These shenanigans came after Mr. Barr was revealed to have written a memo for Mr. Trump while a private citizen, a long document that concluded that, yes, you guessed it, the president was not guilty of obstruction of justice.
The Justice Department is the one cabinet agency that has a value in its name — “justice.” Its iconography — a blindfolded Lady Justice — underscores the idea that everyone has to play by the same rules. Mr. Barr appears to have desecrated that cardinal principle. The public has a right to know what he and his Justice Department lawyers did and why they did it.
We already had one by-the-book official, the special counsel, Robert Mueller, try to apply regular principles to a deeply abnormal presidency, and we witnessed the result: a distorted impeachment and the nullification of potential criminal charges.
The problem for the new Justice Department is: What does it do now? Should it depart from ordinary rules because the last administration did so? If it doesn’t appeal Judge Jackson’s decision, isn’t the department allowing a precedent to be set that private litigants can ask for and get all sorts of prosecutorial materials?
No. Good surgeons don’t always operate, and good appeals lawyers don’t always appeal. Here, Justice Department lawyers could have safeguarded the department’s interests by saying they disagreed with the decision, but because it was a trial court decision, it was not precedential for other cases and not appropriate to appeal.
And the department then could have voluntarily released the memo without conceding that it was required by the Freedom of Information Act. When the Justice Department doesn’t appeal a decision, that doesn’t mean it agrees with it. Lawyers there decide not to appeal all the time for many reasons. In short, there were better solutions here that would have walked the tightrope between the public’s need to know and the Justice Department’s general need to protect prosecutorial interests.
In the end, there must be a zone of confidential government decision-making and privacy. Good government depends on it. But that zone is a two-way street: It also depends on government officials who behave as if they deserve to be there. The Justice Department’s decision to appeal Judge Jackson’s order treated this case like any other garden-variety case.
Neal K. Katyal is a professor at Georgetown Law School, was an acting solicitor general in the Obama administration and wrote, with Sam Koppelman, “Impeach: The Case Against Donald Trump.”
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