Washington, DC – Senators Sheldon Whitehouse (D-RI), Patrick Leahy (D-VT), Ron Wyden (D-OR), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Elizabeth Warren (D-MA) and Cory Booker (D-NJ) filed a brief today in a major challenge to the Department of Justice’s assertion of privilege over a memo from the Department’s Office of Legal Counsel to then-Attorney General Barr about whether President Trump’s conduct, as described in the Mueller report, amounted to obstruction of justice. The Freedom of Information Act (FOIA) case, Citizens for Ethics in Washington (CREW) v. Department of Justice, carries major implications for transparency and accountability in government, as well as Congress’s ability to carry out its constitutionally required oversight duties. The senators argue forcefully for the memo’s release, pointing to the clear harm of allowing the executive branch to claim privilege over important information without justification or accountability.
“The guidelines for asserting executive privilege are procedurally and substantively disputed between the branches, and the opportunity for mischief in interbranch interactions is vast,” the senators write. “Against that backdrop, the importance to Congress of properly narrow interpretations of privileges under FOIA is plain: whether rightly or wrongly, FOIA exemptions, and in particular the deliberative process privilege, spill into executive branch privilege assertions in the oversight context. In particular, a decision here permitting the executive branch to conjure up ‘non-decision decisions’ as a means to withhold records under the deliberative process privilege will undoubtedly re-surface in the congressional oversight context. Like asserting executive privilege without any actual assertion, claiming deliberations are pre-decisional without any actual decision fails at the most basic test: the meaning of words.”
In May, U.S. District Court Judge Amy Berman Jackson ordered the Department to produce the memo. Judge Jackson found that the Trump Justice Department’s description of the document “served to obscure the true purpose of the memorandum,” and held that Department could not withhold it under FOIA’s “pre-decisional” deliberative process privilege. The Biden Justice Department appealed to the D.C. Circuit Court, arguing that the memo should be shielded because it recorded pre-decisional advice as part of a true decisional process.
The senators’ brief argues that the pre-decisional deliberative process privilege does not apply because, given DOJ’s policy that a sitting president cannot be indicted, Attorney General Barr’s abstract legal conclusion as to the legality of Trump’s actions did not amount to a protected “decision.” They argue that accepting Department’s overbroad view of what constitutes a “decision” under FOIA’s “pre-decisional” deliberative process privilege would undermine FOIA’s purpose of promoting government transparency. The brief further argues that in light of executive branch reliance on FOIA privilege principles in the congressional oversight context, an overly broad view of the deliberative process privilege threatens congressional oversight and the proper balance of power between Congress and the executive branch.
The senators continue, “An expansive view of this privilege, particularly in the hands of agency officials largely unchecked in their ability to block access to executive branch information, could wreak serious harm to robust and healthy congressional oversight. Such an outcome may appeal to shortsighted executive officials, but only to the detriment of the Constitution and the people.”
Read the senators’ full brief here.
