CREW v. DOJ

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2021 Decided August 19, 2022
No. 21-5113
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLEE
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01552)
Sarah E. Harrington, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellant.
With her on the briefs were Mark R. Freeman, Daniel Tenny,
and Daniel Winik, Attorneys.
Anne L. Weismann argued the cause for appellee. With her
on the brief were Adam J. Rappaport and Conor M. Shaw.
Jack Jordan was on the brief for amicus curiae Jack
Jordan in support of appellee.
2
Austin R. Evers and Sarah Colombo were on the brief for
amici curiae Senator Sheldon Whitehouse, et al., in support of
appellee.
Before: SRINIVASAN, Chief Judge, ROGERS and TATEL ∗,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Upon completing his
investigation of Russian interference in the 2016 presidential
election, Special Counsel Robert Mueller delivered a two-
volume, 448-page report documenting his findings to Attorney
General William Barr. The first volume addressed Mueller’s
investigation into election interference, and the second volume
addressed his ensuing investigation into whether President
Trump had obstructed justice in his actions concerning the
election-interference inquiry.
Two days after receiving the then-confidential Mueller
Report, Attorney General Barr sent a letter to Congress
providing his overview of it. With respect to the second
volume, Barr’s letter explained that the Report did not reach a
conclusion on whether President Trump’s actions amounted to
obstruction of justice; that Barr thus was left to make his own
determination in that regard; and that he had concluded that the
evidence in the Report was insufficient to show that President
Trump had obstructed justice. Barr related that his conclusion
to that effect resulted in part from consultations with
Department of Justice officials including the Office of Legal
Counsel. As part of that consultation process, Barr had
received a memorandum from the head of the Office of Legal
∗
Judge Tatel assumed senior status after this case was argued
and before the date of this opinion.
3
Counsel and another Department official, urging Barr to
conclude that President Trump had not obstructed justice.
This appeal concerns that memorandum. Plaintiff Citizens
for Responsibility and Ethics in Washington filed a lawsuit
under the Freedom of Information Act seeking disclosure of the
memorandum and related records. The Department sought to
withhold nearly all of the memorandum based on the
deliberative-process privilege, which protects records
documenting an agency’s internal deliberations en route to a
governmental decision. The district court rejected the
Department’s reliance on the deliberative-process privilege
and ordered the Department to disclose the memorandum in
full. CREW v. DOJ, 538 F. Supp. 3d 124 (D.D.C. 2021).
The court determined that the Department had failed to
carry its burden to show the deliberative-process privilege
applied. In particular, the court held that the Department had
not identified a relevant agency decision as to which the
memorandum formed part of the deliberations. The
Department’s submissions, the court explained, indicated that
the memorandum conveyed advice about whether to charge the
President with a crime. But the court’s in camera review of the
memorandum revealed that the Department in fact never
considered bringing a charge. Instead, the memorandum
concerned a separate decision that had gone entirely
unmentioned by the government in its submissions to the
court—what, if anything, to say to Congress and the public
about the Mueller Report.
We affirm the district court. The Department’s
submissions in the district court gave no indication that the
memorandum related to Attorney General Barr’s decision
about making a public statement on the Mueller Report.
Because the Department did not tie the memorandum to
4
deliberations about the relevant decision, the Department failed
to justify its reliance on the deliberative-process privilege.
I.
A.
The Freedom of Information Act (FOIA) requires federal
agencies, “upon any request for records,” to “make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
FOIA “ensure[s] public access to a wide range of government
reports and information.” Bartko v. DOJ, 898 F.3d 51, 61
(D.C. Cir. 2018) (citation omitted). Congress afforded that
access “to pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Reps. Comm. for
Freedom of the Press v. FBI, 3 F.4th 350, 357 (D.C. Cir. 2021)
(RCFP) (quotation marks omitted) (quoting Dep’t of the Air
Force v. Rose, 425 U.S. 352, 361 (1976)). “The basic purpose
of FOIA is to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the
governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978).
Congress, however, did not “pursue transparency at all
costs.” Hall & Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir.
2020). Rather, it recognized that “legitimate governmental and
private interests could be harmed by release of certain types of
information.” AquAlliance v. U.S. Bureau of Reclamation, 856
F.3d 101, 102 (D.C. Cir. 2017) (citation omitted). FOIA thus
exempts nine categories of records from “the government’s
otherwise broad duty of disclosure.” Id. at 103.
This case involves Exemption 5, which protects “inter-
agency or intra-agency memorandums or letters that would not
5
be available by law to a party other than an agency in litigation
with the agency.” 5 U.S.C. § 552(b)(5). That exemption
incorporates the deliberative-process privilege, which covers
records “reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.” NLRB.
v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (citation
omitted).
But FOIA’s “limited exemptions do not obscure the basic
policy that disclosure, not secrecy, is the dominant objective of
the Act.” Rose, 425 U.S. at 361. The exemptions are “narrowly
construed.” FBI v. Abramson, 456 U.S. 615, 630 (1982). And
the government bears the burden to show that any records it
withholds fit within a statutory exemption. RCFP, 3 F.4th at
357, 361.
B.
In May 2017, Rod Rosenstein, in his capacity as Acting
Attorney General, appointed Robert Mueller as special counsel
to investigate Russian interference in the 2016 presidential
election. See Order No. 3915-2017, Appointment of Special
Counsel to Investigate Russian Interference with the 2016
Presidential Election and Related Matters (May 17, 2017),
https://go.usa.gov/x6Tcg. Rosenstein authorized Mueller to
examine whether President Trump’s campaign had coordinated
with Russia to influence the election. Id. Mueller’s mandate
also extended to other issues that might arise in the course of
his work. Over time, Mueller began to consider whether
President Trump had obstructed justice by trying to impede the
investigation.
On Friday, March 22, 2019, after completing his
investigation, Mueller sent Attorney General Barr the two-
6
volume Report containing Mueller’s findings. The first
volume, not at issue here, concluded that the Russian
government interfered in the 2016 presidential election in
“sweeping and systematic fashion,” but the investigation did
not establish that the Trump campaign “conspired or
coordinated” with Russia. Mueller Report, Volume I, at 1–2.
The second volume addressed Mueller’s investigation into
whether President Trump had obstructed justice in his actions
responding to the election-interference investigation.
In that analysis, Mueller explained that he took as a given
that the Constitution prohibits the criminal prosecution of a
sitting President. A well-known decision from the Department
of Justice’s Office of Legal Counsel (OLC) had concluded that
the indictment or criminal prosecution of a sitting President
“would unduly interfere with the ability of the executive branch
to perform its constitutionally assigned duties, and would thus
violate the constitutional separation of powers.” A Sitting
President’s Amenability to Indictment & Criminal Prosecution,
24 Op. O.L.C. 222, 260 (2000). Mueller “accepted OLC’s
legal conclusion.” Mueller Report, Volume II, at 1.
In light of the sitting President’s immunity from criminal
prosecution, Mueller declined to determine whether President
Trump’s potentially obstructive conduct constituted a crime.
Mueller explained that accusing the President of a crime
without bringing charges would deprive him of a trial, denying
him the “ordinary means for an individual to respond to an
accusation” and potentially clear his name. Id. at 2. Mueller
observed, though, that although the OLC opinion precluded
bringing criminal charges against a sitting President, it allowed
for a criminal investigation during the President’s term.
Mueller thus conducted a “thorough factual investigation” to
“preserve the evidence,” in recognition that the President’s
immunity from prosecution would expire when he left office
7
and in service of the “strong public interest in safeguarding the
integrity of the criminal justice system.” Id. at 1–2.
While Mueller declined to accuse President Trump of
committing a crime in light of the constitutional bar to
prosecution, Mueller explained that if he “had confidence after
a thorough investigation of the facts that the President clearly
did not commit obstruction of justice,” he would have said so.
Id. But Mueller was “unable to reach that judgment.” Id. at 2.
The President’s actions presented “difficult issues that
prevent[ed] [Mueller] from conclusively determining that no
criminal conduct occurred.” Id. In sum, although the Mueller
Report “does not conclude that the President committed a
crime, it also does not exonerate him.” Id. at 182.
On the same Friday that Mueller delivered his Report to
Attorney General Barr, Barr and his advisers began preparing
a letter to Congress addressing the special counsel’s findings.
At that time, the Mueller Report was confidential (and would
remain so for roughly three weeks, pending the Department’s
identification of necessary redactions from the Report). During
the weekend following the transmittal of the Report to Barr,
several of Barr’s advisers—including Rosenstein, Assistant
Attorney General Stephen Engel, who headed OLC, and
Principal Associate Deputy Attorney General Edward
O’Callaghan—worked together to draft the letter to Congress.
At the same time, Barr asked Engel and O’Callaghan for a
memorandum answering the question Mueller had left open:
whether President Trump’s actions as described in the Mueller
Report “would support initiating or declining the prosecution
of the President for obstruction of justice.” See Memorandum
from Steven A. Engel, Assistant Attorney General, and Edward
C. O’Callaghan, Principal Associate Deputy Attorney General
1 (Mar. 24, 2019), J.A. 297 [March 2019 memorandum]. Two
8
days after Mueller delivered his Report to Barr, Engel and
O’Callaghan completed their memorandum to Barr. The
memorandum concluded that the evidence set forth in the
Mueller Report was insufficient to demonstrate that President
Trump had committed obstruction of justice.
The memorandum, it is now known (see p. 20, infra),
contained two sections. Section I recommended that the
Department should reach a conclusion on whether President
Trump’s conduct amounted to a crime. The memorandum
noted that Mueller had declined to accuse President Trump of
obstructing justice but also had declined to exonerate him.
According to the memorandum, the Report’s failure to take a
definitive position could be read to imply an accusation against
President Trump “if the confidential report were released to the
public.” Id. at 2, J.A. 298. The memorandum therefore
recommended that Barr “reach a judgment” on whether the
evidence constituted obstruction of justice. Id. Section II of
the memorandum concluded that the evidence described in the
Report did not suffice “to support a conclusion beyond a
reasonable doubt that the President violated the obstruction-of-
justice statutes.” Id. at 1, J.A. 297. Barr signed the
memorandum on the day he received it, indicating that he
approved its recommendations.
Also on that Sunday, Barr sent his letter to Congress. See
Letter from William P. Barr, Attorney General, to House and
Senate Committees on the Judiciary (Mar. 24, 2019). The letter
said that Mueller’s “decision to describe the facts of his
obstruction investigation without reaching any legal
conclusions leaves it to the Attorney General to determine
whether the conduct described in the report constitutes a
crime.” Id. at 3. The letter conveyed that, after reviewing the
Mueller Report and “consulting” with Department officials
including OLC, Barr had “concluded that the evidence
9
developed during the Special Counsel’s investigation is not
sufficient to establish that the President committed an
obstruction-of-justice offense.” Id. Barr stated that his
“determination was made without regard to, and is not based
on, the constitutional considerations that surround the
indictment and criminal prosecution of a sitting president.” Id.
C.
Citizens for Responsibility and Ethics in Washington, a
nonpartisan government watchdog organization, submitted a
FOIA request to OLC seeking “all documents pertaining to the
views OLC provided Attorney General William Barr on
whether the evidence developed by Special Counsel Robert
Mueller is sufficient to establish that the President committed
an obstruction-of-justice offense.” Letter from Anne L.
Weismann, Chief FOIA Counsel, CREW, to Melissa Golden,
Lead Paralegal and FOIA Specialist, Off. of Legal Couns.,
Dep’t of Just. 1 (Apr. 18, 2019), J.A. 63. After receiving no
response, CREW filed this lawsuit against the Department of
Justice to compel disclosure of the requested records.
During the litigation, the Department produced fifty-six
pages of records (with redactions) and withheld 195 pages in
full. By the time the parties filed competing motions for
summary judgment, CREW contested the withholding, in
whole or in part, of only two documents—the March 2019
memorandum from Engel and O’Callaghan to Barr, and
another internal Department memorandum. The district court
upheld the Department’s withholding of the second
memorandum, and CREW did not appeal that resolution. As a
result, only the March 2019 memorandum remains in dispute.
Before moving for summary judgment, the Department
released to CREW a heavily redacted version of that
10
memorandum. The Department disclosed parts of three
sentences from the memorandum’s top-line summary, as well
as its one-sentence bottom-line conclusion, while withholding
the entire remainder of the eight-and-a-half-page
memorandum. See Brinkmann Decl., Ex. A, J.A. 86–94.
Specifically, in the introduction, the Department redacted
references to a constitutional bar on prosecuting a sitting
President. For instance, the Department disclosed the portion
of one sentence conveying that the memorandum
“recommend[ed], under the Principles of Federal Prosecution,
that [Barr] decline to commence . . . a prosecution” of President
Trump for obstruction of justice. Id., J.A. 86. But in that same
sentence, the Department redacted the caveat that the
memorandum’s recommendation would apply only “were
there no constitutional barrier” to prosecution. March 2019
Memorandum at 1, J.A. 297. The Department thus initially did
not disclose to CREW and the district court that the
memorandum’s analysis assumed President Trump could not
be charged with a crime while in office.
The Department invoked the deliberative-process
privilege under Exemption 5 to justify its withholding of that
memorandum nearly in full. (The Department also invoked the
attorney-client privilege but no longer defends its reliance on
that privilege.) In support of its assertion of the deliberative-
process privilege, the Department submitted declarations from
Paul Colborn, a Special Counsel in OLC, and Vanessa
Brinkmann, a Senior Counsel in the Department’s Office of
Information Policy. Colborn explained that the March 2019
memorandum had been “submitted to the Attorney General to
assist him in determining whether the facts set forth in Volume
II of Special Counsel Mueller’s report would support initiating
or declining the prosecution of the President for obstruction of
justice under the Principles of Federal Prosecution.” 1st
Colborn Decl. ¶ 17, J.A. 51 (quotation marks omitted).
11
Brinkmann similarly described the memorandum as having
been “provided to aid” Attorney General Barr in deciding
“whether the evidence developed by [the Special Counsel’s]
investigation is sufficient to establish that the President
committed an obstruction-of-justice offense.” Brinkmann
Decl. ¶ 11, J.A. 78.
The Department later submitted a second declaration from
Colborn. In his first declaration, Colborn stated that Barr sent
his letter to Congress “[f]ollowing receipt of the
memorandum.” 1st Colborn Decl. ¶ 17, J.A. 51. Colborn’s
second declaration clarified that, while Barr had “reviewed
multiple drafts of that memorandum” before sending his letter
to Congress, the memorandum in fact was finalized “about two
hours” after Barr sent his letter. 2d Colborn Decl. ¶ 9, J.A.
207–08. But the substance of the memorandum, Colborn
stated, “did not change in any material way” between the last
draft that Barr saw before sending his letter and the final draft
Barr signed after sending his letter. Id., J.A. 208.
Over the Department’s objections, the district court
ordered it to submit the memorandum for ex parte, in camera
review. After reviewing the memorandum, the district court
granted summary judgment to CREW as to that document.
CREW v. DOJ, 538 F. Supp. 3d 124 (D.D.C. 2021). The court
explained that, to qualify for protection under the deliberative-
process privilege, a document must be both pre-decisional and
deliberative, a test that requires the government to connect the
withheld records to a specific decision-making process. The
district court concluded that the Department had failed to carry
its burden for two reasons.
First, the court determined that the Department had failed
to accurately identify the relevant decision-making process.
Although the Department’s briefs and declarations suggested
12
to the court that the memorandum contained advice about
whether to prosecute President Trump for obstruction of
justice, the memorandum itself showed that its true purpose
was something else: to advise Attorney General Barr on
whether to “offer a public opinion” on “the strength of the
evidence,” a topic that the Department had never indicated
“was even a subject of the memorandum.” Id. at 140. Second,
the court concluded that the memorandum was not pre-
decisional because Attorney General Barr had reached his final
decision on how to respond to the Mueller Report, as expressed
in the letter he sent to Congress, before the memorandum had
been finalized. See id. at 143–45. The district court thus
ordered the Department to release the memorandum.
The Department appealed, but only as to Section II of the
memorandum. The Department thus allowed full disclosure of
the introduction and Section I, which together made up the
memorandum’s first one-and-a-half pages. But the Department
asked the district court to stay its order pending appeal as to
Section II of the memorandum, which, in the memorandum’s
ensuing six-and-a-half pages, examined the evidence contained
in the Mueller Report and concluded that it was insufficient to
demonstrate that President Trump had committed obstruction
of justice. The district court granted the stay motion,
explaining that disclosure of the full memorandum would moot
the Department’s appeal.
II.
Judicial review of agency withholdings under FOIA is “de
novo.” 5 U.S.C. § 552(a)(4)(B). Likewise, we review de novo
the district court’s decision on summary judgment. RCFP, 3
F.4th at 361.
13
This case concerns the deliberative-process privilege,
which, as noted, shields from disclosure “advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.” Sears, 421 U.S. at 150 (quotation marks and
citation omitted). Effective agency decision-making often
requires candid debate of a policy option’s merits and demerits,
but “human experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances.” Id. (alteration and quotation marks
omitted) (quoting United States v. Nixon, 418 U.S. 683, 705
(1974)); see also Jud. Watch, Inc. v. U.S. Dep’t of Def., 847
F.3d 735, 739 (D.C. Cir. 2017). The deliberative-process
privilege enables agency personnel to engage in open and frank
discussions free from the chilling effect attending the prospect
of disclosure. RCFP, 3 F.4th at 361. Protecting deliberative
documents from release to the public thus safeguards the
quality of agency decisions. Dep’t of the Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001).
To properly invoke the privilege, an agency must show
that the records at issue are both pre-decisional and
deliberative. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,
141 S. Ct. 777, 785–86 (2021). A record is pre-decisional if it
was “prepared in order to assist an agency decisionmaker in
arriving at his decision, rather than to support a decision
already made.” Petroleum Info. Corp. v. U.S. Dep’t of the
Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (internal
quotation marks and citations omitted). And a record is
deliberative if it “reflects the give-and-take of the consultative
process.” Jud. Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.
Cir. 2006) (quotation marks omitted) (quoting Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980)).
14
Assessing whether a record is pre-decisional or
deliberative necessarily requires identifying the decision (and
the associated decisional process) to which the record pertains.
An agency invoking the deliberative-process privilege thus
must “establish what deliberative process is involved, and the
role played by the documents in issue in the course of that
process.” Senate of the Commonwealth of Puerto Rico ex rel.
Judiciary Comm. v. DOJ, 823 F.2d 574, 585–86 (D.C. Cir.
1987) (internal quotation marks and citation omitted). The
agency, that is, “bears the burden of establishing the character
of the decision, the deliberative process involved, and the role
played by the documents in the course of that process.” Paisley
v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on
other grounds, 724 F.2d 201 (D.C. Cir. 1984).
To be sure, the deliberative-process privilege may apply
even when the agency never reaches a final decision. That
could happen, for instance, if an idea “dies on the vine” or
meets a “dead-end.” Sierra Club, 141 S. Ct. at 786. But to
carry its burden in such a situation, the agency still must tie the
withheld records to a decision-making process, even if that
process did not ultimately result in a decision. Coastal States,
617 F.2d at 868.
A.
The Department’s submissions during the course of this
litigation have at various times suggested three decisional
processes to which the March 2019 memorandum might have
pertained. The first two, as the Department acknowledges,
cannot support its reliance on the deliberative-process
privilege. As for the third, although that one might well have
justified the Department’s invocation of the privilege, the
Department never relied on—or even mentioned—that
decisional process in the district court until the Department had
15
already noticed its appeal to this court. And the district court
was not required to grant judgment to the Department on a
theory the Department never presented before taking an appeal.
1.
The 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. Although the
Department has since clarified that it was never in fact
considering a prosecution, the Department’s submissions to the
district court appeared to indicate in various ways that the
March 2019 memorandum made recommendations about an
actual charging decision.
In his initial declaration, for instance, Colborn explained
that the memorandum “was submitted to the Attorney General
to assist him in determining whether the facts set forth in
Volume II of Special Counsel Mueller’s report ‘would support
initiating or declining the prosecution of the President for
obstruction of justice under the Principles of Federal
Prosecution.’” 1st Colborn Decl. ¶ 17, J.A. 51. Colborn’s
reference to “initiating or declining” a prosecution could
straightforwardly be read to indicate that the Department was
wrestling with whether to file charges against the President.
Similarly, Brinkmann described the Attorney General’s
decision as concerning “whether the evidence developed by
[the Special Counsel’s] investigation is sufficient to establish
that the President committed an obstruction-of-justice
offense.” Brinkmann Decl. ¶ 11, J.A. 78.
The Department’s summary-judgment briefing likewise
left the impression that the memorandum concerned whether to
bring a charge. The Department, for example, argued that the
memorandum related to the Department’s “legitimate decision
16
on whether to initiate or decline prosecution of the President
for obstruction of justice.” Def.’s Opp’n to Pl.’s Cross-Mot.
for Summ. J. and Reply Mem. in Supp. of Def.’s Mot. for
Summ. J. and Renewed Mot. to Dismiss at 14, CREW v. DOJ,
538 F. Supp. 3d 124 (D.D.C. 2021) (No. 19-cv-1552), ECF No.
19, J.A. 194 [Dep’t Summ. J. Reply]; see also pp. 22–23, infra.
And those statements would have been read against the
backdrop of the memorandum itself as it appeared at the time
of summary-judgment briefing. That version contained the
following partially redacted sentence as one of few disclosed
segments, adding to the sense that the memorandum concerned
an actual charging decision: “Accordingly, ___________
_______________ we would recommend, under the Principles
of Federal Prosecution, that you decline to commence such a
prosecution.” Brinkmann Decl., Ex. A, J.A. 86.
As a general matter, records reflecting prosecutors’ views
on whether the evidence in a case supports initiating a
prosecution will qualify for protection under the deliberative-
process privilege. That is because an analysis of the
sufficiency of the evidence would typically relate to the
ultimate decision of whether to bring charges. Accordingly,
several decisions have held that prosecutors’ notes and internal
communications about whether to file charges are exempt from
disclosure under the deliberative-process privilege. See Gov’t
Accountability Project v. DOJ, 852 F. Supp. 2d 14, 26 (D.D.C.
2012); Kishore v. DOJ, 575 F. Supp. 2d 243, 259–60 (D.D.C.
2008); Jackson v. USAO, 293 F. Supp. 2d 34, 39–41 (D.D.C.
2003). Ordinarily, the government would have little difficulty
establishing that a prosecutor’s views about the sufficiency of
the evidence form part of a privileged decisional process about
whether to initiate or decline a prosecution.
This, however, is the rare case that falls outside of that
typical understanding. As the Department concedes, it never
17
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 March 2019
memorandum analyzing the evidence against President Trump
could not have pertained to any decision about prosecuting
him. Dep’t Br. 28. The memorandum, then, was neither pre-
decisional nor deliberative as to such a decision-making
process.
2.
If the Department’s analysis of whether the evidence in the
Mueller Report would support an obstruction-of-justice charge
did not in fact relate to a decision about whether to initiate or
decline a prosecution, then why engage in that analysis? The
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.
As noted above, Colborn’s declaration portrays the
relevant decision-making process as concerning whether the
evidence presented in the Mueller Report “would support
initiating or declining the prosecution of the President for
obstruction of justice under the Principles of Federal
Prosecution.” 1st Colborn Decl. ¶ 17, J.A. 51. His use of the
conditional “would” might suggest that the inquiry was purely
18
hypothetical—i.e., if the Constitution permitted a prosecution
of President Trump, would there be enough evidence to obtain
a conviction? In a similar vein, the Department’s opening brief
in our court at one point says that the memorandum “is
privileged because it advised the Attorney General on his
decision whether the Special Counsel’s evidence was sufficient
to show that the President obstructed justice, regardless of why
the Attorney General was making that determination.” Dep’t
Br. 29–30.
It 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.
For instance, imagine if instead of asking for a
memorandum assessing whether President Trump had
obstructed justice, Attorney General Barr had requested a
memorandum on whether President Nixon’s conduct during
the Watergate scandal would constitute obstruction of justice
under current law. And suppose he asked that question because
he had simply been curious about whether Nixon committed
any crimes. Of course, the Attorney General could not be
considering the initiation of actual criminal charges against a
deceased President. Debates about whether President Nixon
19
committed a crime thus seemingly would not qualify as pre-
decisional absent an asserted connection to some ensuing
decision other than the bringing of a charge.
But we 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. And the
Department disclaimed at oral argument any intention to
withhold the March 2019 memorandum as a pure thought
experiment about whether the evidence in the Mueller Report
sufficed to show that President Trump obstructed justice. Oral
Arg. 2:20–3:45. Instead, that determination would need to
support some other decision-making process, which leaves one
more possibility, to which we turn next.
3.
Because there was never an actual charging decision to be
made in this case, and because the Department does not rely on
a mere thought experiment about whether the evidence would
support a charge as the relevant decisional process, the question
naturally arises: what is the decisional process that the
Department believes justifies its withholding of the March
2019 memorandum? The Department’s answer, per its briefing
in our court, 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.” Dep’t Br. 25–26. That is, the
deliberations about whether the evidence in the Report
amounted to a crime went to deciding whether to say something
20
to the public on that issue, not deciding whether to initiate a
prosecution (which was never on the table).
A review of the now-disclosed Section I of the
memorandum reveals how the question of whether the
evidence in the Report would support a criminal charge was
viewed to relate to the possibility of a public statement on the
matter. At the time of the district court’s decision against the
Department, Section I of the memorandum had not been
revealed to the public (or to plaintiff CREW). But because the
Department later decided to appeal the district court’s decision
only as to Section II of the memorandum, the Department
acceded to disclosure of Section I when it filed its notice of
appeal. As a result, it has now been revealed that the authors
recommended in Section I that the Department “should reach a
judgment” on “whether the President’s actions and intent could
be viewed as obstruction of justice,” and that they did so
because of a concern that “the Report’s failure to take a
position” on that matter might otherwise “be read to imply such
an accusation if the [then] confidential report were released to
the public.” March 2019 Memorandum at 2, J.A. 298.
Section II of the memorandum goes on to explain why, in
the authors’ view, the evidence in the Report would not support
bringing a charge against the President for obstruction of
justice. The contents of that analysis in Section II, the
Department argues to us, should be protected from disclosure
under the deliberative-process privilege. In the Department’s
view, the privilege should cover deliberations about whether
the evidence in the Report would support a criminal charge
“even if the Attorney General engaged in those deliberations”
not “for the purpose of considering whether to charge the
President,” but rather “for the purpose of determining the
content of a possible public statement regarding the report.”
Dep’t Br. 26 (citation omitted).
21
The Department’s view on that score might well be
correct. We have held that an agency’s deliberations about
how to communicate its policies are privileged, just like its
deliberations about the content of those policies. For instance,
we approved the Federal Bureau of Investigation’s withholding
of “proposed revisions” to a letter to the editor written by the
Bureau’s director. RCFP, 3 F.4th at 363. The revisions were
pre-decisional and deliberative because “high-ranking officials
were debating how to formulate the most appropriate and
effective response to an ongoing national controversy.” Id. We
also permitted the Department to withhold an internal report
giving officials advice on how to answer public criticism of a
proposal, because the privilege encompasses discussions of
how to promote and defend a proposed policy. Access Reps. v.
Dep’t of Just., 926 F.2d 1192, 1196–97 (D.C. Cir. 1991).
The district court accordingly “recognize[d] that internal
deliberations about public relations efforts could be covered by
the deliberative process privilege.” CREW, 538 F. Supp. 3d at
140 n.11. And here, it is now apparent that the March 2019
memorandum recommended reaching a conclusion on the
evidentiary viability of an obstruction-of-justice charge as a
means of preempting a potential public reaction to the Mueller
Report. In that light, if the Department’s submissions to the
district court had connected the memorandum to a decision
about making a public statement, then the district court might
well have concluded that the memorandum was privileged. But
that is not how the Department elected to justify its invocation
of the privilege in the district court.
Before the district court issued its decision, nothing in the
Department’s submissions had suggested that the
memorandum fell within the privilege because it advised
Attorney General Barr about making a public statement in
22
response to the Mueller Report. Any notion that the
memorandum concerned whether to say something to the
public went entirely unargued—and even unmentioned—in the
Department’s filings. Instead, as outlined earlier, the
Department’s submissions framed the memorandum as
directed at a decision about whether to charge the President, or
perhaps at an abstract inquiry about whether the evidence
would support such a charge—not at a decision about making
a public statement on that issue. Indeed, the Department
resisted in camera review of the portions of the memorandum
related to a possible decision about making a public
statement. It was not until the Department’s motion for a stay
pending appeal—after it had filed its notice of appeal—that it
first mentioned to the district court that the memorandum dealt
with “what, if anything, to say to the public about [the]
question” of whether “crimes were committed.” Def.’s Mot.
for Partial Stay Pending Appeal at 7, CREW v. DOJ, 538 F.
Supp. 3d 124 (D.D.C. 2021) (No. 19-cv-1552), ECF No. 32,
J.A. 283 (quotation marks and citation omitted).
The Department now notes that the preparation of the
memorandum occurred side-by-side with the preparation of
Attorney General Barr’s March 24, 2019, letter to Congress, in
which he set forth his conclusion that the evidence in the
Mueller Report did not support an obstruction-of-justice
charge. That context, the Department argues, makes apparent
that the memorandum would have advised Barr on whether to
issue a statement to the public through that letter (and, if so,
what conclusion to communicate).
The Department’s filings in the district court, however,
simply did not make—or even suggest—that connection. If
anything, they suggested the opposite: the initial Colborn
declaration stated that “the Attorney General announced his
decision publicly in [the March 2019] letter to the House and
23
Senate Judiciary Committees,” which indicated that his
relevant “decision” was communicated in the letter, not that his
relevant decision was about whether to send the letter (or what
to say in it). 1st Colborn Decl. ¶ 17, J.A. 51. The same
paragraph of the declaration, moreover, fortified the
impression that the relevant decision was whether to bring a
charge against the President, not whether to send a letter to
Congress. That paragraph, as noted, stated that the
memorandum “was submitted to the Attorney General to assist
him in determining whether the facts set forth in Volume II of
Special Counsel Mueller’s report ‘would support initiating or
declining the prosecution of the President for obstruction of
justice.’” Id. The Department’s later briefing reinforced that
impression all the more, repeatedly criticizing CREW’s
“irrelevant speculation . . . that the Attorney General was not
engaged in a legitimate decision on whether to initiate or
decline prosecution of the President for obstructing justice,”
Dep’t Summ. J. Reply at 14, J.A. 194 (quotation marks
omitted), see also id. at 17, J.A. 197, and relying on the notion
that the “deliberative process privilege applies to
communications related to . . . a final decision by the DOJ not
to pursue prosecution of a case,” id. at 13, J.A. 193 (quotation
marks omitted).
In short, 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.
In its briefing to us, the Department expresses regret that its
submissions to the district court could have left the
misimpression that an actual charging decision was under
consideration, and it assures us that any misimpression it may
have caused to that effect was inadvertent and not the result of
any bad faith. Still, the Department at no point indicated to the
24
district court that the memorandum gave advice on the making
of a public statement. The Department thus failed to carry its
burden to establish the relevant decisional process.
Holding an agency to its burden in that regard serves
important purposes. “The significance of agency affidavits in
a FOIA case cannot be underestimated.” King v. DOJ, 830
F.2d 210, 218 (D.C. Cir. 1987). In a standard FOIA case, the
government agency knows the full contents of any withheld
records, while the requester confronting black redaction boxes
is (literally) left in the dark. The requester’s lack of knowledge
“seriously distorts the traditional adversary nature of our legal
system’s form of dispute resolution.” Vaughn v. Rosen, 484
F.2d 820, 824 (D.C. Cir. 1973). An agency’s declarations
supporting its withholdings “must therefore strive to correct,
however[] imperfectly, the asymmetrical distribution of
knowledge that characterizes FOIA litigation.” King, 830 F.2d
at 218.
This case is illustrative. In its district court briefs, CREW
focused its arguments on why the Department could not have
been considering obstruction charges against the sitting
President. That was understandable, because CREW had no
reason to suspect that the memorandum might have related to
a distinct decisional process about making a public statement.
We cannot sustain the withholding of the memorandum on a
rationale that the Department never presented to the district
court and that CREW therefore never had an opportunity to
challenge.
The 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
25
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. We cannot accept the Department’s argument.
In a FOIA case, the government bears the burden of
showing that requested records are exempt from disclosure.
The government is a party in every FOIA case, is well versed
in the conduct of FOIA litigation, and is fully capable of
protecting its own interests in that arena. A district court can
rely on the government to do so and can assume that the
government has reasons for its choices and an understanding of
their implications. It would put too much on the district
court—and would relieve the government of its summary-
judgment burden—to expect a judge reviewing records in
camera to come up with unasserted legal theories for why a
document might be exempt from disclosure. To hold otherwise
would “seriously distort[] the traditional adversary nature of
our legal system’s form of dispute resolution.” Vaughn, 484
F.2d at 824.
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.” CREW, 538 F. Supp. 3d at 140
n.11. And because we conclude that the Department failed to
adequately identify the relevant decisional process, we 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.
26
B.
We last consider the Department’s argument that it should
have been afforded another chance. The 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.
We are unpersuaded by the Department’s assertion that the
district court needed to sua sponte grant it a do-over.
The Department was given a number of opportunities to
justify its withholding of the March 2019 memorandum. After
initially attaching two declarations to its motion for summary
judgment, the Department attached an additional declaration to
its reply brief. Those 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. But the Department never did so. Nor did
the Department ask for an additional chance to clarify its
position after seeing the district court’s summary-judgment
decision, which pointed out that the Department’s submissions
up to that point had created a misimpression about the nature
of the decisional process. The Department did not move for
reconsideration, instead seeking only a stay pending appeal.
We cannot fault the district court for not giving the Department
another chance when the Department never requested one.
We have declined to grant additional opportunities to
justify the withholding of a record in comparable
circumstances. In Maydak v. DOJ, the Department initially
sought to withhold certain records under Exemption 7(A). 218
F.3d 760, 762–63 (D.C. Cir. 2000). When the Department later
conceded that exemption was inapplicable, we held that it was
not entitled to a remand to invoke various additional
exemptions. Id. at 765. We explained that allowing the
27
Department to invoke exemptions seriatim, rather than all at
once, “interferes both with the statutory goals of efficient,
prompt, and full disclosure of information . . . and with
interests of judicial finality and economy.” Id. at 764(quotation marks, citations, and alteration omitted). Here,
requiring the district court to grant the Department an
opportunity to rely on a new decisional process would raise
similar concerns. And this case, like Maydak, does not involve
“extraordinary circumstances” in which, “from pure human
error,” the government “will have to release information
compromising national security or sensitive, personal, private
information unless the court allows it to make an untimely . . .
claim.” Id. at 767.
This is also not a case in which an agency presents a viable
legal theory for a claimed exemption but provides declarations
that come up short in tying the requested records to that
exemption. In that kind of situation, it may be prudent for a
district court to permit supplemental declarations. See, e.g.,
Shapiro v. DOJ, 153 F. Supp. 3d 253, 291 (D.D.C. 2016);
Beltranena v. Clinton, 770 F. Supp. 2d 175, 187 (D.D.C. 2011);
Smith v. ATF, 977 F. Supp. 496, 503 (D.D.C. 1997). But here,
the Department seeks to rely on a new legal theory justifying
the withholding, not to round out the evidentiary support for a
legal theory it had presented. Regardless of whether the district
court in its discretion could have sua sponte provided a second
chance even in these circumstances, the court committed no
error by granting judgment against the Department for failing
to carry its burden to identify a relevant decisional process.
Our decision is narrow. We do not call into question any
of our 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
28
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. We hold 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.
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.