The Justice Department fought the release of the memo for years, arguing it was part of a deliberative process advising Barr on what to do in response to Mueller’s report. However, the judges concluded that at the time the memo was written, Barr had already decided not to indict Trump, so the issues raised in the memo were moot and not related to a pending decision.
Citizens for Responsibility and Ethics in Washington, a liberal watchdog group, sued under the Freedom of Information Act three years ago in an attempt to make the memo public.
The Ministry of Justice lost first round in visitation case before a district court judgewho ruled that the agency’s claims that the memo was part of some kind of charging decision were “dishonest” because that decision had already been made.
On appeal, department attorneys changed course and argued that the memo helped shape the public statements Barr would make about why he concluded there was insufficient evidence to support a criminal charge — even if Trump was not president.
However, a DC Circuit Court of Appeals panel ruled last week this argument that the memo was part of the deliberations around a communications effort surfaced too late to be considered.
The Justice Department had the option of asking the full DC Circuit bench to rehear the case or seek a Supreme Court reconsideration, but officials said Wednesday they’ve decided to let those options pass. .
In the memo that sparked the fight against disclosure, Engel and O’Callaghan concluded that Trump’s conduct primarily reflected frustration with the Mueller investigation and what he perceived to be the policy behind it, as well as reporting that they sincerely believed Trump sincerely believed to be flawed. They also suggested that Trump’s urgings of some of his key allies against “turning around” were intended to prevent them from giving false testimony – not to cover up the truth.
Officials have repeatedly pointed out that Mueller did not find sufficient evidence to charge an underlying crime, which they say weighs against the possibility that Trump violated obstruction laws.
“Absent an underlying offense, the most compelling conclusion for assessing the President’s conduct is that he reasonably believed the special counsel’s investigation was interfering with his agenda for government,” Engel and O’ wrote. Callaghan.
Engel would later become a key point of resistance to Trump’s efforts to use the Justice Department to help overturn the 2020 election. Engel was one of three Trump-era Justice Department witnesses to testify during of a Jan. 6 public select committee hearing and discussed his threat to resign, with other top department officials, if Trump had a plan in place to replace the department. leadership with figures who would support his attempts to stay in power.
An Office of Legal Counsel opinion issued in 1973 — and reaffirmed in 2000 — concluded that federal criminal charges were inadmissible while a president is in office.
However, some lawyers have urged Attorney General Merrick Garland to reconsider Barr’s decision not to indict Trump. They note that the Justice Department has generally held that former presidents could be prosecuted for acts committed while in office, although this has never happened.