By order of the DC Circuit Court of Appeals, the Justice Department on Wednesday released a 2019 memo used by former Attorney General William Barr to justify his decision not to prosecute then-President Donald Trump for obstruction of justice as as a result of Robert Mueller’s Russia investigation.
The department initially released an edited version of the memo in May 2021, which arose out of a Freedom of Information Act lawsuit filed by the Washington (CREW) watchdog group Citizens for Responsibility and Ethics. That version completely redacted more than six of the memo’s ten pages.
On Friday, however, a panel of judges on the DC Circuit ordered the release of the full memo, confirming a district court decision finding that Barr and other DOJ officials were not forthright in their statements about the role the memo played. in their decision not to sue Trump.
DOJ officials previously told the court that the memo should be hidden from the public because it involved internal deliberations by the department and the advice to Barr about whether Trump should be prosecuted.
But a district judge ruled that Barr was never involved in such a trial and had already decided not to charge Trump.
The full memo released Wednesday outlines the rationale given to Barr by Steven Engel, the former head of DOJ’s Office of Legal Counsel, and Ed O’Callaghan, the then chief assistant deputy attorney general.
Both attorneys wrote that former Special Counsel Mueller’s report on his Trump and Russia investigation “does not identify actions that, in our view, constituted obstructive acts, done in connection with pending proceedings, with the corrupt intent necessary to prosecute.” under obstruction to justify “rule of law.”
Engel and O’Callaghan wrote that their determination was met regardless of whether Trump was already immune from prosecution because of his status as incumbent president.
While Mueller’s report painstakingly documented Trump’s possible obstructive acts before and after his appointment as special counsel, Mueller said he declined to make a decision about whether Trump had committed a crime based on DOJ policies and “principles of fairness.” “.
In both a public statement and hours of Congressional testimony in 2019, Mueller also directly refuted Trump’s claims that his report “exonerated” Trump.
“That’s not what the report said,” Mueller said in his testimony.
In their memo, Engel and O’Callaghan gave multiple justifications for dismissing a Trump prosecution for actions stemming from the Mueller report, which outlined 10 possible obstruction of justice cases identified by the special counsel’s team. examined.
They wrote that the cases in Mueller’s report were not comparable to “any reported case” the DOJ had previously sued under the statute of obstruction of justice and described Mueller’s obstruction theory as “new” and “unusual” because of the conclusion that he reached in the first volume of his report — that the evidence developed “was not sufficient to charge that a member of the Trump campaign conspired or coordinated with a representative of the Russian government to interfere in the 2016 election.” .”
“It is rare for federal prosecutors to initiate an obstruction charge that does not itself arise from a proceeding related to a separate crime,” the memo states.
Engel and O’Callaghan wrote that “much of “Trump’s conduct in the report” instead amounted to attempts to alter the process through which the special counsel’s investigation progressed, rather than attempts to tamper with evidence or intentionally …the ability of special counsel to obtain and develop evidence.”
Their memo also goes into some detail to refute certain lines of inquiry that Mueller’s team pursued in investigating Trump’s potentially obstructive actions.
Engel and O’Callaghan wrote that they did not believe Trump’s actions around firing FBI Director James Comey were an impediment, as his behavior “could be explained legibly by his desire to tell the FBI director or others in the administration.” to let the public know that he was not under investigation.”
They also wrote that they believed Trump’s alleged attempts to drop charges against his former national security adviser Mike Flynn did not amount to criminal obstruction. According to them, Trump’s alleged statement to Comey that he would let it go “did not clearly direct any particular action in the Flynn investigation, and Comey did not respond at the time as if he had received a direct order from the president.”
The memo analyzed Trump’s actions after he learned of Mueller’s nomination and when he learned that his investigators had opened a separate line of inquiry into possible obstruction of justice.
“Most of the identified behaviors consist of apparently lawful actions that are part of the president’s constitutional responsibility to oversee the executive branch,” Engel and O’Callaghan wrote. “And there is substantial evidence that the president took these official actions not for an illegal purpose, but rather because he believed the investigation was politically motivated and undermined his administration’s attempts to rule.”
They also noted that despite Trump’s actions in instructing his counsel at the White House to fire Mueller at some point or ask a top aide to help Attorney General Jeff Sessions — Barr’s predecessor — limit Mueller’s investigation,” none of his requests to change oversight of the investigation have actually been carried out.”
“In any case, if the president really wanted to trigger those actions, he could have done it himself,” Engel and O’Callaghan wrote. “Of course it is true that an act may be an attempt or an attempt, even if it is unsuccessful. An intent to obstruct justice.”
However, Engel and O’Callaghan wrote that other acts by Trump, such as his comments regarding witnesses to the Mueller investigation — those who cooperated and those who remained silent — “imply more directly the concerns of the obstruction law.”
Still, they wrote, none of the cases “indicate that the president attempted to hide evidence of criminal conduct, nor is there sufficient evidence to prove beyond a reasonable doubt that he attempted to provide false evidence to investigators.”