Thread by @twoodiac

The Court’s full, unredacted, unsealed memo is now available on Document Cloud. 1/19 tinyurl.com/yg3v47zd

Bottom line: Amy Berman Jackson has unequivocally found in favor of CREW’s FOIA request that the DOJ did not meet the requirements for establishing “deliberative process” in order to block the FOIA request. 2/19

That entails that ABJ has found that Section II of the Department’s memo is not protected from the request either. 3/19

Her finding renders it quite possible--even likely--that ABJ will assert her judicial authority and release the full unredacted report. In fact, unless she recedes from her finding, she must do so. She’s faced with a legal challenge in the form of a FOIA request, after all! 4/19

There are two parts to her finding.

One is that (as we all knew) Barr had already decided not to prosecute, so the deliberations were not “pre-decisional.” 5/19

But the far more damaging part of her finding is that the DOJ”s memo was addressing a *hypothetical*, which was:

Assuming that the Department *could* prosecute a sitting president, 6/19

did the Mueller Report find evidence beyond a reasonable doubt that POTUS had obstructed justice? (In Section II, all of which has been redacted, the OLC found, preposterously, that the Report did not.) 7/19

It was the opinion *addressing this hypothetical* by the OLC that Barr used when he told Congress and the public in his press conference that Trump had been *exonerated.* 8/19

This is not what Mueller concluded, and Barr’s own opinion is clearly untenable, given all the evidence presented in the Mueller Report even in its currently redacted form. 9/19

However, so far as the FOIA issue is concerned, the more important point is that the OLC was acting out of bounds in even addressing the question. 10/19

The Office of Legal Counsel is in no position to address *that* question because it is constrained by its own opinion that the DOJ cannot prosecute. The OLC cannot have it both ways! 11/19

But for the Trump DOJ (Barr and Engel and Rosenstein) the constraint presented by that opinion was a problem, because Mueller had pointed out in his Report that *Congress* could prosecute (that is, impeach) and DJT could be prosecuted for OOJ when out of office. 12/19

In order to defang that crucial part of the Report, Rosenstein, Barr, and the OLC had to address the question themselves whether Mueller had found evidence beyond any reasonable doubt that POTUS (DJT) had obstructed justice. 13/19

But that was a question that OLC was not in a position to even ask. It certainly wasn’t in a position to ask that question *AND ALSO* assert that its deliberations were protected from FOIA requests by the “predecisional deliberations” rule. 14/19

That is because, to put it as starkly as possible, there was no decision being made, and no *decision* that *could* be made by the AG on the question. 15/19

Everything that the OLC did working hand in glove with Rosenstein and Barr was totally out of bounds. It had *nothing* to do with “pre-decisional deliberation.” It was an effort to “land the plane* for good--and not to justify the DOJ’s decision against prosecution. 16/19

No wonder Judge Jackson has found that the whole thing was an exercise in public relations (i.e., drive a stake through the heart of the Mueller probe and any move toward Congressional impeachment proceedings), and not a predecisional deliberative matter at all. 17/19

Don’t be surprised if ABJ releases the whole unredacted thing, including Section II, despite Garland’s appeal.

Also keep in mind that even if she doesn’t, the whole dustup is going to put McGahn’s closed door testimony next week before Congress under the klieg lights. 18/19

Ds in that session--and all the rest of us--will want to know how the OLC reached the conclusion that Trump didn’t obstruct justice when he ordered McGahn to get Mueller fired when it obviously *was* obstruction of justice. 19/19

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