Former Attorney General Bill Barr and former President Donald Trump
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The Justice Department released a once-secret memo arguing against charging Trump with obstruction.
The memo was publicized after a federal appeals court panel unanimously ruled for its release.
The memo urged DOJ to “reach a judgment” on whether Trump obstructed the Russia investigation.
The Justice Department on Wednesday released a once-secret 2019 memo that recommended against charging then-President Donald Trump with obstruction of justice in connection with the special counsel Robert Mueller’s investigation of Russia’s interference in the 2016 election.
The public release of the nine-page document came in response to a court order and punctuated a years-long court fight in which a watchdog group, Citizens for Responsibility and Ethics in Washington, pressed for a copy of the official Justice Department guidance underlying the decision not to charge Trump with obstruction.
A federal appeals court panel ordered the memo’s release last week, siding with a trial judge who had previously ruled that the Justice Department should make the document public.
The three-judge panel of the US Court of Appeals for the DC Circuit, in a unanimous decision, rejected the Justice Department’s arguments that the memo was protected from public release by the so-called deliberative process privilege, which shields details about government decisionmaking from public disclosure.
Steven Engel, a top official at the Office of Legal Counsel, and Edward O’Callaghan, the principal associate deputy attorney general, wrote in the memo that “we conclude that the evidence described in Volume II of the [Mueller] Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes.”
The memo went on to say the the special counsel’s report did not identify actions on Trump’s part that, in the OLC’s view, “constituted obstructive acts, done with a nexus to a pending proceeding, with the corrupt intent necessary to warrant prosecution” for obstruction of justice.
In urging Barr not to prosecute Trump for obstruction, the OLC memo said that “there is no precedent for an obstruction case on similar facts.”
“Of course, any investigation concerning the President would be exceptional, but the President is hardly the only public official who could be subject to investigation,” the memo said.
It added that Mueller’s findings in the obstruction probe were both “novel” and “unusual” because, in the OLC’s view, the special counsel’s team did not find “sufficient” evidence to charge anyone associated with the Trump campaign with conspiring with the Russian government to interfere in the 2016 election.
“Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving” Trump “toward which any obstruction or attempted obstruction by the President was directed,” the memo said.
Mueller’s team put out a 448-page report summing up its findings in the years-long investigation into Russia’s election interference. It laid out 11 instances in which Trump potentially obstructed justice in the course of the inquiry. But the special counsel declined to make a “traditional prosecutorial judgment,” citing a 1973 Justice Department policy against indicting a sitting president.
When Barr held a news conference shortly before a lightly redacted version of Mueller’s report was released in 2019, he told reporters that the special counsel’s decision was not influenced by the longstanding department policy. He said that in fact, Mueller’s determination — or lack thereof — was prompted by the inconclusive nature of the evidence.
But in his report, Mueller did not cite the nature of, or lack of, evidence as a reason he did not come to a decision on obstruction. He did, however, cite 1973 against charging a sitting president.
Moreover, the special counsel’s team said (emphasis ours) that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” The team continued: “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”