What Does It Mean When One Litigant Doesn’t Want Even the Court to See a Complete Document?

It means treachery, dishonesty, even skulduggery. Ask Bill Barr and people who were in his Dept. of Justice — they know.

I can understand wanting to keep a document from the other party to litigation. There are rules about that, and as a general matter the rules tend to keep things balanced. It’s this thing called justice, and it’s supposed to be blind, equal and balanced.

But, when there is a document — oh, let’s call the document GRIM REAPER — and the role of the court is to assess and then rule on the parties’ respective claims regarding whether or not that document should be provided to the other party (or, perhaps to the public), there arises the issue of the Court’s ability to rule on the dispute.

Most reasonable people would agree that the Court needs GRIM REAPER in it’s entirety, in order to decide whether there were legal reasons to withhold GRIM REAPER from the other party (or, perhaps from the public). Yes? You want an MLB or NFL video review team to weigh in, you let them see the whole video of the play, from as many angles as available, right?

Well, but then we must account for the Trump/Barr DOJ, which was— how shall I describe it — unique in recent history? Meretricious? Vague and ambiguous, misleading and deceptive? Illegal? America buggered and muggered? Yeah, I think so.

Unfortunately, for quite awhile the Trump/Barr DOJ had been more or less unaccountable to anyone. But this could now be changing, ever so slowly. Let’s review some positive, hopeful, developments for a change.

Who is the “client” of the DOJ?

The first thing to note is that the DOJ is NOT supposed to be the attorneys for any President — and is supposed to be a totally independent government agency, with “clients” as the people of the United States. Somehow, that concept was lost to Bill Barr’s DOJ. Oddly, Barr’s predecessor, Jeff Sessions, had a little better grasp on that concept. He was fired when Trump thought he didn’t protect him adequately.

A judge speaks out

Just recently, U.S. District Court Judge Amy Berman Jackson handed down an opinion that pretty much skewered Bill Barr and his DOJ — again. The issue at hand was a March 2019 legal memo prepared by the Office of Legal Counsel (OLC), and Her Honor had to decide whether a full, unredacted version should be released to a liberal watchdog group which had sued under the Freedom of Information Act (FOIA).

The memo in question cleared then-President Trump of potential obstruction of justice charges following release of the Mueller Report. The Barr DOJ had redacted large swaths in the memo on various grounds; the two grounds Jackson had to address being attorney-client privilege and deliberative process privilege.

I’ll provide some juicy quotes from the opinion — but the important point I’m trying to make here is how telling it is that the Barr DOJ made extraordinary efforts and arguments to prevent the court from reviewing the full document. When a judge has to make rulings like Judge Jackson was faced with, there is what’s known as an in camera review. For non-lawyers, this simply refers to only the judge seeing something fully and separately — usually in his or her own chambers with no public or press around.

And that’s really the main point here. The mere fact that they tried so hard to prevent the in camera review of the full document speaks volumes. She ultimately was able to do the review, and just recently decided that the full, unredacted memo must be released to the other party. Which means we’ll all get to see it at some point.

But Judge Jackson also spoke volumes in her opinion. Some of the most important findings and conclusions:

• Speaking about Bill Barr’s 4 page letter to Congress a few days after the release of the Mueller Report: “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.”
• “Moreover, the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”
• “Along with the redacted portions of the memorandum, the chronology undermines the assertion that the authors were engaged in providing their legal advice in connection with any sort of pending prosecutorial decision, and this misrepresentation, combined with the lack of candor about what any legal advice provided was for or about, frees the Court from the deference that is ordinarily accorded to agency declarations in FOIA cases.”

Not the first time

Last March another District Court Judge, Reggie B. Walton, had his own troubles with Bill Barr and his DOJ. For one thing, they had to be ordered to provide the judge with a full and unredacted copy of the Mueller Report. But I especially like Judge Walton’s findings regarding Bill Barr’s preliminary comments about the report:

“The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.”

Judge Walton also said “These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility.”

With those types of findings ultimately coming down, it is no wonder Barr and his DOJ didn’t want the judges to have full documents to review.