Federal judge agrees to keep a controversial Mueller memo under wraps for now but skewers DOJ's legal arguments in a new court filing

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Robert Mueller waits to testify before Congress on July 24, 2019.
Former Special Prosecutor Robert Mueller arrives to testify before Congress on July 24, 2019, in Washington, DC. AFP/Saul Loeb via Getty Images
  • District Judge Amy Berman Jackson agreed to pause her order to release a controversial Mueller memo.

  • Jackson initially ordered its release, but the DOJ requested a stay while it appeals her ruling.

  • Jackson granted the stay but skewered the DOJ's legal reasoning in a Monday court filing.

  • See more stories on Insider's business page.

US District Judge Amy Berman Jackson agreed on Monday to keep an internal Department of Justice memo that was central to the Mueller investigation under wraps for now, handing the DOJ a temporary victory as it fights the release of the controversial document.

Nevertheless, Jackson had some harsh words for the government, accusing it of misrepresenting its previous positions on the memo and its relevance to the Mueller investigation. She also disputed the DOJ's claim that the memo is protected under attorney-client privilege and deliberative process privilege but agreed that "without a stay, the battle would be lost before it begins."

Jackson initially ordered the full release of the memo after the Citizens for Responsibility and Ethics in Washington filed a Freedom of Information Act request for it. But the DOJ asked for a stay on the ruling while it appeals the case. On Monday, Jackson granted the stay, but she skewered the DOJ's reasoning in its request to stop the public release of the memo.

The memo was compiled by the DOJ's Office of Legal Counsel in 2019 and relates to the special counsel Robert Mueller's investigation into whether then-President Donald Trump obstructed justice in the Russia investigation. Mueller declined to make a "traditional prosecutorial judgment" on whether to charge the president, and the OLC subsequently put together a legal opinion, at then-Attorney General Bill Barr's request, saying Barr should review the report and make his own judgment on the matter.

Barr later cited the memo in a letter to Congress explaining his decision to clear Trump in the obstruction investigation.

Last month, Jackson ordered that the memo be released in its entirety and suggested that Barr misled the public when characterizing Mueller's findings in the obstruction investigation. After Jackson's ruling, the DOJ said it would appeal the decision and said the government did not intend to mislead the court about the Mueller investigation.

"DOJ would have the Court believe that it did not mean to suggest that the Attorney General was making a final decision about whether to initiate or decline an actual prosecution when it said he received the memo 'prior to his final decision on the issue addressed in the memorandum - whether the facts ... would support initiating or declining the prosecution of the President,'" Jackson said in her Monday decision. "But it had an opportunity to dispel the misimpression it created with its own language once before, and it did not seem to think its position was confusing then."

Jackson then pointed to CREW's allegation that the OLC's memo "served to help the Attorney General falsely spin the findings of Special Counsel Mueller into a vindication of President Trump and to sow doubt about and undermine the findings of the Special Counsel."

"The fact that DOJ made no effort to correct CREW's reading of the declarations, and it argued forcefully that it was indeed up to the Attorney General to initiate or decline prosecution reveals that at the time it submitted the pleadings justifying the FOIA withholdings, it fully intended to convey the impression that was conveyed," Jackson said in her ruling.

She went on to accuse the department of splitting hairs in its motion for a stay and of misrepresenting its own position on why Barr relied on the OLC's memo and whether it was central to his decision not to charge Trump with a crime.

The "DOJ suggested that it was the Barr Memo that prompted the Attorney General to speak, when it appears that the decision to speak prompted the Barr Memo," she wrote. Jackson also addressed the DOJ's claim that the contents of the OLC memo are privileged.

"The Court found - given the unique circumstances surrounding the drafting of the Barr Memo, including the timing and joint nature of its creation, and the unique issues presented by DOJ's pleadings, including the inconsistencies between the declarations and the memo itself - that DOJ failed to meet its burden to establish that the record was protected under the established law governing the privileges it asserted," the judge wrote.

That said, Jackson agreed with the government's contention that "irreparable harm" would be caused by the full release of the memo.

The court "found with respect to this particular document, based on these particular declarations, that the elements of the privilege had not been established. But it agrees that without a stay, the battle would be lost before it begins. Therefore, this factor weighs heavily in favor of a stay."

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