Bayonet the Wounded and Pick the Pockets of the Dead

William Barr on Capitol Hill on April 10. Mandel Ngan/AFP/Getty Images
William Barr on Capitol Hill on April 10. Mandel Ngan/AFP/Getty Images

WC was told one time, and regrettably the source is forgotten, that “Lawyers arrive after the battle is over and bayonet the wounded. Then the accountants arrive and pick the pockets of the dead.”

Welp, the bayoneting and pickpocketing is still going on over the Mueller Report and the reaction of the Trump Administration to that report. Famously, then-Attorney General William Barr delayed the release of Special Counsel Robert Mueller’s work product, lied about it’s content, released later an over-redacted version and said he would not prosecute a sitting President in any event.

The U.S. Department of Justice has strongly fought releasing an internal DOJ memorandum that was generated by two senior Trump DOJ officials. Barr and his many successors at DOJ resisted because they didn’t want more dirt coming out about Trump. The Biden DOJ has resisted because it has claimed the memorandum reflects the deliberative privilege, and it would be dangerously bad precedent if those deliberations lost their privilege. The litigation over whether the full internal memorandum should be made public has continued over all these years, and may now have wrapped up. And may have done so that casts the DOJ in a way that damages the agency’s already battered reputation.

Now, if WC may extend his metaphor, the District of Columbia Court of Appeals has bayoneted the DOJ’s claims and, absent an unlikely grant of a petition for certiorari by the U.S. Supreme Court, we’ll finally get to learn why no criminal action for obstruction of justice was taken against Donald Trump. The D.C. Circuit, like U.S. District Judge Amy German Jackson, found that the deliberative privilege did not apply, that the DOJ had engaged in a misleading argument, and that the memorandum was subject to the Freedom of Information Act’s requirement that it be given to the plaintiffs.

To show that the deliberative privilege applied, and that the memorandum did not have to be produced, DOJ would have to show that it was a “predecisional” document, that it was issued before the relevant official, Attorney General Barr, had made up his mind. But it was perfectly clear that Barr was not going to prosecute a sitting president. The decision had already been made. The memorandum might evaluate whether Mueller’s evidence was sufficient to prove obstruction of justice, but that was a moot point in the face of Barr’s multiply repeated position that the U.S. Constitution forbade indicting or prosecuting a sitting president.1

Instead, the DOJ seemed to be arguing:

In the Department’s view, the privilege should cover deliberations about whether the evidence in the Report would support a criminal charge “even if the Attorney General engaged in those deliberations” not “for the purpose of considering whether to charge the President,” but rather “for the purpose of determining the content of a possible public statement regarding the report.”

C.R.E.W. v, U.S. Department of Justice, p. 20

But the problem for the DOJ was that it had not argued that point at trial. As the D.C. Circuit acidly noted,

It was not until the Department’s motion for a stay pending appeal—after it had filed its notice of appeal—that it first mentioned to the district court that the memorandum dealt with “what, if anything, to say to the public about [the] question” of whether “crimes were committed.”

C.R.E.W. v, U.S. Department of Justice, p. 22.

You don’t get to raise a new issue after the case is over. It’s for the simple reason hat if you could, a case would never end. The D.C. Circuit was especially annoyed that the DOJ tried to blame the trial judge:

According to the Department, even if it failed to establish that the March 2019 memorandum related to a decision about making a public statement, the district court should have reached that conclusion of its own accord based on its in camera review of the memorandum. The Department thus now seeks to prevail based on the district court’s in camera review even though the Department had initially objected to that review. We cannot accept the Department’s argument.

. . . . .
It would put too much on the district court—and would relieve the government of its summary- judgment burden—to expect a judge reviewing records in camera to come up with unasserted legal theories for why a document might be exempt from disclosure. To hold otherwise would “seriously distort[] the traditional adversary nature of our legal system’s form of dispute resolution.”

C.R.E.W. v, U.S. Department of Justice, p. 24-25.

The DOJ, not the trial court, had the burden of proof. The DOJ muffed it. The good news is that as a result of the muff, we get to see the arguments.

We are probably going to get a mostly unredacted copy of the memorandum written three years ago. It may be a very interesting read. But, yeah,, picking the pockets of the dead.

1 Just to be clear, Barr’s position about the accountability of a sitting president is not based on any reported cases, and there is a wealth of scholarship for the view that no man, including the guy in the White House, is above the law.But that issue was not before the court.