The Justice Department released a heavily redacted memo that explained the rationale against charging President Trump with obstruction of justice based on special counsel Robert Mueller’s Russia investigation.
Much of the document, sent to Attorney General William Barr on March 24, 2019, remains hidden from public view, including the actual legal reasoning for recommending that the Justice Department decline to prosecute Trump.
The agency said a nine-page document was supplied by the Office of Legal Counsel in response to a Freedom of Information Act request by the left-leaning watchdog Citizens for Responsibility and Ethics in Washington, which is fighting in court to obtain the OLC opinion. But the Office of Information Policy determined only two pages were “appropriate” for release and with redactions that relate to “certain” interagency and intra-agency communications “protected by civil discovery privileges.”
The other seven pages, the Justice Department wrote to CREW on June 17, were omitted for the same “Exemption 5” privileges of the FOIA process.
“For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes,” wrote Assistant Attorney General for the OLC Steven Engel and Edward O’Callaghan, another top DOJ official who oversaw the Russia investigation, to Barr.
After a redacted section, they wrote, “Accordingly, [redacted] we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.”
Barr, who signed off on the memo, wrote to Congress that same day. Barr said in his letter regarding Mueller, whose report had not yet been released, that he and then-Deputy Attorney General Rod Rosenstein “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the president committed an obstruction-of-justice offense.”
The attorney general stressed that “our determination” on obstruction of justice “was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
Barr said in March 2019 that “to obtain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.” He said Trump’s actions, “many of which took place in public view,” did not meet those requirements.
Mueller’s report, released in mid-April of that year, noted his investigation “identified numerous links between the Russian government and the Trump campaign” but “did not establish that members of the Trump campaign conspired or coordinated with the Russian government.” On the issue of obstruction of justice, Mueller said he “determined not to apply an approach that could potentially result in a judgment that the president committed crimes” but that “while this report does not conclude that the president committed a crime, it also does not exonerate him.” Mueller laid out 10 possible instances of obstruction, including a desire by Trump to fire Mueller, but did not reach any conclusions on them.
Following a May 2019 news conference by Mueller, the Justice Department and the Office of Special Counsel put on a united front to clarify the issue of whether Trump would have been charged if not for the Office of Legal Counsel opinion stopping sitting presidents from being indicted.
“The attorney general has previously stated that the special counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the president obstructed justice. The special counsel’s report and his statement today made clear that the office concluded it would not reach a determination — one way or the other — about whether the president committed a crime. There is no conflict between these statements,” the joint statement said.
Rosenstein, who left his post in May 2019 shortly after Mueller’s report was made public, testified before the Senate this month about the determination he had reached with Barr that Trump had not obstructed justice.
“I do not believe that the evidence collected by the special counsel warrants prosecution,” Rosenstein said in June. “I do not believe that the president committed a crime that warrants prosecution. … We determined that that case does not merit prosecution.”
Barr is under heavy scrutiny after Trump fired Geoffrey Berman, the U.S. attorney for the Southern District of New York, whose office has conducted investigations into associates of the president.
House Speaker Nancy Pelosi has tamped down expectations for an impeachment investigation into Barr, but the heat is rising after DOJ veterans accused the attorney general of intervening in criminal and antitrust cases to protect Trump. Barr has agreed to testify before the Democratic-led House Judiciary Committee on July 28.
