What a weird legal battle we are witnessing—one that is making any link of Donald Trump to credible obstruction of justice charges more confusing than clear.
At issue this week is full disclosure of the memo that former Attorney General William P. Barr used in his opening days in office to declare that Trump had not obstructed justice as part of the Russia coordination by his election campaign personnel. Barr drew his conclusion of what Special Counsel Robert S. Mueller III had never put into specific language—that despite detailed attempts to twist justice to his own protection there was insufficient grounds for prosecution.
Instead, the current Justice Department, which inherited this legal messiness, tantalizingly released just the first two pages of the internal memo, but is sitting on the rest. There is a legal appeal to be heard, basically on whether internal legal thinking is subject to full public disclosure.
The Biden Justice Department is now defending the actions of the Trump Justice Department over its reasoning rather than training its attention on the central still-pending questions.
This strangeness came about after an angry a federal judge excoriated Barr and the Justice Department for explanations of how and why it decided not to pursue a criminal case against Trump. U.S. District Judge Amy Berman Jackson scathingly ruled that she had read the memo, and it showed that Barr was disingenuous when he cited the document as key to his conclusion that Trump had not broken the law. Jackson ordered the public release of the still-secret portions of her opinion and the memo.
Of course, a lot of us, including Mueller himself, believe that Barr turned the Mueller Report inside out to support the idea that the 2016 Trump campaign never conspired with Russia to interfere in the election and that Trump never tried to obstruct that investigation.
But what an oddity: The Biden Justice Department is now defending the actions of the Trump Justice Department over its reasoning rather than training its attention on the central still-pending questions.
Just to review, Mueller took almost two years and 448 pages for a long-awaited report that was meant to prove or dispel allegations, suggestions, leads and fragmented but repeated incidents of coordination between the Trump campaign and various Russian intelligence operatives, all in support or denial of a generalized belief that beyond Russian interference in U.S. elections, there is a special relationship between Trump forces and Russia.
Mueller came close, documenting tons of contacts, warranted or not, and a whole separate chapter on Trump's various attempts to block any investigation – leading to consideration of actual obstruction of justice charges for a number of actions. Included were the firing of James B. Comey Jr. to trying to dismiss Mueller. But the special counsel refused to step up, leaving it to the Justice Department, Barr and a Justice Office of Legal Counsel to make the conclusions—the same group that advised Barr and Trump that seeking a Ukraine quid pro quo for political gain was perfectly OK.
Barr did, too quickly even to have fully absorbed the Mueller material, badly misstating the findings of the report, which never "exonerated" Trump, but said an effective prosecution was not possible.
None of that stopped Trump and friends from shrieking a clean bill of health, leading inevitably to impeachable behaviors, ethics violations, a variety of good and poor policy choices and a presidency and post-presidency based on adoration of Trump rather than on what the country needs.
"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," Jackson wrote.
Move to Now
So, now, with new Attorney General Merrick Garland, a new office of legal counsel and the hang-around lawsuit from CREW, Citizens Responsible for Ethics in Washington, the nonprofit ethics group, to open up that justifying memo – and the judge's supportive order to do so. But Garland's Justice Department is sticking by legal principle and procedure, that decision-supporting memos are not the decision and are not subject to public disclosure.
The open question is why.
Why are we seeming to still protect Trump by protecting the strange doings that enveloped Justice Department decision-making?
Neal Katyal, the former solicitor general, argues in a New York Times essay that it is to protect Justice Department protocols, ignoring the wider Trump issues here, an argument with which he disagrees.
But the best answer would seem to be that if Justice were to do so, it would set up a chance to revisit the decision not to prosecute. And that would force Garland, Justice and the White House to decide that they indeed could, and should prosecute Trump today on obstruction of justice charges that Barr had thrown aside.
And that would cause political chaos, of course, or a repeat on a larger stage of the Jan. 6 insurrection attack on the U.S. Capitol.
In other words, if partisan politics got us into this mess, it sure looks like partisan politics of a different stripe is trying to keep the lid on a potentially boiling kettle.
It stinks, old administration or new. Ultimately, this debate may prove moot in practical terms if, on its unrelated track, a newly named New York special grand jury moves ahead on criminal charges investigating alleged fraud in Trump's business dealings rather than obstruction over probing Russian cooperation.