By Andrew A. Servais
Despite the unprecedented events occurring since, many of us still remember March 2019 when it was made public that “Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States, William P. Barr.” Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of Just., WL 1749763, at *1 (D.D.C. May 3, 2021) (“CREW”).
Litigation surrounding, Willliam Barr’s failure to release the report for several weeks after continues and has highlighted the consequences for attorneys making misstatements whether in or outside of a courtroom. U.S. District Judge Amy Berman Jackson (District of Columbia) recently ordered the release of a March 24, 2019 Office of Legal Counsel (“OLC”) memo supporting former Attorney General William Barr’s decision not to pursue obstruction of justice against Donald Trump following issuance of the Mueller Report. The March 24 memo to Attorney General Barr had not been produced to a government transparency group, CREW, under the Freedom of Information Act on several bases including the attorney client privilege.
The District Court found no privilege existed because the evidence confirmed “that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given” and thus the memo was not “transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege.” CREW, 2021 WL 1749763, at *15 (emphasis added); *16 (“the record reflects that the priority was to get the letter completed first,…one simply cannot credit the declarant’s statement that the Attorney General made the ‘decision’ he announced based on the advice the memo contains.”) This is the law in California. Behunin v. Superior Court, 9 Cal.App.5th 833, 849-850 (2017).
It is obviously incumbent upon every attorney to avoid a court order rejecting the assertion of the attorney client privilege to a memorandum. But, the District Court found the entire basis for asserting attorney client privilege was false based on the testimony of DOJ attorneys and public statements of Attorney General Barr.
The District Court stated that while Mueller provided the report to Barr on March 22, “the Attorney General did not share it with anyone else.” CREW, 2021 WL 1749763, at *1. Rather, two days after receiving the report, Attorney General Barr sent a four-page letter to Congress saying that Mr. Trump would not be charged with obstructing justice and asserting Special Counsel Mueller “‘did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction,’ and it went on to announce the Attorney General’s own opinion that ‘the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.’” Id. (emphasis added.)
With Attorney General Barr’s “summary” letter public, Mr. Trump “then declared himself to have been fully exonerated.” Id.
Three day later, on March 27, the District Court stated “the customarily taciturn Special Counsel was moved to pen an extraordinary public rebuke on March 27” calling for immediate release of the Mueller Report and that there “is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.” Id. at *2.
No portion of the actual March 22 report was released to the public until April 18, 2019. See, Attorney General William P. Barr Delivers Remarks on the Release of the Report on the Investigation into Russian Interference in the 2016 Presidential Election, https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-release-report-investigation-russian
The statements made by Attorney General Barr before the initial release of the Mueller report, would eventually lead to the District Court finding there was no privilege to withhold the March 24 memo because it “is time for the public to see that, too.” CREW, 2021 WL 1749763, at *2.
The District Court noted the problematic pattern of misstatements stating “[a]nother court in this district has expressed ‘grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report’” in referencing the March 2020 decision which found “a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report.” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just. (“EPIC”), 442 F.Supp.3d 37, 48-49 (D.D.C. 2020); CREW, 2021 WL 1749763, at *2 (“The district court in the EPIC case undertook a close comparison of the Attorney General’s March 24 pronouncements and the redacted version of the Special Counsel’s Report that had by then been released, and the process left him uneasy.”)
In EPIC, the District Court could not “reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report,” adding “These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility.” EPIC, 442 F.Supp.3d at 51.
The District Court cited the statements made in other litigation and statements made to the public and Congress regarding the eventual release of the Mueller Report in finding the DOJ affidavits “are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege.” CREW, 2021 WL 1749763, at *13.
The high-profile decision is a good reminder to California attorneys who continue to have exacting obligations regarding their representations, whether or not before a court and whether or not acting as an attorney, which need to be followed to protect not only their own interests, but those of the client. See, e.g., Bus. & Prof. Code § 6106 (“commission of any act involving moral turpitude, dishonesty, or corruption, whether the act is committed in the course of his relations as an attorney or otherwise,” constitutes “a cause for disbarment and suspension.”); California Rules of Professional Conduct, Rules 4.1, 8.4.