DOJ releases memo advising Barr on not pursuing Trump obstruction charges

SEE IT: MUELLER PROSECUTOR FINDS ‘ASTOUNDING’ PASSAGE IN BARR MEMO ON TRUMP OBSTRUCTION

Citizens for Responsibility and Ethics in Washington, a watchdog group that sued for the release of the full document in a Freedom of Information Act case, claimed victory after the ruling late last week. “We won! We’re going to get the secret memo Barr used to undercut the Mueller Report and claim it was insufficient to find Trump obstructed justice. And we’re going to make it public,” the group tweeted.

Justice Department officials had argued the document was redacted to protect internal discussions about making a decision about whether to prosecute, but the three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit agreed with a lower-court judge who found Barr had already concluded Trump would not be charged with a crime.

“The court’s … review of the memorandum revealed that the Department in fact never considered bringing a charge,” the panel wrote in its opinion. “Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller Report.” The panel added: “We affirm the district court.”

A redacted version of the memo was released last year. The legal and factual analysis sections, which remained under seal at the time, stretched most of the document, starting a little more than halfway down the second page.

One key passage, as noted by journalist Jason Leopold, appears on the seventh page. “The conduct under investigation is based entirely upon ‘directions’ by the President to subordinates to take actions on his behalf that they did not undertake,” the passage says.

Mueller, a former FBI director, was appointed special counsel in May 2017 after Trump fired FBI Director James Comey. The FBI’s Crossfire Hurricane counterintelligence investigation, which was examining links between Russia and Trump’s 2016 campaign, was wrapped into that effort. Andrew McCabe, who became acting FBI director, said in 2019 he was the one who ordered an obstruction of justice inquiry into Trump after the firing of Comey to ensure the Russia investigation would not “vanish in the night without a trace.”

Prior to the release of Mueller’s report in April 2019, Barr submitted a summary letter to Congress that said the special counsel did not find evidence to establish a criminal conspiracy and did not come to a conclusion about whether to charge Trump with obstruction of Justice. Barr said he and Deputy Attorney General Rod Rosenstein concluded that it was not sufficient to establish criminality on that front.

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, in his report, said he could not establish a criminal conspiracy between Russia and the Trump campaign. He also outlined 10 instances of possible obstruction of justice, including a desire by Trump to fire Mueller, but did not reach any conclusions on them. The special counsel also 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.”

Although some people, including former Gov. Chris Christie at the time, argued Mueller contradicted what Barr said about obstruction, the Justice Department and the Special Counsel’s Office later put up a united front to end the rampant speculation that Mueller differed from Barr on the decision-making on whether Trump could be charged with obstruction of justice. Further, citing long-standing DOJ Office of Legal Counsel policy, Mueller said he never considered charging a sitting president with a crime and noted that doing so would be unconstitutional.

The memo for Barr, dated March 24, 2019, was written by Steven Engel, who was the assistant attorney general for the Office of Legal Counsel, and Edward O’Callaghan, principal associate deputy attorney general. “Having reviewed the Report in light of the governing legal principles, and the Principles of Federal Prosecution, we conclude that none of these instances would warrant a prosecution for obstruction of justice, without regard to the constitutional constraint on bringing such an action against a sitting President,” a newly disclosed passage in the memo asserts.

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Still, in reacting to the memo’s disclosure on Wednesday, CREW said Barr used the memo to “undermine” Mueller’s report.

“The memo presents a breathtakingly generous view of the law and facts for Donald Trump. It significantly twists the facts and the law to benefit Donald 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. Among many other problems, it is premised on the fact that there was no underlying criminal conduct, which is not what Mueller found, and waves its hand at there being no exact precedent to compare it to,” CREW said on its website. “The memo supports the chilling conclusion that any president can interfere with any investigation if they believe it could damage them politically. It is clear why Barr did not want the public to see it.”

The Russia investigation, which Trump derided as a “witch hunt,” is now under review by special counsel John Durham. Trump thanked CREW for successfully suing to release the memo, highlighting a number of passages that he said indicated there was not sufficient evidence to charge him, and then alluded to the recent FBI raid of his Florida residence in a separate matter.

“CREW is devastated by these findings, that they worked so hard to ‘expose,’ but may now move on to the even more ridiculous Witch Hunt that has already caused a great Mar-a-Lago Red Wave with the voters of our Nation!” Trump said in a statement.