Unredacted Barr memo details DOJ rationale for not charging Trump
By The Citizen on August 24, 2022
The Department of Justice (DOJ) on Wednesday released an unredacted version of a memo prepared for former Attorney General William Barr that he used to justify his decision to not indict then-President Trump after reviewing the Mueller report.
The memo was released following a suit from Citizens for Responsibility and Ethics in Washington (CREW), which sought to unveil the legal guidance Barr received from DOJ’s Office of Legal Counsel (OLC).
The suit spurred DOJ to release a redacted version of the memo in 2021 that fully blocked out six of the memo’s 10 pages.
The now fully unredacted memo details a Justice Department that cautioned against any prosecution of Trump stemming from special counsel Robert Mueller’s investigation into any coordination between his campaign and Russia as that country sought to interfere with U.S. elections.
The 2019 memo to Barr came just two days after Mueller released his more than 400-page report to DOJ, and was finalized just hours after Barr sent a letter to Congress saying he saw no grounds for a prosecution.
The OLC memo largely crafts an argument to decline prosecution for an attorney general who at that point was fiercely loyal to Trump.
It hangs much of its analysis on a line in the Mueller report indicating there was not sufficient evidence to charge anyone from the Trump campaign, or the president himself, with conspiring alongside members of the Russian government to interfere in the election.
“Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving the president toward which any obstruction or attempted obstruction was directed. It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding relating to a separate crime,” Steven Engle, head of OLC, and his deputy Edward O’Callaghan wrote in the memo.
It goes on to describe Trump’s “potentially obstructive conduct” as “an attempt to modify the process under which the special counsel investigation progressed.”
CREW President Noah Bookbinder called the memo “a breathtakingly generous view of the law and facts for Donald Trump.”
“It twists the facts and the law to benefit Trump and does not comport with a serious reading of the law of obstruction of justice or the facts as found by Special Counsel Mueller,” Bookbinder wrote on Twitter.
“The memo is premised in large part on the argument that there was no underlying criminal conduct and that it’s hard to charge obstruction without an underlying crime. Of course that’s not what Mueller actually found. … Mueller found there was not sufficient evidence to charge Trump and others with conspiring with Russia. He didn’t find no crime, just not enough evidence for charges,” he added.
The 448-page Mueller report, which was released in April 2019 almost a month after Barr’s letter to Congress, examined multiple episodes of possible obstruction of justice, including Trump’s firing of then-FBI director James Comey and his efforts to pressure then-Attorney General Jeff Sessions to pull back on his decision to recuse himself from the Russia investigation.
Ultimately, Mueller’s team wrote that they were unable to say definitively that Trump did not obstruct justice.
“While this report does not conclude that the President committed a crime, it also does not exonerate him,” the report stated.
Attorney General Merrick Garland has faced pressure from some legal analysts and others on the left to revisit the obstruction of justice case against Trump.
The unredacted memo’s release comes as a result of a ruling last week by the U.S. Court of Appeals for the D.C. Circuit in the long-running lawsuit initiated by CREW in May 2019. The ruling, by a unanimous three-judge appellate court panel, affirmed a federal judge’s conclusion that the DOJ had improperly redacted the memorandum, and ordered its full disclosure.
The legal development amounted to a sharp rebuke of the department’s claim that the memo should be shielded under an exemption to the Freedom of Information Act that protects internal government deliberations.
The appeals court ruling affirmed a finding by the lower court that the memo did not reflect a deliberative process in part because Barr had already decided against charging Trump before the memo was finalized.
“Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege,” Chief Judge Sri Srinivasan wrote for the panel.