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Those gimmicks came after it was revealed that Mr Barr, as a private individual, had written a memo for Mr Trump, a lengthy document that concluded that, yes, you guessed it, the president was not guilty of obstruction of justice.
The Justice Department is the only cabinet agency whose name has any value – “Justice”. His iconography – a Lady Justice blindfolded – underscores the idea that everyone must play by the same rules. Mr Barr appears to have profaned this cardinal principle. The public has a right to know what he and his Justice Department attorneys did and why they did it.
We already had one officer, Special Adviser, Robert Mueller, trying to apply regular principles to a deeply abnormal presidency, and we saw the result: a distorted impeachment and the removal of potential criminal charges.
The problem for the new Justice Department is: what does it do now? Should it deviate from the usual rules because the last government did? If Judge Jackson’s decision is not challenged, will the division not allow a precedent to be set for private litigation to be initiated and for all kinds of law enforcement material to be obtained?
No. Good surgeons don’t always operate, and good appeal lawyers don’t always appeal. Here, Justice Department attorneys could have defended the interests of the Ministry by saying they disagreed with the decision, but since it was a court decision, it was not overriding and unfit to appeal in other cases.
And the department could then have voluntarily published the memo without admitting that it is required under the Freedom of Information Act. If the Justice Department does not appeal a decision, it does not mean that it agrees with it. The lawyers there choose 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 for knowledge and the General Department of Justice’s need to protect the prosecution’s interests.
In the end there has to be a zone of confidential government decisions and privacy. Good government depends on it. But this zone is a one-way street: it also depends on government officials who act like they deserve to be there. The Justice Department’s decision to appeal Judge Jackson’s order treated this case like any other garden cultivar case.
It was not.
Neal K. Katyal is a professor at Georgetown Law School, was acting attorney general in the Obama administration and wrote with Sam Koppelman: “Impeach: The Case Against Donald Trump.”
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