The Honorable Michael E. Horowitz
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Inspector General Horowitz:
The Project On Government Oversight (POGO) urges you to investigate whether four lawyers for the Department of Justice (DOJ) committed perjury or other crimes to conceal the role that DOJ’s Office of Legal Counsel (OLC) played in helping former Attorney General William Barr sell lies to the public about Special Counsel Robert Mueller’s report.
POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
In a scorching May 3, 2021, opinion, U.S. District Judge Amy Berman Jackson reprimanded DOJ for misleading her about the contents of a secret OLC memorandum at issue in a Freedom of Information Act case. Filings in the case by four DOJ lawyers—Paul Colborn, Vanessa Brinkmann, Elizabeth Shapiro, and Julie Straus Harris—created the false impression that OLC wrote its memorandum to help Barr decide whether to prosecute then-President Donald Trump. But Judge Jackson discovered that Barr never considered prosecuting Trump. “What the writers [of OLC’s memorandum] were actually discussing,” she wrote, “was how to neutralize the impact of the [Mueller] Report in the court of public opinion.”
Judge Jackson’s opinion describes representations these lawyers made in terms that would not be a credit to any lawyer, much less supervisors and a senior trial lawyer in DOJ’s headquarters:
- “bad faith”;
- “lack of candor”;
- “disingenuous to this court”;
- “the omission … served to obscure”;
- “misleading and incomplete explanations”;
- “so inconsistent with evidence in the record, they are not worthy of credence”;
- “a strategic decision to pretend as if the first portion of the memorandum was not there”;
- “redactions and incomplete explanations obfuscate the true purpose of the memorandum”
- “serious questions about how the Department of Justice could make this series of representations to a court”;
- “while [the plaintiffs in this case] had never laid eyes on the document, its summary was considerably more accurate than the one supplied by the Department’s declarants”; and
- “The flourish added in the government’s pleading that did not come from either declaration … seems especially unhelpful since there was no prosecutorial decision on the table.”
These shocking findings cry out for those responsible to be fired and prosecuted, unless they can offer a defense presently unknown to the public. Though DOJ’s litigators deny that they intended to mislead the judge when they claimed Barr made a “prosecution decision,” they now admit he never considered prosecuting Trump. It is imperative that you uncover the truth behind the apparent conspiracy to suggest otherwise and its full reach through DOJ’s ranks.
An investigation is needed to ascertain if the conduct at issue violated any of the criminal laws on perjury, false declarations, subornation of perjury, obstruction of justice, and conspiracy. The investigation should be conducted by your office and not DOJ’s notoriously lax Office of Professional Responsibility, which may lack objectivity in this matter. Your office has jurisdiction to investigate any potential criminal liability of DOJ lawyers and is best equipped for the job.
Enclosed is a detailed discussion of the facts and law, with citations to sources supporting the statements we make in both this cover letter and the enclosure.1 We respectfully request that you consider this discussion carefully and initiate an investigation. Having lied so brazenly and for so long, DOJ has shattered its credibility and undermined the rule of law. The only hope for restoring public faith in DOJ is to hold those responsible accountable.
If, as Judge Jackson appears to have found is the case, these four lawyers misled a federal court, they have done incalculable harm to the public’s trust in government. It would mean senior officials in the nation’s highest law enforcement agency concealed a matter of national concern relating directly to the integrity of the office of the president. If it turns out that they committed crimes in the process of doing so, they will have magnified the harm to the department’s already damaged reputation and compounded the effect of Barr’s lies to the American people.
Walter M. Shaub, Jr.
Senior Ethics Fellow
Enclosure: Discussion for The Honorable Michael Horowitz, Inspector General, U.S. Department of Justice
In a blistering rebuke of the Department of Justice (DOJ), Judge Amy Berman Jackson issued an opinion on May 3, 2021, that laid bare a scheme of deception it perpetrated against the American people.2 At the heart of the scheme was a claim that former Attorney General William Barr reviewed the report of Special Counsel Robert Muller III and, with the assistance of DOJ’s Office of Legal Counsel (OLC), made a decision not to prosecute then-President Donald Trump for obstruction of Justice.3 The matter came before Judge Jackson when a nonprofit watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), sued under the Freedom of Information Act (FOIA) for, among other things, a copy of a memorandum that OLC created for Barr, ostensibly to assist him in making a prosecutorial decision as to Trump.4
In support of DOJ’s assertion of a FOIA exemption to justify withholding the document, four DOJ lawyers tried to persuade the court that OLC created the memorandum to provide Barr with legal advice that he needed for a prosecutorial decision regarding Trump.5 But Judge Jackson found 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 that the OLC memorandum did not contain legal advice.6 [Emphasis in original.] She emphasized that the memorandum itself made these facts clear, which makes it hard to believe the four DOJ lawyers could have believed their representations to the court were true.7
The following discussion supplies factual background and analysis, identifies criminal laws potentially implicated, and explains why your office, rather than DOJ’s Office of Professional Responsibility (OPR), should conduct the investigation. This discussion also supplies citations to sources supporting the factual statements we make both here and in the cover letter, which incorporates this discussion by reference.
I. Factual Background
Mueller provided Barr with the report of his multiyear investigation on Friday, March 22, 2019.8 By the afternoon on Sunday, March 24, 2019, Barr sent a letter to Congress summarizing the nearly 400-page, heavily footnoted report in four pages and announced that Mueller’s findings did not support prosecution of Trump for obstruction of justice.9 Barr further claimed in the letter that he consulted OLC in making this determination, and he reiterated that claim in a public statement on April 18, 2019, and again before Congress on May 1, 2019.10
This claim prompted Anne Weisman, then-chief FOIA counsel for CREW, to file a Freedom of Information Act (FOIA) request for records of Barr’s consultations with OLC.11 Among other records at issue in the request was an OLC memorandum ostensibly analyzing whether Mueller’s findings would support Trump’s prosecution for obstruction of justice.12 The memorandum was dated March 24, 2019, the same date that Barr sent his letter to Congress.13
DOJ provided CREW a copy of the memorandum in which it had redacted all but a small amount of material at the beginning and end, claiming FOIA Exemption 5 granted it a “predecisional” deliberative process privilege and an attorney-client product privilege as to the redacted material.14 CREW filed suit challenging the redaction of this memorandum and other aspects of DOJ’s response.15 Over the course of the litigation, the issues with respect to the deliberative process privilege narrowed to a question of whether OLC had prepared the memorandum prior to Barr making a decision not to prosecute Trump and whether it did so to assist him in making that decision.16 As for the attorney-client privilege, the issues narrowed to a question of whether OLC’s memorandum supplied Barr with legal advice in connection with a decision he was engaged in making.17
The two litigators representing DOJ, Federal Programs Branch Deputy Director Elizabeth Shapiro and Senior Trial Counsel Julie Straus Harris, argued that OLC was assisting Barr by supplying legal advice in anticipation of a decision on whether to prosecute Trump.18 In support of their arguments, they filed declarations from two senior career government lawyers, Paul Colborn and Vanessa Brinkmann, who claimed to have personal knowledge of the documents they discussed, including the OLC memorandum.19 Assigned to OLC, Colborn is a member of the Senior Executive Service, whose high-level members serve in “key positions just below the top Presidential appointees” according to the U.S. Office of Personnel Management.20 Brinkmann holds a supervisory level position in DOJ’s Office of Information Policy.21 Each of their declarations ended with the following affirmation: “I declare under penalty of perjury that the foregoing is true and correct.”22
Colborn and Brinkmann claimed that the redacted material in the memorandum consisted of legal advice to assist Barr in making a decision as to whether to prosecute Trump and that OLC provided its advice before Barr made a decision.23 Thereafter, Colborn filed a second declaration admitting that OLC did not provide the final memorandum to Barr until about two hours after Barr had sent the letter to Congress announcing that Trump would not be prosecuted; however, Colborn contended that OLC provided the advice contained in the memorandum prior to Barr sending the letter.24
In its pleadings, CREW argued that both of DOJ’s justifications for the redaction failed to satisfy the legal requirements of FOIA Exemption 5 because Barr was not engaged in making any decision at all with respect to prosecuting Trump.25 In response, Shapiro and Harris accused CREW of offering mere “speculation”:
Nor does Plaintiff offer anything other than its own speculation that the Attorney General was not in the midst of a prosecutorial decision-making process. Plaintiff’s speculation is insufficient to overcome the deference due to the agency’s declarations and, accordingly, summary judgment must be entered for DOJ.26
Shapiro and Harris argued that in camera review of the document was unwarranted, citing the deference owed to declarations submitted by government officials.27 Judge Jackson ultimately agreed that deference was owed in the absence of contrary evidence in the record or bad faith on the part of the declarants, adding, “But here, we have both.”28
After reading the OLC memorandum, Judge Jackson observed sharply that Shapiro and Harris had “strongly resisted” letting her see it.29 Her review of the document, she wrote in her May 3, 2021, opinion, “raise[d] serious questions about how the Department of Justice could make [the] series of representations to a court” that Shapiro and Harris chose to make in support of their motion for summary judgment.30 They had argued that OLC provided Barr with legal advice “prior to” his making a “final decision” on whether to prosecute Trump for the purpose of helping him with the decision, which was “left to the purview of the Attorney General.”31
Crucially, Judge Jackson explained that “the memorandum itself” contradicted these claims and the declarations executed by Colborn and Brinkmann.32 She added that, “while CREW had never laid eyes on the document, its summary was considerably more accurate than the one supplied by the Department’s declarants.”33
DOJ’s defenses collapsed under the weight of the central determination in Judge Jackson’s May 3 opinion regarding the period when OLC drafted its memorandum: “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.”34 [Emphasis in original.] The assertion that this memorandum was “predecisional” failed “because the materials in the record, including the memorandum itself, contradict the FOIA declarants’ assertions that the decision-making process they have identified was in fact underway.”35 As for the claim of attorney-client privilege, “given the fact that the review of the document in camera reveals that there was no decision actually being made as to whether the then-President should be prosecuted, … the Court is not persuaded that the agency has met its burden to demonstrate that the memorandum was transmitted for the purpose of providing legal advice, as opposed to the strategic and policy advice that falls outside the scope of the privilege.”36 Confirming that Barr was not waiting for anything from OLC before notifying Congress that Trump would not be prosecuted, both OLC’s memorandum and Barr’s letter to Congress were “being written by the very same people at the very same time.”37
For these reasons, Judge Jackson ordered DOJ to release the OLC memorandum to CREW.38 On May 24, 2021, DOJ filed a motion for a stay pending appeal in which it admitted that its pleadings and declarations “could have been clearer” but insisted any confusion they caused was unintentional.39 DOJ claimed in the motion that its representatives never meant to suggest that Barr decided whether to prosecute Trump; rather, DOJ argued, they meant to indicate Barr decided whether Trump’s conduct could hypothetically warrant prosecution if DOJ’s interpretation of the Constitution did not preclude prosecutions of sitting presidents: “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.”40
II. Potentially Applicable Criminal Laws
The conduct of the four DOJ lawyers discussed above potentially implicates several criminal laws, the applicability of which will depend on what your investigation uncovers.
Two laws relate to the execution of declarations in connection with a trial. With slight variations in the applicable legal standard, the general perjury law, 18 U.S.C. § 1621(2), and the law on false declarations, 18 U.S.C. § 1623(a), impose criminal penalties on a declarant who intentionally makes a false statement regarding a material fact in a declaration that contains the affirmation prescribed in 28 U.S.C. § 1746 (“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.”).
Several other laws may apply in the case of litigators who file the declarations of other persons and make related representations in pleadings. Subornation of perjury is prohibited under 18 U.S.C. § 1622. Along the same lines, 18 U.S.C. § 1512(b) applies to anyone who, acting “knowingly … corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to … influence … the testimony of any person in an official proceeding.” Another statute, 18 U.S.C. § 1503(a), provides: “Whoever … corruptly … influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be [guilty of an offense].” Omnibus language in 18 U.S.C. § 1505 establishes a similar prohibition.
Finally, a conspiracy to commit any of these crimes would constitute a separate offense under 18 U.S.C. § 371.
Though her opinion often refers to the department instead of its lawyers and witnesses, Jackson describes representations made by Colborn, Brinkmann, Shapiro, and Harris in terms that would not be a credit to any lawyer, much less a member of the Senior Executive Service, two supervisory attorneys, and a senior trial lawyer serving in the headquarters of the highest law enforcement agency in the land:
- “bad faith”41
- “lack of candor”42
- “disingenuous to this court”43
- “the omission … served to obscure”44
- “misleading and incomplete explanations”45
- “redactions and incomplete explanations obfuscate the true purpose of the memorandum”46
- “made a strategic decision to pretend as if the first portion of the memorandum was not there”47
- “the affidavits are so inconsistent with evidence in the record, they are not worthy of credence”48
- “a subject that the agency omitted entirely from its description of the document or the justification for its withholding”49
- “while CREW had never laid eyes on the document, its summary was considerably more accurate than the one supplied by the Department’s declarants”50
- “raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment”51
- “The flourish added in the government’s pleading that did not come from either declaration … seems especially unhelpful since there was no prosecutorial decision on the table”52
At issue is the effort of these four lawyers to persuade a federal district court judge that Barr was engaged in making a “prosecution decision,” which was the basis for withholding the OLC memorandum.53 DOJ wrote: “Finally, the March 2019 Memorandum contains analysis about whether evidence supports initiating or declining a prosecution. Documents containing deliberations about whether to pursue prosecution are generally protected by the deliberative process privilege.”54 Judge Jackson has rendered a verdict on the question of whether Barr was engaged in deliberations about whether to pursue prosecution:
The redacted portions of Section I [of OLC’s memorandum] reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals 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. The omission of any reference to Section I in the agency declarations, coupled with the agency’s redaction of critical caveats from what it did disclose, served to obscure the true purpose of the memorandum. Thus, the Court’s in camera review leads to the conclusion that the agency has fallen far short of meeting its burden to show that the memorandum was “prepared in order to assist an agency decisionmaker in arriving at his decision.”55 [Bolding added; italics in original.]
This damning court finding makes it hard to imagine any explanation that Colborn, Brinkmann, Shapiro, or Harris could offer to show their conduct was innocent. The biggest obstacle they will face is Judge Jackson’s explanation in the above-quoted excerpt that the memorandum itself made clear there was no decision under consideration. An unredacted version of her May 3 opinion, released on May 25, 2021, also reveals her finding that DOJ concealed the true nature of OLC’s memorandum:
The unredacted document begins with the disclosed portion of the sentence that states, “[a]t your request, we have evaluated Volume II of the Special Counsel’s Report … to determine whether the facts recited therein would support initiating or declining the prosecution of the President for obstruction of justice …” But the sentence went on to specify that the evaluation would be “without regard to any constitutional barrier to such a prosecution under Article II of the U.S. Constitution.”56 [Ellipses in original.]
And, while the introduction to the memo does offer the opinion “that the evidence described in Volume II of the Report, is not, in our judgment, sufficient …,” the conclusion that follows is not simply: “we would recommend … that you decline to commence such a prosecution.” Instead, the authors stated, “were there no constitutional barrier, we would recommend … that you decline to commence such a prosecution.” 57 [Emphasis and ellipses in original.]
“In other words,” she explained,
the analysis set forth in the memo was expressly understood to be entirely hypothetical, and the redactions deliberately obscured this fundamental aspect of the exercise. Moreover, the declarants did not choose to bring that language, which contradicts the assertion that the Attorney General was in fact wrestling with a difficult decision about a high-profile criminal prosecution, to the Court’s attention.58
Shapiro and Harris may find themselves especially haunted by their insistence that CREW was engaged in “speculation” when it argued that no decision was under consideration.59 In retrospect, their repeated use of the word “speculation”—eight times in the body of one pleading, nine including the table of contents—makes it seem as though they were taunting CREW from a position of knowledge about the true contents of the memorandum.60 That they “strongly resisted,” as the judge put it, to an in camera review of the OLC memorandum smacks of consciousness of guilt.61 Perhaps they have a defense as yet unknown to the public—if so, this possibility is all the more cause for an investigation to uncover the truth.
Speculation or not, CREW was correct—so correct, in fact, that Judge Jackson said CREW’s description of the OLC memorandum, without ever having “laid eyes” on it, was “considerably more accurate” than the description DOJ’s lawyers provided to the court.62 That is an entirely shocking finding that begs for investigation of this sordid matter. Judge Jackson’s May 3 opinion is a damning document.
Following the issuance of that opinion, DOJ filed a motion for a partial stay of her order to release the OLC memorandum while it pursued an appeal.63 The motion made an audacious claim that DOJ never meant to suggest that Barr considered whether to prosecute Trump.64 This assertion is hard to reconcile with a prior pleading in which DOJ challenged CREW’s insistence that Barr never considered prosecuting Trump:
Plaintiff has only its misinterpretation of the DOJ special counsel regulations and its own irrelevant speculation, unsupported by admissible evidence, that “the Attorney General was not seeking legal advice from OLC in order to make a prosecution decision.” … This cannot overcome the deference to the agency’s affidavits.65
CREW’s brief, which DOJ cited in the above-quoted excerpt, clearly framed the central issue in the case as a question of whether OLC prepared its memorandum to assist Barr in making a prosecutorial decision: “DOJ’s contrary arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice.”66 In her May 3 opinion, Judge Jackson agreed with CREW’s framing of the issue.67
Judge Jackson’s opinion properly characterized the first part of OLC’s memorandum as providing “public relations” advice on whether Barr should offer the public a hypothetical analysis as to whether DOJ could have prosecuted Trump if its policy allowed the prosecution of a sitting president.68 DOJ’s motion for a partial stay of her order to release the memorandum argued that any confusion created by its representatives was inadvertent and that the decision before Barr was, indeed, whether to offer his views on Mueller’s report to the public.69 To square its new framing of the issue in the case with its prior suggestion that Barr had been engaged in making a “prosecution decision,” DOJ now argued that this public relations decision was “‘prosecutorial’ in nature.”70 This amazing statement may be the most disingenuous of all the claims DOJ has made to date in the litigation with CREW.
In the end, we remain unpersuaded by DOJ’s claim that it created confusion only unintentionally. There’s no getting around the following language in one of its earlier pleadings: “Plaintiff’s supposition that [OLC’s memorandum] ‘was not part of a deliberation about whether or not to prosecute the President’ cannot overcome the deference [owed] to the agency’s affidavits.”71 [Emphasis added.] This language can only be read to mean Barr considered whether or not to prosecute the former president.
DOJ asserted in its motion for a partial stay that “the government had no reason to suggest” that Barr was considering whether to prosecute Trump.72 But Judge Jackson revealed the reason in her May 3 opinion. “What the writers [of the OLC memorandum] were actually discussing,” she wrote, “was how to neutralize the impact of the [Mueller] Report in the court of public opinion.”73 In the litigation with CREW, DOJ’s filings prior to Judge Jackson’s May 3 opinion concealed OLC’s role in this propaganda campaign by suggesting, instead, that OLC was helping Barr decide whether to prosecute Trump. Barr is gone, OLC is not—neither are Colborn, Brinkmann, Shapiro, or Harris. DOJ appears to have tried unsuccessfully to cover up OLC’s complicity in Barr’s deceit, and now DOJ appears to be trying to shield these four lawyers from accountability.
IV. The Inspector General’s Authority
POGO believes you have the authority to investigate this matter. A provision of the Inspector General Act of 1978, as amended, requires you to refer allegations to DOJ’s Office of Professional Responsibility if they “relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice.”74 Not everything DOJ’s lawyers do, however, falls within OPR’s jurisdiction. OPR has acknowledged that it “ordinarily will refer” to your office “allegations against a Department attorney that are unrelated to the attorney’s authority to investigate, litigate, or provide legal advice.”75 Departmental regulations compel OPR to do so.76
The question of whether these four attorneys committed crimes is a matter squarely within your investigative jurisdiction. Though Shapiro and Harris were exercising the authority of an attorney as litigators before Judge Jackson, they acted outside the scope of that authority if they criminally obstructed an official proceeding, corruptly influenced the testimony of Colborn and Brinkmann, suborned perjury, or participated in a conspiracy to commit any of these crimes. That makes their conduct a matter for the inspector general, not OPR.
Even if a dispute were to arise as to your jurisdiction to investigate these lawyers, POGO would urge the deputy attorney general to exercise authority granted by DOJ’s regulations to designate your office as the proper body to investigate this matter.77 In considering the exercise of this authority, the deputy attorney general should bear in mind that members of Congress share our concerns about OPR and are considering legislation to give the inspector general concurrent jurisdiction in all such cases. OPR’s reputation for lax enforcement against DOJ’s lawyers makes it a poor choice to investigate a cover-up of lies told by a former attorney general.78 In fact, the lack of accountability to date for Barr and other top officials suggests OPR has shielded them from accountability in the past.79 If Colborn, Brinkmann, Shapiro, and Harris committed the conduct Judge Jackson appears to have determined they committed, they may well have done so to protect secrets OPR has already buried.
The deputy attorney general should bear in mind that the conduct at issue in this case did not occur in isolation. Judge Jackson’s opinion echoed the sentiments of U.S. District Judge Reggie Walton, a George W. Bush appointee, who criticized Barr’s fraudulent summary of the Mueller investigation.80 Earlier this year, DOJ was forced to drop all charges against a criminal defendant, despite having won a conviction, after its lawyers admitted to lying to the defendant’s lawyers.81 Also this year, a federal judge in Kansas threw out a conviction after a DOJ prosecutor was caught interfering with witness testimony.82 Late last year, the department faced questions about altered documents relating to an attempted withdrawal of the prosecution of former National Security Adviser Michael Flynn.83 A lawyer in the FBI, a component of DOJ, was also prosecuted for having lied in connection with a Foreign Intelligence Surveillance Act (FISA) application for a warrant to wiretap former Trump campaign associate Carter Page—and your own work has revealed that the Page case may be far from an isolated incident with regard to FISA warrants.84
For these reasons, we believe you have authority to investigate these four lawyers and, if a dispute arises, the deputy attorney general should use the authority DOJ’s regulations grant to resolve the dispute in your favor. In what POGO has revealed to be an environment of rampant, unaddressed misconduct by DOJ lawyers, only an investigation by the Office of the Inspector General will afford the American people an assurance of objectivity.85
It is imperative that your office investigate Paul Colborn, Vanessa Brinkmann, Elizabeth Shapiro, and Julie Straus Harris. If, as Judge Jackson appears to have found is the case, they lied to a federal court, they have done incalculable harm to the public’s trust in government. It would mean senior officials in the highest law enforcement agency in the land concealed a matter of urgent national concern relating directly to the integrity of the office of the president. If it turns out that they committed crimes in the process, they will have magnified the harm to the department’s already damaged reputation and compounded the effect of former Attorney General Barr’s lies to the American people.