Citizens for Responsibility and Ethics in Washington (“CREW”) filed a lawsuit under the Freedom of Information Act seeking disclosure of a memorandum and related records that Attorney General Barr had received from the head of the Office of Legal Counsel and another Department of Justice (“DOJ”) official urging AG Barr to conclude that President Trump had not obstructed justice in the 2016 presidential election. The DOJ sought to withhold nearly all of the memorandum based on the deliberative-process privilege, which protects records documenting an agency’s internal deliberations en route to a governmental decision.

The District Court ruled in favor of CREW and held that the DOJ had failed to carry its burden to show the deliberative-process privilege applied. The Department appealed.

‍

Decision

In CREW v. DOJ, No. 21-5113 (D.C. Cir. 2022), the United States Court of Appeals for the District of Columbia affirmed the decision of the District Court.

The report and memorandum

The Court explained that AG Barr asked his advisors for a memorandum answering the question that Special Counsel Robert Mueller had left open: whether President Trump’s actions as described in the Mueller Report would support initiating or declining the prosecution of the President for obstruction of justice. The memorandum concluded that the evidence set forth in the Mueller Report was insufficient to demonstrate that President Trump had committed obstruction of justice. The DOJ invoked the deliberative-process privilege under Exemption 5 of the Freedom of Information Act to justify its withholding of that memorandum nearly in full.

‍

Requirements to invoke the deliberative-process privilege

The Court explained that to properly invoke the privilege, an agency must show that the records at issue are both pre-decisional and deliberative. A record is pre-decisional if it was prepared in order to assist an agency decision-maker in arriving at their decision, rather than to support a decision already made. A record is deliberative if it reflects the give-and-take of the consultative process.

‍

The memorandum was neither pre-decisional nor deliberative

Per the United States Court of Appeals for the District of Columbia, as a general matter, records reflecting prosecutors’ views on whether the evidence in a case supports initiating a prosecution will qualify for protection under the deliberative process privilege because an analysis of the sufficiency of the evidence would typically relate to the ultimate decision of whether to bring charges. Ordinarily, the government would have little difficulty establishing that a prosecutor’s views about the sufficiency of the evidence form part of a privileged decisional process about whether to initiate or decline a prosecution. However, the DOJ never considered charging President Trump with obstruction of justice or any other crime because the DOJ took as a given that the Constitution would bar the prosecution of a sitting President. In light of the DOJ’s well-known and longstanding view that a sitting President cannot be indicted or prosecuted, the March 2019 memorandum analyzing the evidence against President Trump could not have pertained to any decision about prosecuting him. Therefore, the memorandum was neither pre-decisional nor deliberative as to such a decision-making process.