Biden’s DOJ Should Release the Trump-Case Memo

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Then-President Donald Trump listens as then-Attorney General William Barr addresses the coronavirus task force daily briefing at the White House, March 23, 2020. (Jonathan Ernst/Reuters)

Who can be trusted? We have to be able to answer that question for ourselves, which is why the best medicine is transparency.

Joe Biden ran as the antidote to Donald Trump, but his administration has exhibited the worst kind of continuity with that of his predecessor, including overseeing a Department of Justice that prefers to do its business in secret.

It is time for sunshine over at Justice — and lots of it.


Currently at issue is a 2019 DOJ memo prepared for then-Attorney General William Barr related to the question of whether Trump obstructed justice as president and whether a criminal prosecution on related charges would or could proceed. A federal court has ordered that the memo be made public, and the DOJ ought to comply — but is trying to wriggle out of it instead and continue to do its business in the shadows.

The DOJ under Trump wanted the memo kept secret, and now the DOJ under Biden wants it kept secret. Presidents come and go — bureaucracy is forever.

U.S. District Judge Amy Berman Jackson charges that the DOJ, and Barr in particular, was “disingenuous” in handling the case in her courtroom, and she has ordered the release of the full DOJ memo. The DOJ has released part of the memo and is appealing to keep the rest hidden.

Judge Jackson is not alone in her low estimate of the DOJ’s honesty: Judge Reggie Walton of the U.S. District Court for the District of Columbia also charged Barr with a “lack of candor” — a very gentle way of saying “shenanigans” — in his handling of the special-counsel report from Robert Mueller.

The several investigations of Donald Trump present sticky questions. For the administration of Barack Obama to open an intelligence operation targeting the Republican nominee in 2016 has about it more than a faint whiff of the banana republic, and this is made worse by the fact that in 2017 the FBI falsified a document in order to win court approval for extended surveillance of a Trump confidante. FBI lawyer Kevin Clinesmith was convicted on criminal charges stemming from that evidence-editing but, scandalously, avoided prison time. Corruption of this sort is a much more serious problem than is, say, the apple-stealing stuff Martha Stewart went away over, but our federal Olympians must not be subjected to the indignity of incarceration.

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It would take a great deal of generosity not to see the investigation of the Trump campaign as fitting neatly into a pattern of behavior by the Obama administration, exemplified by, among other things, the IRS chief lying to Congress in order to cover up the fact that the agency was engaged in partisan political harassment and then destroyed email evidence to cover up the fact. The IRS’s bad faith in these investigations has been confirmed by the U.S. District Court for the District of Columbia. But it wasn’t just the IRS: The Obama administration weaponized everything from the National Labor Relations Board to the Bureau of Alcohol, Tobacco, Firearms and Explosives.


The accumulated weight of such misbehavior is not only moral but also practical: The Trump campaign may have had more red flags than a May Day parade, but the Obama administration had so thoroughly undermined its own credibility that no sensible person would trust it to handle a tricky situation such as the Trump investigation with professionalism and sensitivity — or honor. This does not excuse the subsequent Republican descent into conspiracy-theory madness and all that has followed from that, but the kernel of mistrust at the center of that paranoiac outlook is not entirely unmerited.


Who can be trusted? We have to be able to answer that question for ourselves, which is why the best medicine here is transparency.


A federal judge has ordered a DOJ memo to be released — why go to the wall to keep it secret?

Given the political reality, it is difficult to imagine the Biden administration bending over backward to do a favor for Bill Barr or for any other figure from the Trump administration. But the DOJ has long-term institutional interests that outlast attorneys general and presidents. And, like practically every other government bureaucracy you ever have encountered, the DOJ very strongly prefers to do its work without the benefit of observation by — or criticism from — the people it purports to serve.

In the current matter, the DOJ is taking a very wide view of attorney-client privilege in order to shield its workings from — all of us. Though sometimes necessary, governmental secrecy is always dangerous, and when secrecy is deployed for transparently obvious purposes of institutional self-interest, it has a powerful corrosive effect.

If the judges have doubts about the DOJ’s honesty in these high affairs of state, how can the rest of us fail to share them in some small measure — especially when the DOJ refuses to produce the relevant evidence?


The right thing to do is to make government records generally available to the public, subject to certain narrowly tailored — and time-limited — exceptions. But what Washington does is, in effect, the dead opposite, maximizing secrecy and doling out a bit of a memo here and there, to mollify the public — or at least to mollify a federal judge or two.

But don’t expect a transparency push from this administration — Joe Biden has been swimming in these murky waters since the days of disco and has never shown any meaningful interest in opening up Washington.

What does the Biden administration think about DOJ secrecy? The same thing the Trump administration did.


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