WSJ 5/11/2021 By William McGurn
Federal Judge Amy Berman Jackson has an answer for all those hoping to heal and move on from the Trump years: Nothing doing.
Her answer comes by way of a Freedom of Information Act lawsuit brought by the left-leaning Citizens for Responsibility and Ethics in Washington. In her ruling, Judge Jackson orders the Justice Department to make public an internal March 2019 memo to then-Attorney General Bill Barr about whether to prosecute President Trump.
The pretense is that this is about Mr. Barr, whom the judge accuses of being “disingenuous” about his handling of special counsel Robert Mueller’s report on Russian interference in the 2016 presidential election. In reality, her tirade is but the latest expression of Mueller Madness: the great liberal frustration that, in the end, there was no “there” there in the Mueller report.
We know this not from Mr. Trump or Mr. Barr but from their fiercest foes. When Democrats finally did get around to impeaching Mr. Trump, they made a conscious decision to ignore the Mueller report. Instead, their (first) impeachment was over a phone call Mr. Trump made to Ukrainian President Volodymyr Zelensky.
On Dec. 10, 2019, the New York Times reported that, after consulting with her caucus, Speaker Nancy Pelosi decided the House would move ahead with two articles of impeachment. Each would focus narrowly on Ukraine. A third impeachment charge, tied to Mr. Mueller’s report, was “too much of a reach.”
In short, Mr. Mueller’s first shot at Mr. Trump was collusion with the Russians, for which he found no evidence. His second shot was obstruction of justice, but he punted on a decision about whether what he found was a crime. This shot didn’t hit its mark either when Congress declined to act on it.
Plainly the judge is hoping the third time’s the charm. If she can’t get Mr. Trump, maybe she can at least tarnish his attorney general.
One of the judge’s complaints is that in reducing the 448-page Mueller report to a four-page summary of its principal conclusions and releasing it to the public, Mr. Barr was trying to “hide the ball.” The idea is ludicrous, given that Mr. Barr made public almost the full report—complete with its hundreds of pages detailing Mr. Trump’s bad behavior—only three weeks later. In his letter Mr. Barr duly noted Mr. Mueller’s point that the report didn’t “exonerate” the president.
Now, two years later, Judge Jackson revives the special counsel’s complaint that the attorney general’s letter didn’t fully capture “the context, nature, and substance” of his report. What the judge doesn’t point out is that Mr. Barr then called Mr. Mueller to ask what he’d got wrong and, according to a Justice spokesman, Mr. Mueller conceded there was nothing inaccurate but felt the media coverage was misinterpreting it and wanted more released. Weeks later, when Mr. Mueller testified before the House Judiciary Committee—the perfect opportunity to tell the world about the ball Mr. Barr had hidden—he again retreated into vague generalities.
We are left with a federal judge reaching into internal Justice Department communications in a way that, if allowed to stand, would jeopardize the ability of any attorney general to get candid advice from his staff. In an argument that sounds less like the words of a dispassionate judge than the fantasies of a naked partisan such as Democratic Rep. Adam Schiff, Judge Jackson claims to know—without proof and apparently without appreciation for how the Justice Department functions—that Mr. Barr had already made his decision before the memo. Her opinion is a reminder of how egregious prosecution could be if left to judges.
After her ruling, gleeful headlines reported that a judge had all but called Mr. Barr a liar. Some who should know better—e.g., Neal Katyal, acting U.S. solicitor general during the Obama administration—have piled on by talking up possible criminal charges.
This is a test for Merrick Garland. As attorney general he surely has an interest in keeping confidential his own department’s internal deliberations on controversial issues. Whether the Justice Department appeals Judge Jackson’s outrageous decision will tell us whether Mr. Garland really is a square shooter, as he has been sold.
Meanwhile, there have been almost no public defenses of Mr. Barr. Partly this is because he is loathed by Democrats for launching an investigation into the Federal Bureau of Investigation’s 2016 Trump-Russia probe. Partly it’s because some Republicans are also sore at him for not backing Mr. Trump’s claims that Mr. Biden won the 2020 election because of widespread election fraud.
None of this changes the reality of Mr. Mueller and his report: He found no underlying crime, his investigation was not obstructed, and he was never able to cite a single case involving the obstruction statute in which a government official—much less a president—was prosecuted for exercising his legitimate authority. In ruling as she has, Judge Jackson has shown herself to be another bitter partisan who cannot bring herself to face these facts.
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