zip it and delete your Twitter account.
Second yes it’s factually correct to state no District Court, Circuit Court of Appeals or Supreme Court have adjudicated the TWO - OLC memos. What you don’t know is why. Setting aside the presumption of standing it’s not entirely clear that the Courts would actually have jurisdiction to overturn an OLC Memo
1973 OLC Memo
I had to reach deep into the National Archives, the law library of Congress, the DOJ’s own archived and then cross referenced with LexisNexis and WestLaw to confidentially say this is the original Memo and I uploaded it to my public drive
2000 OLC Memo
A SITTING PRESIDENT’S AMENABILITY TO INDICTMENT AND CRIMINAL PROSECUTION
Date of Issuance: Monday, October 16, 2000
Headnotes:
The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.op-olc-v024-p0222_0.pdf
The 2000 OLC Memo largely affirms the 1973 Memo but if you understand how agency’s memos work then you’d know that the 2000 memo supersedes the 1973 memo - not to belabor the point - At no time did Barr/Rosenstein ever make a determination/decision, the decision was pre-made by Special Counsel Mueller’s office.
Now turning back to the DDC May 4th ruling - the Court opined:
“[call] into question the accuracy of Attorney General Barr’s March 24 representation to Congress,” specifically that Mueller had left it to the attorney general to determine whether the conduct his report describes is a crime, and that OLC’s description of the document “served to obscure the true purpose of the memorandum,” but again the Court found that a decision had been pre-made
Because the memo in question - hey remember that time a certain PITA Twitter account kept tweeting “how many memos are we talking about” because we knew for sure an additional memo was issued related to Manafort and most of Twitter lost their minds. Yup super fun times - did it occur to the detractors that my persistent questions about “how many memos” was grounded in facts and the facts in the Manafort docket. Again the DOJ did provide CREW with a heavily redacted Memo (June 2020) but setting aside the redactions - I’d like to draw your attention to the date on this memo - do you know what else happened during this 3 day period? Yea Barr’s letters to Congress
And the May 17th date wasn’t pulled out of thin air -but I think you have the benefit of a vast majority of the underlying documents. Additionally what I think is relevant in the recent Order/Memo
I make zero apologies for the amount of documents and facts presented in this article. I trust my readers to understand why I would go through the paces of making sure you have the prerequisite documents. I like to think I’m a bit more thorough than others but the next person to say why didn’t Mueller litigate the OLC Memo (he was bound by the CFR) - I might just throat punch - possibly throat punch myself …
If you don’t have access to WestLaw - and if you don’t know but Iqbal, 556 US at 678 and Twombly, 550 U.S. at 555 are two cases often cited in matters concerning FOIA, general Tort and ironically APA cases - I uploaded to my public drive Iqbal found here and Twombly found here
Me until May 18th 🍿
Thanx for taking one for the Team! you rock!