A Devastating Memo

CREW opposition in Barr memo case is pretty devastating: ”the so-called prosecutorial decision is an invention of DOJ’s … to cover up and paper over the fact that the Attorney General was engaged in an effort to mislead the public about Special Counsel Mueller’s report.” See end of this page for the full memo.

Re DOJ’s claim that Barr memo should be kept secret as “predecisional”: “DOJ lawyers were engaged in what amounts to a thought experiment about a hypothetical case, with no chance of prosecutorial action.” DOJ’s own memo for stay could not come up with an actual decision.

If there doesn’t have to be an actual decision for something to be “predecisional,” and every executive curiosity, factual inquiry, opinion, or thought experiment is protected by FOIA, that guts executive transparency and leaves FOIA a mere husk.

I don’t know why DOJ is fighting this embarrassment and not referring the matter to OPR over DOJ lawyers filing “disingenuous” affidavits not “worthy of credence” giving the court a less accurate depiction of Barr memo than CREW which had not read the memo. This is a bad start.

PS: OLC has such a bad history with candor that for a time DOJ required no “duty of candor” from OLC, likely as a way to stop ongoing investigations into whether OLC had failed at its duty of candor (torture memos in particular). AG Holder restored duty.