By order of the DC Circuit Court of Appeals, the Justice Department on Wednesday posted a memo 2019 used by former Attorney General William Barr to justify his decision not to prosecute then-President Donald Trump for obstruction of justice arising from of Robert Mueller’s investigation of Russia.
The department originally released a redacted version of the memo in May 2021, following a Freedom of Information Act lawsuit brought by watchdog group Citizens for Responsibility and Ethics in Washington (CREW). This version fully redacted more than six of the 10 pages of the memo.
On Friday, however, a panel of DC Circuit judges ordered the release of the full memoupholding a district court ruling that found Barr and other DOJ officials were not candid in their statements on the role the memo played in their decision not to indict Trump.
DOJ officials previously told the court that the memo should not be made public because it involved internal departmental deliberations and advice given to Barr on whether Trump should face prosecution.
But a district judge ruled that Barr had never been involved in such a process and had already decided not to indict Trump.
The full memo released Wednesday outlines the rationale given to Barr by Steven Engel, the former head of the DOJ’s legal counsel office, and Ed O’Callaghan, then senior associate deputy attorney general.
The two attorneys wrote that former special counsel Mueller’s report on his Trump and Russia investigation “does not identify any actions that we believe constituted acts of obstruction, committed in connection with a proceeding in course, with the corrupt intent necessary to justify prosecution for obstruction of justice.”
Engel and O’Callaghan wrote that their decision was made independently of whether Trump was already immune from prosecution because of his status as sitting president.
While Mueller’s report meticulously documented potential obstructive acts committed by Trump before and after his appointment as special counsel, Mueller said he declined to determine whether Trump committed a crime based on the policies of the DOJ and “principles of fairness”.
In both a public statement and hours of testimony before Congress in 2019, Mueller also directly rebutted Trump’s claims that his report “exonerated” Trump.
“That’s not what the report says,” Mueller said in testimony.
In their memo, Engel and O’Callaghan detailed multiple justifications for declining to prosecute Trump for actions stemming from the Mueller report, which set out 10 possible cases of obstruction of justice investigated by the special counsel’s team. .
They wrote that the cases in Mueller’s report were not similar to “any reported cases” that the DOJ had previously charged under obstruction of justice laws and described Mueller’s obstruction theory. as “novel” and “unusual” because of the conclusion he reached in the first volume of his report – that the evidence developed “was not sufficient to charge any member of the Trump campaign with conspiring or coordinating with a representative of the Russian government to interfere in the 2016 elections”.
“It would be rare for federal prosecutors to bring a lawsuit for obstruction that does not itself arise out of a separate crime proceeding,” the memo states.
Engel and O’Callaghan wrote that “much of ‘Trump’s conduct in the report’ amounted more to attempts to alter the process in which the special counsel’s investigation was progressing, rather than efforts to intentionally alter or modify evidence…that would negatively impact the special advocate’s ability to obtain and develop evidence.”
Their memo goes into detail to refute some investigative leads Mueller’s team pursued while investigating Trump’s potentially obstructive actions.
Engel and O’Callaghan wrote that they did not believe Trump’s actions regarding his firing of FBI Director James Comey constituted obstruction, as his behavior could “legibly be explained by his desire that the FBI Director or other members of the administration inform the public that he was not under investigation.”
They wrote that they believed Trump’s alleged efforts to have the charges against his former national security adviser Mike Flynn dropped did not constitute criminal obstruction. In their view, 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 react at the time as if he had received a direct order from the president.
The memo analyzed Trump’s actions after learning of Mueller’s nomination and when he learned that his investigators had opened a separate investigation into possible obstruction of justice.
“Most of the conduct identified consists of seemingly legal actions that are part of the president’s constitutional responsibility to oversee the executive branch,” Engel and O’Callaghan wrote. “And there is considerable evidence that the president took these official actions not for an unlawful purpose, but rather because he believed the investigation was politically motivated and undermined his administration’s efforts to govern.”
They also noted that despite Trump’s actions in ordering his White House lawyer to fire Mueller at some point or asking a senior official to get Attorney General Jeff Sessions – Barr’s predecessor – to restrict the Mueller’s investigation, “none of his requests to change the supervision of the investigation were actually carried out.”
“In each case, if the president really wanted to provoke these actions, he could have done it himself,” Engel and O’Callaghan wrote. “Of course, it is true that an act may constitute an attempt or an effort, even if it failed. not having transmitted his instructions weigh against the finding an intent to obstruct justice.”
Engel and O’Callaghan wrote, however, that other acts by Trump, such as his comments related to witnesses in the Mueller investigation — condemning those who cooperated while praising those who remained silent — “more directly implicate the obstruction law concerns.”
Yet, they wrote, none of the cases “indicate that the President sought to conceal evidence of criminal behavior and there is insufficient evidence to prove beyond reasonable doubt that he sought to provide false evidence to investigators”.