Frankenstein’s OLC: DOJ Says DOJ Can’t Do What DOJ Did in the Barr Memo

DOJ’s memo asking Amy Berman Jackson to stay her opinion releasing the OLC memo admits that DOJ is not permitted to do what DOJ did with the Barr memo it is trying to withhold from FOIA. And part of the memo itself, which DOJ unsealed last night, also shows DOJ is not permitted to do what DOJ did.

The memo itself admits, for example, that the OLC is not permitted to do what only other parts of DOJ — here, FBI — have the authority to do.

One relevant factor in determining whether a document is predecisional is whether the author possesses the legal authority to decide the matter at issue. See, e.g., Electronic Frontier Found. v. DOJ, 739 F.3d 1, 9 (D.C. Cir. 2014) (“OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy.”).

That undoubtedly extends to prosecutorial decisions. And yet OLC did make a prosecutorial decision.

Rather, the declarations and briefs on the whole made clear that the decision in question was whether the facts articulated by Volume II of the Special Counsel’s Report were sufficient to establish that the President had committed obstruction of justice, i.e., whether the facts constituted prosecutable conduct under the Principles of Federal Prosecution.

DOJ found a way around that, of course, in Julie Straus Harris’ flourish: the inclusion of Ed O’Callaghan in the deliberation. Except that’s a problem, because every declaration in this litigation treats this as an OLC memo, not a prosecutorial memo.

Moreover, it means O’Callaghan made a decision he was not permitted to do by the OLC: make a decision about whether or not the President committed a crime.

In fact, the memo itself states that DOJ is limited in what it can do: either bring charges or not.

Although the Special Counsel has declined to reach a conclusion, we think that the Department should reach a judgement on this matter. Under traditional principles of prosecution, the Department either brings charges or it does not.

Except in this instance, Barr did something else (indeed, ABJ’s memo makes it clear that was the entire point): he announced a decision on prosecution that was more than a declination. He chose to make a decision that OLC says he can’t make.

OLC does not, as it would be required to, state that DOJ can make a prosecutorial decision that involves something other than bringing charges or not.

This is, ultimately, a Frankenstein monster, both a prosecutorial decision that, absent more analysis than appears here, OLC says neither O’Callaghan nor Barr were permitted to make, and an OLC memo engaged in a prosecutorial role that OLC says OLC can’t do. Effectively, then, this memo engages in activities that defies the claim that OLC guidance governs the entirety of the Executive Branch, including OLC.

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39 replies
  1. bdorbin says:

    since it’s the president, doesn’t the olc memo on prosecuting sitting potus make the decision moot?

    • bmaz says:

      Lol, no. The memo, actually memos plural, have never really been tested and likely would not hold water if they were. Also, too, they could be rescinded/pulled in a heartbeat by the current OLC. Seriously, people give this too much credence. It is NOT what Barr made it out to be.

      • ApacheTrout says:

        These OLC memos (written by one branch of the government) have extraordinary power over the Constitutional system of checks and balances. Kudos to ABJ for attempting to assert judicial authority. Boos and hisses to every single Speaker of the House since the Nixon era for passive subservience to the Executive Branch.

  2. yogarhythms says:

    Ew,
    Mary Shelley new a monster and ABJ thinks she has seen one too. Is it to early to pole the question? I really want to see the stitches holding this monsters body parts together.

    [FYI, duplicate comment deleted. /Rayne]

      • Chetnolian says:

        This foreigner had to follow the twitter thread to understand this. I do spend quite a lot of time trying to explain that transparency can have problems. I assume the problem is really precedent. The current AG does not wish to open the floodgates to future unfriendly administrations. I guess the problem is following an administration which thought following the rules was for wimps.

        • bmaz says:

          Yes, indeed. But, exercise of discretion, in the public interest, need not always be binding precedent. They could let this loose. It is probably pretty ugly though, so they do not want to.

          • Rugger9 says:

            However, such a theory assumes that the GQP would equally honor the norms and discretion, and we see from the Benghazi investigations and Durham’s snipe hunt that such assumptions aren’t valid.

            Open the books. As the Romans observed: let justice be done, though the heavens fall.

            • Charles says:

              I agree with you. One side thinks that by following the rules, they can shame the other side into following them too. It’s not happening.

              I do suspect that the appeal will fail, and then ABJ’s restraint against DoJ’s abuses of authority will be judicially reinforced. But we should never have gotten to this stage of corruption of the process.

              • earlofhuntingdon says:

                The Democrats love playing neutered Greeks to the GOP’s Roman despots. They rely on the false hope that, if they can teach the GOP a few manners, they will somehow be less Roman, all while ignoring the lean and hungry look of the party’s phalanx of Marjorie Taylor Greenes.

                Democrats risk suicide by bipartisanship. The current GOP has no shame, it has a will to power. It will invent any reality to claim it – and to deny the Democrats’ equivalent right to govern. (Rather like Johnson’s Tories.) The future of America depends upon their admitting that particular reality, which they are numbingly reluctant to do.

                As for Barr, et al., pursuing him and his patrons via prosecution would bring all that into the open, and probably lead to a civil war that is now only barely concealed.

                For me, Biden threads that needle by acting on an acute awareness of the GOP’s goals, by legislation and policy, and by fierce opposition to what has become a mountain of GOP voter suppression efforts. That may only delay the inevitable. But it’s worth a try, for we have become a tinder box, waiting for a match in the guise of some archduke’s virtual untimely end.

                • Rayne says:

                  Aw Cheezits, earl, you annoy me with this pontification crap about the Dems. I don’t like what Pelosi is doing with her playing by the book, but it’s not as if you haven’t been watching the GOP and the corporate-owned media beating the Democrats into mush every time they breathe sideways while letting monsters like MTG/Boebert/Gaetz/others off the hook. Coverage right now should be wall-to-wall about the death of the GOP and the rise of an anti-democratic authoritarian entity inside its hollowed-out body, but no, it’s “Dems in disarray” and you go right along and sing back up which sure as hell isn’t going to persuade voters to turn out come 2022.

                • earlofhuntingdon says:

                  That’s Jalapeno cheese curls, please. My point is not the MSM’s false claim that the Dems are in disarray. It is that they are reluctant to do what you want the MSM to do: call out the anti-constitutional violence and obstruction of the GOP. The Boeberts, Greenes, and Gaetzes are not outliers, or even useful extremists, like Joe McCarthy. They are principals.

                  • Rayne says:

                    Every time the Dems go off target — getting shit done wrt voters’ rights, pandemic response, and oversight — they are pummeled. A key function of MTG/Boebert/Gaetz/et al is to create chaos in order to derail getting shit done.

                    Only need to look at what happened to AOC over the last couple of weeks when her efforts were intersected by MTG and what the fucking media did, ex. making a stink about AOC’s alleged parking violation with her Tesla. AOC didn’t even go off target, she’s dragged off.

                    • Troutwaxer says:

                      The problem is that this is a vicious circle. The Dem’s inability to strongly call out the Republican ugliness ALL THE TIME invites the treatment they receive. Yes, the Democrats are victims here, and I hate to victim-blame, but make a consistent point of putting on your armor, and pulling out your sword, and going after the Republicans and the idiot journalists and this shit will stop happening!

  3. Peterr says:

    This memo is filled with backpedaling and apologies. “We regret that . . .” and “We did not mean to suggest . . . ” and “We regret language that was imprecise . . .” and ” . . . reflects a misunderstanding of the arguments the government was intending to make . . .”

    When this is combined with the immediate “go ahead and release Section I” at the top of the memo, I can’t help but think that this reply memo is a Hail Mary by the DOJ. ABJ nailed them and nailed them good in her initial ruling, and they are praying to find some wiggle room to preserve a modicum of their former dignity.

    Good luck with that.

    • Savage Librarian says:

      Maybe the Hail Mary is, “We just want to remind everyone that we are bipartisan.” ?

  4. Berto says:

    Did the DOJ break the law, or perform a miracle?
    If they broke the law, charge them. If they performed a miracle, ask them to perform more.

          • Max404 says:

            Pork, on a good day. Here‘s what I think. It sucks and in a really big way. It is just too twisted for my sense of right and wrong that any sausage-shitting mortal deserves 10000 a day that would be 3,650,000 a year for words, even if they did come out of their arse, while others face eviction, etc.

            My deadly serious point is that any nonchalance ( of which I am not accusing you ) on the subject of wealth inequality makes my blood boil.

            • Rayne says:

              I think you mistake billable hourly rate for income. It’s not all personal income. Lawyers’ fees pay wages of all staff who aren’t billable along with all other overhead and taxes out of that billable rate. It’s a business and the means of production aren’t physical assets but nevertheless means of production which must be paid for — and I’ll point once again to education.

              It cost a quarter million bucks to educate two kids one of whom had a half-ride at a private school and the other a state university program. If one of them went on to get a masters or JD, that’d be another $30-50K. It could have cost even more depending on the school, and the school influences where graduates are hired. That expense had better be made back in income especially for students who are carrying loans.

              You’re not complaining much about the engineers and other experts who similarly have to acquire education and licensing or certification in order to provide necessary services. You might consider why lawyers are different to you when the average lawyer in America isn’t working for a white-shoe law firm.

              • Rayne says:

                For the trolls thinking to drop by and leave insults: Find the exit unless you have something constructive to add. Buh-bye.

                Funny how folks have zero complaints about using this site for edification or entertainment but think the persons here came by their skills out of thin air, used chewing gum, and baling wire. We’re educated professionals, business people who’ve billed for our expertise who are providing this site and content at no expense to the community (though we’ll accept donations to pay for hosting, bandwidth, maintenance).

              • bmaz says:

                What we colloquially call “overhead”. And it is simply a ton if you are practicing the right way. I was fortunate that, even when a partner with a top tier MH AV rated firm, I had the ability to mostly bill and collect as I chose. But, as a partner, my bottom line might suffer. Which was fine. I have even more control now, but the bottom line is still there. Try to do what is right. But it all takes money. That is the way it is.

                • Rayne says:

                  Yup, had overhead as a consultant, now my spouse has overhead as an engineering consultant. Need an office, computers, network, printers, beaucoup old files in spouse’s case, lights, phone, insurance, on and on. Might need to accept lump sum terms instead of hourly; might have a good contract and then then next one eats everything and then some. You know the drill. I hate tax season not so much because of the taxes as much as having to revisit every jot and tittle.

              • P J Evans says:

                My niece with a JD from UCLA isn’t practicing as a lawyer now – she does legal interpreting (Legal to ASL) and teaches ASL. She doesn’t read lips or speak, so it’s a lot harder to get a job that pays for the education.

  5. Rugger9 says:

    My opinion about the limited hangout attempt I’ve noted on the prior thread, the short version is there’s no good reason for it.

    There cannot be any worthwhile Ds on the list of potential exposure, so it would seem the only ones protected are the previous administration officials from DJT on down. We’d probably find out Jared and Ivanka were involved too as well as Miller. However, since the DOJ has chosen to hide stuff, perhaps the HJC can dig into this in more detail to get the evidence on the record and wipe out some more hiding places for corruption. They also should look into Kavanaugh’s magical debt wipeout and some of the rumors about recusals that should have happened on the recent 6-3 decision for example.

    If DOJ pushes back, then it’s time for the HJC to make the OLC memos a legal issue to force the courts to decide whether corruption is OK to be hidden because POTUS did it. If as expected the SCOTUS votes to uphold OLC memos as law, then court reform will have its casus belli (but, I expect Roberts on legacy grounds and Gorsuch possibly might get a conscience for a 5-4 to prevent this from happening now). That no one is above the law is a fundamental principle of democracy as noted by the founders.

  6. SteveL says:

    There is a profound illogic in the last two sentences of the memo (https://int.nyt.com/data/documenttools/olc-mueller-report-memo/d5a8c423fee97ec3/full.pdf) before redactions begin:

    “Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public. Therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate given the evidence recounted in he Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.”

    Under the stated objective of avoiding improper prejudicial impact on the president, it would only make sense to go further than Mueller–making a prosecutorial judgement as to whether the president’s conduct was criminal–if you knew that you would answer in the negative. Otherwise, undertaking this analysis would exacerbate the harm the memo’s authors claim to seek to avoid.

    [FYI, your username has been reverted to the one you’ve used in your previous 31 comments. Please stick to the same username so community members get to know you. Thank you. /~Rayne]

    • JamesJoyce says:

      This is right out of:

      Verdict at Nuremberg…

      Twisted Law allowing logic which is illogical.

      Good old John Leland “imposition” imposed on America by modern day fascists continuing to assault reason and America using lies.

      1933 all over again.

  7. CD54 says:

    DOJ: We reserve the right to defend DOJ integrity — even when we show none.

    Seems like “pinky swears” go a long way inside DOJ.

  8. John Colvin says:

    Maybe I am being too generous, but it is my impression that the DOJ does not care about defending the conduct of the Trump-era political appointees who were looking to defang the Muller report, but is instead concerned about defending the principle that “pre-decisional advice” does not lose its protections merely because it gets incorporated in a memo that is not finalized until after the “advice” is acted upon. The old adage about bad facts making bad law may well haunt the DOJ.

    • bmaz says:

      Frankly as I said earlier in one of these threads, it is just more complicated than that. And I think Marcy has demonstrated exactly why that is.

      • John Colvin says:

        I agree that there are a lot of moving parts and appreciate Marcy’s explication. But I still think it is possible that the main reason Garland’s DOJ continues to resist may have more to do with an institutional fear about the precedential impact of Judge Amy Berman Jackson’s analysis about what makes a document “pre-decisional” than it does protecting the former players. Maybe I’m naive …

        • bmaz says:

          That is the thing though, you can have both. That is the nature of Article II discretion.

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