A government watchdog group had sued over the publication of the memo, arguing that the department had dishonestly kept it secret. A federal judge agreed, and an appeals panel last week upheld the judge’s opinion and ordered the memo made public.
The memo was drafted by two senior Justice Department officials for Attorney General William P. Barr, who later told Congress there was not enough evidence to charge Trump with obstructing the investigation. of Muller. A redacted version was published last year, leaving the legal and factual analysis under seal.
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The newly released analysis shows that Steven A. Engel, then head of the Office of Legal Counsel, and Edward O’Callaghan, then a senior Justice Department official, concluded that Mueller had “failed to identify sufficient evidence to prove a criminal offense beyond a reasonable doubt.”
Pursuing such a case, the memo says, could expand obstruction laws to apply to a wide range of officials taking actions “that could influence an investigation” and would raise “serious concerns.” issues of public order and constitutional law that would weigh against the prosecution of criminal charges except in the clearest of cases.
The memo analyzes several instances of possible Trump obstruction cited by Mueller. During the first months of his presidency, Trump reportedly pressured FBI Director James B. Comey to drop an investigation into former Trump aide Michael Flynn. Comey wrote in a memo that Trump told him, “Hope you can let it go.”
The Justice Department memo also examined whether Trump obstructed justice by seeking to have Mueller fired or whether his investigation was halted after the Washington Post reported in June 2017 that Mueller was investigating Trump for possible obstruction.
In both cases, the memo concludes there was insufficient evidence to support the obstruction charges. Mueller’s team could not show that Trump took specific steps to thwart the investigation, the memo argued, concluding that there were no “clear violations” of the law.
Citizens for Responsibility and Ethics in Washington, the nonprofit that sued for the release of the document, argued that the public deserved to know the legal rationale for not indicting Trump. In a written statement Wednesday, the group said the memo “presents a jaw-dropping view of the law and the facts for Donald Trump. This dramatically distorts the facts and the law to benefit Donald Trump and does not correspond to a serious reading of the Obstruction of Justice Act or the facts as found by Special Counsel Mueller.
Justice Department officials had argued that the document was protected because it involved internal deliberations over a decision by the prosecution. But the appeals judges ruled that Mueller and Barr had clearly already concluded that a sitting president could not be charged with a crime. The discussion centered on how Barr would publicly characterize the obstruction evidence Mueller had gathered, the Justice Department acknowledged on appeal.
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Briefing lawmakers on the issue in 2019, Barr said that since Mueller declined to come to a conclusion on obstruction of justice, Barr and his deputy themselves determined the evidence was lacking. When Mueller’s full report was released weeks later, the special counsel’s office said there was “substantial evidence” of obstruction. Muller also wrote a letter to Barr saying the attorney general misinterpreted his team’s work.
The fight over the document has put Attorney General Merrick Garland’s office in the awkward legal position of defending efforts under his predecessor that federal courts have deemed dishonest.
Last year, U.S. District Judge Amy Berman Jackson slammed the Justice Department’s justification for keeping the memo secret as “dishonest… misleading and incomplete.” After reading the memo itself, she said, it was clear that indictment of Trump had not been contemplated and “the fact that he would not be prosecuted was a given.”
She ordered the release of the documents.
The Ministry of Justice appealed this decision. The appeals court not only unanimously asserted that the records should be made public, but echoed Jackson in concluding that the government “created a false impression” and therefore could not prevent the release of the memo in under the Freedom of Information Act.
During oral argument in December, Assistant Deputy Attorney General Sarah Harrington said “we could have been clearer,” but that “we never said” Barr was pressing charges against Trump.
“Nobody would have believed us,” she said. What the Justice Department meant, she said, was that Barr’s deputies were analyzing the evidence to decide “what to say if anything publicly.”