Thread by @twoodiac

Let us put the problem this way: What exactly is the legal status of Section II of the DOJ memo that was signed by Steven Engel, Asst AG, Office of Legal Counsel, and that was submitted to Bill Bar? 1/21

DOJ has told the court that it represents internal pre-decisional deliberations that are, according to the rules about such deliberations, protected from FOIA requests. 2/21

Amy Berman Jackson has obliterated this characterization of the legal status of Section II because, quite simply, there was no decision being made and no decision that the OLC *could* have been making about whether Trump should be prosecuted for OOJ, 3/21

at least in the eyes of the OLC itself, given the OLC’s own opinion that he could not be prosecuted as POTUS in any case. So Section II of the memo utterly fails to meet the test for “pre-decisional deliberation.” 4/21

But if Section II does not represent pre-decisional deliberation, what does it represent? 5/21

Well, as @jentaub has pointed out, it seems to have the status *of a legal opinion* about whether the Mueller Report provided enough evidence to prosecute Trump for obstruction 6/21

even when he is out of office (or for potential impeachment proceedings by Congress)--a legal opinion that so far has been left standing by Garland.

And as we know, the Trump DOJ found (Section II)--preposterously--that the Report did not find sufficient evidence for that. 7/21

That question is a longstanding issue that has been foregrounded now because of the FOIA request--for a couple of reasons.

First, having reached that conclusion, Section II *must* be made public. Indeed, it should have been made public by Bill Barr at the time. 8/21

That is because there is nothing under the law--even administrative law--that holds that a public agency can have a substantive opinion determining decisions and policy that is sealed and unpublished. 9/21

If Section II is in fact the position of the DOJ, then it must be made public, just like the standing OLC opinion that a sitting president cannot be prosecuted. Section II would have the same standing. 10/21

The DOJ could not finesse this problem by contending that it was only arguing ex hypothesi about a particular case, rather than establishing a general rule. 11/21

This wouldn’t work, because, in order to reach the conclusion it did, the OLC would necessarily have had to invoke reasoning and legal principles that the Department believed could and should be applied to cases *not* involving a sitting president. 12/21

And that’s a problem, because the reasoning must have been pure hogwash. At the very least, the reasoning must be questionable and challengeable. 13/21

And that means that if Section II were disclosed, Garland would then be asked by the public: Do you yourself support these (bogus) arguments and its (fraudulent) conclusion? 14/21

And that’s an explosive question for Garland, because the DOJ can--and should--prosecute Trump for OOJ now that he is out of office. 15/21

It’s clear what Garland *should* have done, even if he didn't want to. (Why he didn’t is anyone’s guess.) He *should* have unsealed Section II because it was neither an account of a pre-decisional deliberative process under the rules 16/21

nor something that could be shielded from public view if, on the alternative, it was a legal opinion with a bearing on obstruction of justice litigation not involving a sitting president. 17/21

One of the morals for all government agencies in all of this is the following: Do not try to immunize internal deliberations (and in fact substantive legal opinions) from public view 18/21

with claims about pre-decisional deliberations that are BOGUS, and that will be called out by federal judges.

If you do that, EVERYTHING can blow up in your face. 19/21

PS1/ Before Congress and in his public press conference, Barr alleged that the OLC had found that Mueller did not provide sufficient grounds to prosecute Trump for OOJ, and did so without disclosing Section II and therefore without giving the grounds for the OLC’s opinion. 20/21

PS2/ FOUL! You cannot appeal to that opinion without giving the public the opinion! That’s not what legal opinions are! That’s not how the law works! DOH! 21/21

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