Senate Democrats urge Garland not to fight court order to release Trump obstruction memo

A group of Senate Democrats are urging Attorney General Merrick Garland not to fight a court order demanding the release of a 2019 Justice Department (DOJ) memo that essentially cleared former President Trump of criminal wrongdoing following the special counsel’s investigation. 

Nine Democrats on the Senate Judiciary Committee sent a letter to Garland on Friday, asking the DOJ not to appeal the order from earlier this month, in which District Court Judge Amy Berman Jackson ordered the department to release the Office of Legal Counsel (OLC) memo and accused former Attorney General William Barr and DOJ lawyers of deception. 

“To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them,” the Democrats wrote in their letter to Garland.

“In that light, and in order to help rebuild the nation’s trust in DOJ’s independence after four years of turmoil, we urge DOJ not to appeal D.C. District Judge Amy Berman Jackson’s May 3 decision to order the release of this OLC memo,” they wrote. 

The group of Democrats was led by Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee. 

Jackson’s decision came in a Freedom of Information Act (FOIA) lawsuit filed in 2019 by the liberal watchdog group Citizens for Responsibility and Ethics in Washington, which sought internal DOJ documents that Barr cited to determine that Trump’s conduct during his early days as president did not amount to obstruction of justice.

The DOJ argued against the documents’ release, saying that they fell under FOIA exceptions for privileged information related to attorney-client communication and government deliberative decision making.

DOJ policy dating back to the Nixon era holds that under the Constitution, presidents cannot be criminally indicted while in office. But the 2019 legal memo was purportedly prepared to assess whether the evidence collected by former special counsel Robert Mueller would merit obstruction of justice charges, regardless of whether prosecutors had the legal authority to bring such a case against a sitting president.

Jackson, who had been provided with a copy of the memo to review, rejected the government’s arguments against disclosure, saying the document was not a typical product of an attorney providing legal advice to a client. She added that it indicated that charges against Trump had never even been considered in the first place among DOJ officials.

Jackson also criticized Barr for his public statements about the process and the Mueller report in the weeks leading up to the release of the special counsel’s investigation, writing, “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.”

It’s still unclear how the Biden administration’s Justice Department will proceed with the case. Jackson on Friday granted the DOJ’s request to extend its deadline for deciding whether to appeal the case from May 17 to May 24.

A spokesman for the Justice Department did not immediately respond to The Hill when asked for comment.