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WASHINGTON — The Justice Department on Wednesday released the unredacted version of a 2019 memo that made the case to then-Attorney General William Barr that President Donald Trump should not be charged with obstruction of justice in the Russia investigation.
The nine-page memo from Mar. 24, 2019, was written by then-Assistant Attorney General for the Office of Legal Counsel Steven Engel and Ed O’Callaghan, who served as the DOJ’s principal associate deputy attorney general. Barr, a critic of then-special counsel Robert Mueller’s probe, had announced that DOJ would not prosecute the case the same day the memo was sent to Barr.
Released in response to a lawsuit by a government watchdog group, the memo states that volume II of Mueller’s report “is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes.” It was made public following a ruling from the U.S. Court of Appeals for the District of Columbia Circuit.
Even if there weren’t any constitutional barriers to charging a president, the memo argued, the DOJ should decline to charge Trump.
The Mueller probe did not establish any “underlying crime related to Russian interference” and it wasn’t clear that Trump didn’t want the investigation, the memo’s authors wrote in their rationale against bringing charges.
“In the absence of an underlying offense, the most compelling inference in evaluating the President’s conduct is that he reasonably believed that the Special Counsel’s investigation was interfering with his governing agenda,” the memo states. “Even if the President were objectively wrong about the intentions of the Special Counsel, many, if not all, of his actions could be viewed as lacking the intent element under the relevant statutes.”
Barr cited the memo by the department’s Office of Legal Counsel as a reason for not pursuing the charges against Trump after he received Mueller’s report on Russian interference in the 2016 presidential election. The portion of the memo that Barr cited was released last year.
When the left-leaning watchdog group Citizens for Responsibility and Ethics in Washington (CREW) sought the memo under the Freedom of Information Act, the DOJ argued it wasn’t required to release the document under an exception covering materials intended to aid senior officials in making decisions.
In a ruling last year, U.S. District Court Judge Amy Berman Jackson criticized the government’s position, saying the memo did not fit the exemption for “deliberative” documents. In an earlier ruling, she said Barr’s mind had already been made up before the memo was written.
The Justice Department appealed the decision ordering the release of the full document, but the U.S. Court of Appeals for the District of Columbia Circuit ruled against DOJ last week. “Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege,” the ruling said.
The Mueller report identified 10 episodes that could be considered potential obstruction of justice, but did not come to a conclusion on whether to charge the president for them.
After reading the Mueller report, many people had strongly disagreed with the analysis laid out in the memo. Hundreds of former federal prosecutors argued in an open letter that Trump would have been charged with obstruction were he not president.
In a statement Wednesday, CREW said the unsealed portions of the memo present “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.”
Read the memo below.
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