Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 21-5113, 2022 WL 3569241 (D.C. Cir. Aug. 19, 2022) (Srinivasan, C.J.)

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 21-5113, 2022 WL 3569241 (D.C. Cir. Aug. 19, 2022) (Srinivasan, C.J.)

Re:  Request for records Attorney General reviewed in advance of his public announcement concerning Special Counsel’s report of investigation into Russian government’s interference in general election and acts taken by the President in connection with the investigation

Disposition:  Affirming district court’s grant in part and denial in part of government’s motion for summary judgment; affirming district court’s grant in part and denial in part of plaintiff’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  “[The Court of Appeals for the District of Columbia Circuit] affirm[s] the judgment of the district court.”  The court relates that at issue is a “memorandum that concluded that there was insufficient evidence that the President had obstructed justice.”  The court then analyzes the government’s three main rationales for the invocation of the deliberative process privilege.  The court relates that “[t]he first of the three decisional processes suggested in the Department’s submissions to the district court concerned whether to charge President Trump with a crime.”  “As the Department concedes, it never in fact considered charging President Trump with obstruction of justice or any other crime.”  “Instead, like Special Counsel Mueller, the Department took as a given that the Constitution would bar the prosecution of a sitting President.”  “In light of the Department’s ‘well-known and longstanding view that a sitting President cannot be indicted or prosecuted,’ [the court finds that] the March 2019 memorandum analyzing the evidence against President Trump could not have pertained to any decision about prosecuting him.”  “The memorandum, then, was neither pre-decisional nor deliberative as to such a decision-making process.”
  
  Regarding defendant’s second rationale, the court relates that “[t]he Department’s submissions to the district court perhaps could be interpreted to indicate that the memorandum's analysis of that question, if not related to an actual charging decision, was instead part of an abstract thought experiment.”  “On that conception, the memorandum formed part of an academic exercise to determine whether President Trump’s conduct met the statutory definition of obstruction, solely for Attorney General Barr’s information, without any connection to any ensuing action by Barr or the Department.”  The court finds that “[i]t is not at all clear that a purely hypothetical, academic discussion among agency personnel could qualify for protection under the deliberative-process privilege.”  “It is true that, early in a decision-making process, an agency might host a free-flowing brainstorming session at which staff members toss around ideas without necessarily having a specific ultimate decision in mind.”  “And those sorts of early-stage discussions would ordinarily qualify for protection under the deliberative-process privilege.”  “Presumably, though, the deliberations in that kind of situation at least would have the possibility of leading to some later decision.”  “If there were no such possibility – as was the case here with respect to the actual bringing of charges – it is difficult to see how the conversation could be pre-decisional and deliberative so as to implicate the privilege.”  “But [the court] need not decide in this case whether the deliberative-process privilege could ever cover a record memorializing an agency’s abstract thought experiment, divorced from any possible ensuing agency decision.”  “The Department does not seek to justify its invocation of the deliberative-process privilege on any such rationale.”
  
  The court relates that the government’s third rationale for invoking the deliberative process privilege is “that the memorandum ‘was intended to assist the Attorney General in deciding what, if anything, to communicate to Congress and the public about whether the evidence recounted in the Special Counsel’s report was sufficient under the Principles of Federal Prosecution to support a prosecution.’”  The court finds that “while the decisional process on which the Department now relies involved a determination as to whether the Attorney General should make a public statement, none of the Department’s submissions to the district court suggested that the March 2019 memorandum related to such a decision.”  “The Department thus failed to carry its burden to establish the relevant decisional process.”  “[The court] cannot sustain the withholding of the memorandum on a rationale that the Department never presented to the district court and that [the requester] therefore never had an opportunity to challenge.” 
  
  The court relates that “[t]he Department contends that, even if the district court was not required to grant judgment in its favor, the court at least should have given the Department an opportunity to make supplemental submissions.”  “[The court is] unpersuaded by the Department’s assertion that the district court needed to sua sponte grant it a do-over.”  The court explains that “[the government’s] three declarations, coupled with the Department’s two briefs, gave ample opportunity to identify Attorney General Barr’s messaging to the public as the relevant decisional process.”  “The Department did not move for reconsideration, instead seeking only a stay pending appeal.”  “[The court] cannot fault the district court for not giving the Department another chance when the Department never requested one.”
  
  The court further explains that “[its] decision is narrow.”  “[It] do[es] not call into question any of [its] precedents permitting agencies to withhold draft documents related to public messaging.”  “Indeed, if the Department had identified the March 2019 memorandum’s connection to public messaging, the district court might well have sustained the Department’s reliance on the deliberative-process privilege.”  “And of course nothing in our decision should be read to suggest that deliberative documents related to actual charging decisions fall outside the deliberative-process privilege.”  “[The court] hold[s] only that, in the unique circumstances of this case, in which a charging decision concededly was off the table and the agency failed to invoke an alternative rationale that might well have justified its invocation of the privilege, the district court did not err in granting judgment against the agency.”
   
• Litigation Considerations, In Camera Inspection:  The Court of Appeals for the District of Columbia Circuit relates that “[t]he Department responds with an argument that would effectively shift the burden from the Department to the court.”  “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.”  “[The court] cannot accept the Department’s argument.”  “Here, the Department failed to satisfy its burden, and the district court, as the court itself explained, was ‘under no obligation to assess the applicability of a privilege on a ground the agency declined to assert.’”  “And because [the court] conclude[s] that the Department failed to adequately identify the relevant decisional process, [the court] need not consider the district court’s alternative holding that the memorandum was not pre-decisional because it was finalized after Attorney General Barr’s letter to Congress.”